Schedule 2: The electronic communications code: transitional provision
This Schedule sets out transitional provisions connected with the new electronic communications code in Schedule 1 coming into force. This Schedule provides for agreements made under the electronic communications code set out in Schedule 2 to the Telecommunications Act 1984 (defined for transitional purposes as the "existing code"), and for other rights and matters affected by that code, to transition to the code in Schedule 1 of this Act which Section 4(2) of the Act inserts as Schedule 3A to the 2003 Act (and which is defined for transitional purposes as the "new code"). Further transitional provision may be made by regulations pursuant to Section 5 of the Act.
	Paragraph 1 defines key terms used in Schedule 2, including a "subsisting agreement" (an agreement made under paragraph 2 or 3 of the existing code in Schedule 2 to the Telecommunications Act 1984) or an agreement imposed by the court under paragraph 5 of the existing code.
	Paragraph 2 provides that on commencement of the new code, subsisting agreements have effect as if made under the new code, save as modified by this Schedule. It also provides that a person bound by a right under the existing code is treated as bound by the corresponding right under the new code.
	Paragraph 3 provides that references to a code right in the new code are, in relation to subsisting agreements, to be read as references to the corresponding rights in paragraphs 2 and 3 of the existing code.
	Paragraph 4 preserves the effect of paragraph 2(3) of the existing code for transitional purposes as it relates to subsisting agreements. However, because paragraph 2(3) of the existing code has no corresponding provision in the new code, paragraph 7(2) of Schedule 2 (see below) ensures that paragraph 2(3) of the existing code ceases to have effect when the subsisting agreement comes to an end.
	Paragraph 5 provides that Part 3 of the new code (the assignment of code rights, upgrading and sharing provisions) does not apply to subsisting agreements, or to rights conferred under the new code that depend on rights under a subsisting agreement. The purpose of this paragraph is to avoid retrospective effect of paragraphs 16 and 17 of the new code.
	Paragraphs 6 and 7 make transitional provision in relation to Part 5 of the new code (termination and modification of agreements). The purpose of paragraph 29 of the new code is to delineate when the statutory continuity provisions of Part 5 of the new code apply and when, instead, the continuity regime in the Landlord and Tenant Act 1954, and Business Tenancies (Northern Ireland) Order 1996 applies. Paragraph 6 of Schedule 2 delineates which continuity provisions apply for transitional purposes, and so specifies those subsisting agreements to which Part 5 of the new code will not apply. Paragraph 7(1) provides that (unless excluded by paragraph 6 above) Part 5 of the new code applies to a subsisting agreement, with the modifications set out in paragraphs 7(2) to 7(4). The modification in paragraph 7(2) is made because there is no corresponding provision in the new code to paragraphs 2(2)(c) and (3) of the existing code; and the modification in 7(3) in order to avoid retrospectively applying to a subsisting agreement the 18 month period in paragraph 31(3)(a) of the new code. Paragraph 7(4) ensures that when the court comes to determine the terms of a new agreement it is not required to take into account the consideration payable under the terms of the subsisting agreement. This is so that the basis of consideration, once a new agreement is agreed or imposed under the new code, (see paragraph 24 of the new code) is applied without reference to the consideration agreed under the different provisions of the existing code.
	Paragraph 8 concerns rights in relation to street works, flying lines, tidal waters and linear obstacles. Paragraph 8(1) provides that paragraphs 9 to 14 of the existing code dealing with these rights will continue to apply to anything (including works, notice procedures, proceedings, or other matters) already in the process of being done when the new code comes into force. Paragraph 8(2) provides that any apparatus lawfully installed under paragraphs 9 to 14 is to be treated as installed under the corresponding new provisions in the revised code. Paragraph 8(3) sets out the corresponding provisions in the new code.
	Paragraph 9 provides that an agreement for the purposes of paragraph 11(2) of the existing code in relation to tidal water or lands in which there is a Crown interest has effect as an agreement for the purposes of paragraph 64 of the new code.
	Paragraph 10 provides that agreements under paragraph 15 of the existing code (which relate to certain specified conduits) are treated as having the same effect as if made under the like provision in the new code.
	Paragraphs 11 and 12 make transitional provision in relation to notices given under paragraph 5(1) of the existing code (requesting an agreement for rights) and applications to the court for code rights made under the existing code.
	Paragraph 13 makes transitional provision in relation to an application or order for temporary code rights made pursuant to paragraph 6 of the existing code.
	Paragraph 14 provides that the repeal of the existing code does not affect rights to compensation that arise in relation to matters that occurred before repeal.
	Paragraph 15 preserves existing rights and obligations under paragraph 17 (objections to overhead apparatus) and paragraph 18 (obligation to affix notices to overhead apparatus) of the existing code, where the relevant apparatus was installed before the new code comes into force.
	Paragraph 16 provides that the repeal of the existing code will not affect rights under paragraph 20 of the existing code (power to require alteration of apparatus) in relation to apparatus installed before the new code comes into force. The effect of paragraph 20 of the existing code is not replicated in the new code, accordingly paragraph 16(1) is intended to ensure that persons who have rights under paragraph 20 of the existing code do not lose them. An exception to this principle is made in paragraph 16(2) for persons who become party to or bound by an agreement under the new code. This is because such persons will in appropriate circumstances (see paragraph 23(8)(b) of the new code) be able to secure rights similar to those in paragraph 20 of the existing code. Paragraph 16(3) makes clear that the exception in paragraph 16(2) applies only to new agreements under the new code and not to a "subsisting agreement" (see paragraph 2 of Schedule 2).
	Paragraph 17 provides that Part 12 of the new code (rights to object to certain apparatus) applies only to apparatus installed after the new code comes into force. (See paragraph 15 above in relation to apparatus installed before the new code comes into force).
	Paragraphs 18 and 19 make transitional provision in relation to the right to cut back trees that overhang the street and make clear the circumstances in which a contested right to cut back trees is dealt with under the provisions of the existing code.
	Paragraph 20. Paragraph 21 of the existing code makes provision for the right to require removal of apparatus (for example when code rights have ceased) and for restrictions on the right to require removal (for example so that the operator may contest removal by applying for new rights). Paragraph 20 of Schedule 2 provides that paragraph 21 of the existing code will continue to apply for transitional purposes if, before the existing code is repealed, a notice requiring removal of apparatus was served under paragraph 21 of the existing code.
	Paragraph 21. Paragraph 23 of the existing code and Part 10 of the new code both contain similar rules that apply when the works required by other statutory undertakers affect electronic communications apparatus. Paragraph 21 of Schedule 2 clarifies when the relevant provisions of the existing code, notwithstanding its repeal, will continue to apply to such works.
	Paragraphs 22 and 23 are self-explanatory.
	Paragraphs 24 to 25 make additional transitional and saving provisions dealing with the giving of notices, avoiding double compensation and other supplementary matters.