Communications Regulation Act, 2002
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Opening of public road for establishment of underground electronic communications infrastructure. |
53.—(1) A network operator shall not commence or carry out or cause to be commenced or carried out any road works unless— | |
(a) the operator has obtained the prior written consent under subsection (3) of the road authority, in whose functional area the operator proposes to carry out the road works, and | ||
(b) the network operator or any person engaged by the operator complies with any conditions contained in the consent. | ||
(2) A network operator or a person engaged by the network operator who contravenes subsection (1) is guilty of an offence and is liable— | ||
(a) on summary conviction, to a fine not exceeding €3,000, or | ||
(b) on conviction on indictment, to a fine not exceeding €1,000,000. | ||
(3) Subject to this section and any regulations under section 56 (2), a road authority may grant consent to a network operator, upon application to it by the operator, to open a public road in the functional area of the road authority for the purposes of— | ||
(a) establishing underground electronic communications infrastructure and any associated physical infrastructure, | ||
(b) extending the underground electronic communications network to parts of the road under which electronic communications infrastructure has not previously been placed by that network operator, or | ||
(c) carrying out work upon underground electronic communications infrastructure, being maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure which requires the opening of the road, | ||
subject to any conditions contained in the consent. | ||
(4) Any conditions contained in a consent— | ||
(a) shall not discriminate unfairly between network operators, and | ||
(b) shall be consistent with the need for the road authority to carry out its functions under this Part and under the Roads Acts, 1993 to 2001, and the Road Traffic Acts, 1961 to 2002, | ||
and the road authority granting the consent shall notify the network operator, in writing, of the reason for such conditions. | ||
(5) A road authority may, subject to any regulations under section 56 (2), impose charges on network operators— | ||
(a) for the grant of consents to cover the administrative costs, including costs involved in monitoring compliance with consents, incurred by the road authority under this section, and | ||
(b) for reasonable costs it may incur in making good long term damage to a road as a result of road openings carried out by the network operator. | ||
(6) When considering an application for a consent, a road authority shall have regard to— | ||
(a) the existing and potential use and availability of space under the surface of the road concerned, including— | ||
(i) the course and depth of ducts to be laid by the applicant, | ||
(ii) the existence of ducts in addition to those which are immediately required by any network operator, and | ||
(iii) the existence of duct space in addition to that which is reasonably required by any network operator, | ||
(b) traffic control, | ||
(c) the protection of the environment and of amenities including residential amenities, | ||
(d) the manner and timing of the reinstatement of the road, and | ||
(e) any scheme adopted under subsection (7). | ||
(7) A road authority may formulate and, after public consultation, adopt a scheme setting out its policy regarding— | ||
(a) the use of underground road capacity, including the rationing of any particular underground spaces below roads, | ||
(b) conditions (including restrictions and requirements) that may be imposed by it in relation to the grant of consents, either generally or with respect to specific areas or circumstances, | ||
(c) refusal of consents, either generally or with respect to specific areas or circumstances, | ||
(d) charges for consents and provision for repair of long term damage to roads, | ||
(e) emergency roadworks. | ||
(8) The Minister for the Environment and Local Government, in consultation with the Minister, may issue guidelines to be followed by a road authority in relation to public consultation regarding a scheme drawn up by it under subsection (7). | ||
(9) A road authority shall consult with the Commission before attaching a condition to a consent requiring the applicant to lay additional ducts. | ||
(10) Where the holder of a consent fails to comply with any condition attached to a consent, the road authority which granted the consent may withdraw the consent. | ||
(11) Where a road authority proposes— | ||
(a) to refuse to grant consent, | ||
(b) to grant consent subject to conditions, or | ||
(c) to withdraw a consent granted by it, | ||
the road authority shall notify the network operator concerned in writing of the proposal and shall include in the notification a statement of the reasons for the proposal and of the right of the network operator to make representations to the authority under subsection (12). | ||
(12) A network operator may, within 21 days of the receipt by the operator of a notification under subsection (11), make representations to the road authority in relation to the proposal. | ||
(13) (a) Where, after consideration of any representations made by the network operator under subsection (12), a road authority decides— | ||
(i) to refuse to grant consent, | ||
(ii) to grant consent subject to conditions, or | ||
(iii) to withdraw its consent, | ||
the road authority shall, not more than 21 days after the expiration of the period specified in subsection (12), notify the network operator in writing of its decision and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (14). | ||
(b) Where a road authority does not receive representations from the network operator within the period specified in subsection (12), the road authority shall, not more than 21 days after the expiration of that period, notify the network operator in writing of its decision— | ||
(i) to refuse to grant consent, | ||
(ii) to grant consent subject to conditions, or | ||
(iii) to withdraw its consent, | ||
and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (14). | ||
(14) A network operator may, within 28 days of the receipt by the operator of a notification under subsection (13), appeal to the High Court against the decision concerned and the Court may— | ||
(a) confirm the decision, | ||
(b) amend the decision, or | ||
(c) direct the road authority to grant the consent or refrain from withdrawing consent, as the case may be. | ||
(15) Subject to section 56 (2), a network operator shall not require the consent of a road authority to carry out emergency roadworks, but shall inform the road authority of such roadworks as soon as practicable in advance of the commencement of those roadworks. | ||
(16) A network operator shall be responsible for all costs incurred in the reinstatement of a road which the operator has opened for the purpose of— | ||
(a) the establishment of underground electronic communications infrastructure, or | ||
(b) maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure, | ||
to a standard satisfactory to the road authority. | ||
(17) The requirement to hold a licence under section 254 of the Act of 2000 in respect of subsection (1)(e) of that section does not apply where a network operator has obtained a consent. | ||
(18) A network operator shall, on a request being made by a road authority, provide among other things— | ||
(a) such information as the road authority may require in relation to the utilisation of underground electronic communications infrastructure owned or operated by the operator, and | ||
(b) such access to underground electronic communications infrastructure owned or operated by the operator, | ||
as may be necessary to enable the road authority to exercise its functions under this section. | ||
(19) A road authority may apply to the High Court for an order— | ||
(a) by way of injunction, to prohibit any non-compliance, or | ||
(b) by way of mandamus, to direct any compliance, | ||
with a requirement of this section and the Court may grant such order as it sees fit. | ||
(20) This section is without prejudice to section 101D (inserted by the Dublin Transport Authority (Dissolution) Act, 1987 ) of the Road Traffic Act, 1961 (which relates to directions given by local authorities to persons carrying out roadworks). | ||
(21) A summary offence under subsection (2) may be prosecuted by the road authority within whose functional area the offence is committed. |