Schedule 1: The electronic communications code Part 4: Power of court to impose agreement
Part 4 makes provision for the imposition by the court of an agreement conferring code rights where such an agreement cannot be reached consensually under Part 2. The power of the court to impose agreements and the granting of compulsory access to land was an essential part of the existing code (see paragraph 5 of the existing code). The meaning of "the court" is set out in Part 16.
	Paragraph 20 sets out the circumstances in which the court can impose an agreement. It replicates much of the effect of paragraphs 5(1), 5(2) and 5(7) of the existing code.
	Paragraph 21 sets out the threshold test that the court must apply and the conditions that must be met for imposing an agreement. It replaces the test in paragraph 5(3) of the existing code. The court must have regard to any prejudice to the site provider and whether it can be compensated for, as well as the public benefit likely to arise from any order imposing code rights. Where both these requirements are met, the court may – but is not obliged to – impose an agreement. Nothing in these provisions prevents the court from having regard to other factors in deciding whether this is appropriate. (It should be noted that Part 12 of the code sets out who, other than the person whose agreement is required for apparatus to be installed on land, has the right to object to the proposed installation of apparatus).
	Paragraph 22, like paragraph 5(7) of the existing code, provides that the court’s order takes effect as an agreement under Part 2 of the code. This means any provisions applicable to an agreement reached in accordance with Part 2 of the code will apply to an agreement imposed by the courts in the same way as they apply to an agreement reached without the court’s intervention. For example: the rights to assign an agreement or to upgrade and share apparatus set out in paragraphs 16 and 17 will apply to a court imposed agreement as if it had been reached under Part 2 of the code.
	Paragraph 23 sets out key terms that the court must include, or consider including, in the court-imposed agreement. It contains provisions corresponding to paragraphs 5(4) and 5(5) of the existing code. Paragraph 23(2) provides that the court must include any terms that it considers appropriate. This might include, for example, that an operator may share their apparatus with another, in circumstances where the extent of the sharing sought goes beyond that provided by the statutory right to share in paragraph 17. The inclusion of such a term, conferring a contractual right on an operator, would be taken into account also in determining the consideration to be paid to the site provider in accordance with paragraph 23(3).
	Paragraph 24 makes provision for how consideration (the price) is assessed for the rights that the court has ordered. This is to be assessed as the market value of the rights being granted and of the particular terms of the agreement. The market value excludes any additional value deriving from electronic communications use, i.e. it is "no scheme" value. The value of the rights contained in paragraphs 16 and 17, which relate to the assignment of an agreement or to upgrading and sharing apparatus, is specifically excluded from the assessment of market value, to ensure that no "premium" is added for rights conferred by statute, not by agreement.
	Paragraph 25 provides for the court to order an operator to pay compensation to a person bound by a code right for loss or damage as a result of the imposition of the code right on usual compensatory principles. Paragraph 84 makes further provision about such compensation.
	Paragraph 26 provides that an operator may apply for "interim code rights". This enables code rights to be granted on an interim basis pending the parties reaching, or the court imposing, a final agreement. Rights may be granted on an interim basis either (a) where the parties agree to the making of the order and the terms of the interim agreement (which may be the case, for example, where the only issue not agreed between them is the consideration to be paid); or (b) when the court considers that there is a good arguable case that the interim code right will be made permanent at a final hearing. If the right is not made permanent at a final hearing, the interim right ends and the operator must remove the apparatus in accordance with Part 6. The power to order interim code rights was not part of the existing code in Schedule 2 to the Telecommunications Act 1984.
	Paragraph 27 provides for the court to be able to grant "temporary code rights" on application by the operator. It corresponds to paragraph 6 of the existing code. This right is different from an interim code right in that it arises where there is existing apparatus already on the land, but the operator has no right to keep it installed and accordingly requires temporary code rights to maintain the apparatus and the network service while they seek permanent rights. The temporary code rights will continue until either the operator has secured permanent code rights or the person with interest in the land has secured the right to enforce removal of the apparatus. When assessing whether or not new permanent code rights should be granted, the court must disregard the fact that the apparatus is already on the land.