SCHEDULES

SCHEDULE 10PROTECTIVE PROVISIONS

PART 2PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

schedule 10 part 2 paragraph 1 + 1.—(1) For the protection of any operator, the following provisions have effect unless otherwise agreed in writing between the undertaker and the operator.

(2) In this part of this Schedule—

term electronic communications apparatus + “electronic communications apparatus” has the same meaning as in the electronic communications code;

term the electronic communications code + “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

term electronic communications code network + “electronic communications code network” means—

term electronic communications code operator + “electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;

term infrastructure system + “infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 of that code; and

term operator + “operator” means the operator of an electronic communications code network.

schedule 10 part 2 paragraph 2 + 2.  The exercise of the powers of article 34 (statutory undertakers) are subject to Part 10 of Schedule 3A (the electronics communications code) to the 2003 Act.

schedule 10 part 2 paragraph 3 + 3.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—

schedule 10 part 2 paragraph 3 1 an1 + (a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works, or other property of an operator); or

schedule 10 part 2 paragraph 3 1 bn1 + (b)there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and must make reasonable compensation to an operator—

schedule 10 part 2 paragraph 3 1 an2 + (a)for loss sustained by it; and

schedule 10 part 2 paragraph 3 1 bn2 + (b)in respect of claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, an operator by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand may be made without the consent of the undertaker which, if it withholds such consent, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between the undertaker and the operator under this paragraph must be referred to and settled by arbitration under article 46 (arbitration).

schedule 10 part 2 paragraph 4 + 4.  This part of this Schedule does not apply to—

schedule 10 part 2 paragraph 4 a + (a)any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

schedule 10 part 2 paragraph 4 b + (b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

schedule 10 part 2 paragraph 5 + 5.  Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.