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Utilities and Services (Regulation of Certain Works) Act (Cap. 81) Consolidated

CHAPTER 81

UTILITIES AND SERVICES (REGULATION OF CERTAIN WORKS) ACT

To regulate certain works in connection with utilities and other services.

7th August, 1934

ORDINANCE XXIII of 1934, as amended by Ordinance XLV of 1935; Government Notice No. 296 of 1939; Ordinance XX of 1961; Legal Notice

4 of 1963; Acts: XXIV of 1963, XXIV of 1966, XVI of 1975; Legal Notice

148 of 1975; Acts: XI of 1977, XIII of 1983, XII of 1991, XXXIII of 1997, XXIII of 2000 and VII of 2004; Legal Notice 408 of 2007; and Acts XV of

2009 and IX of 2011.

Substituted by: XXIII.2000.30.

1. The short title of this Act is Utilities And Services

(Regulation of Certain Works) Act.

2. In this Act -

"ele ctrica l powe r and e l e c tr oni c commun i catio ns network s " includes any electrical power or communication line or instrument however so described used for the supply of power or for electronic communications;
"electro nic commun i cati ons netw orks" and "electro nic comm un icatio ns service" shall r e spectively hav e the sam e meanings as under the Electronic Comm unications (Regulation) Act;
"Mi n ister" m eans, ex cept f o r th e p u rposes of article 11 , the Minister respon si ble for en ergy or t he Min ist er resp onsible for telecommunications as the case may be;
"owner" includes occupier and user;
"Regulator", in relation to a public utility or service, means -
(a) in the case of works in connection with the supply of energy, the person or authority designated as such Regulator by the Minister;
(b) in the case of works in connection with any electronic communications service and, or electronic communications networks, the Malta Communications Authority as established under the Malta Communications Authority Act;
(c) in the case of works in connection with any other services, the person or authority designated by the Minister as Regulator in relation to any such service or group of services;
"tenem ent" means any tenement and includes any road, path, building, or water.

Short title. Substituted by: XXIII.2000.30.

Interpretation. Amended by: XLV.1935.2.

See Govt. Notice No. 296 of the 3rd July, 1939.

XX. 1961.17; L.N. 4 of 1963; XXIV.1963.45;

XXIV. 1966.14; XVI.1975.50; XII.1991.42;

XXXIII.1997.44. Substituted by: XXIII.2000.30.

Amended by: VII. 2004.41. Cap. 399.

Cap. 418.

Object of this Act. Substituted by: XXIII.2000.30. Amended by:

VII. 2004.42.

Power of the Authority for Transport in Malta. Amended by:

L.N. 4 of 1963; XI. 1977.2.

Substituted by: XXIII. 2000.30. Amended by:

VII. 2004.43; XV. 2009.49; IX. 2011.62.

3. The electrical power and electronic communications networks in Malta and any other service for which a Regulator is designated under this Act shall be regulated by the provisions of this Act.

4. (1) For the purposes of this Act, it shall be lawful for the Authority for Transport in Malta to order that cables and wires be placed or other works be carried out either below, above or by the side of any tenement and that trenches, pits, poles, stays, brackets and all other accessories essential to the p roper working of the electrical power and telecommunication systems be cut, placed, erected in or affixed to any tenement; and any such order shall be notified to the owner of the said tenement at least ten days prior to the carrying out of any of the works aforesaid.

(2) The Authority for Transport in Malta may, after consultation with the Malta Communications Authority, also order the collocation or the use of the same facilities in relation to any cable s, wires or other acc es sories used or to be used for the provision of any electronic communications service or any other any utili ties or services by a p r ovid e r of su ch elect r onic co mmun i catio ns serv ice or ot her uti lit ies o r serv ices in any trenches, pits, ducts or on any poles, stays or brackets, cut, placed,
erected or af fixed by anothe r provider of an electronic communications service or of other utilities or services; and any such order shall be notified to the provider who shall have erected or affixed the facilities to be the subject of collocation or to be so used, at least ten days prior to the carrying out of any of the works aforesaid:
Provided that the Authority for Transport in Malta shall before issuing an order under this subarticle, afford a reasonable opportunity to all interested parties to express their views.
(3) An order made under subarticle (1) or (2) shall have effect immediately on the lapse of the tenth day following its notification; and the recipient of the order shall thereupon fully, immediately and properly implement the same or allow the full, immediate and proper implementation thereof, and shall refrain from causing or con tinu i ng to cau s e an y i m pedi ment or hin d ran c e to t h e said implementation:
Provided that the implementation of an order made under subarticle (2) shall not be impeded, restricted or delayed by reason of any claim for charges made by the recipient of the order pursuant to subarticle (4).
(4) The recipient of an order made under subarticle (2) shall be allowed to charge for the collocation in or the use of the facilities affixe d or erected by it at rates which are based on reason able relevant costs. Charges for collocation or use of the same facilities shall be cost-oriented and shall not include charges for overheads such as marketing, personnel or maintenance costs, other than those directly incurred on the facilities used.
(5) The recipient of an order made under subarticle (2) shall submit its charges to the provided collocating or making use of the facilities affixed or erected by the said recipient within thirty days
of commencement of collocation or use as aforesaid. If the provider collocating or making such use disagrees with such charges it may, within thirty days of receipt of the same, refer the matter to the Regulator.
(6) Upon receipt of any reference as aforesaid, the Regulator sh all n o tify th e part ies concer ned th at th e matt er i s under investigation, allowing them a reasonable time within which to p r od uce relevant info rma tio n and evid en ce an d make representations. The Regulator shall, after examining the facts and representations placed before him and such other information as he may require, determine the charges due to the recipient of an order made under subarticle (2):
Provided that where the reference is made by a provider of an el ectronic comm unicat ions servi ce, in relatio n to any wor ks concerning such service, the Regulator shall apply the provisions of the Electronic Commun i cations (Regulation) Act on dispute resolution.
(7) The Regulator may, upon application by the recipient of an order mad e under subart icle (2 ) order the perso n allo wed to collocate or to make use of the facilities affixed or erected by the said recipient to provide security for the payment of charges due hereunder in respect of such collocation or use in an amount and in such form as may be determined by the Regulator.
(8) At any time when the members of the Authority for Transport in Malta are not appointed, the powers of the Authority under this article shall be exercisable by the Minister responsible for transport.
(9) For the purpose of inspecting, testing or maintaining in good state of repair any wo rk carr i e d ou t under this article, the provisions of article 471 of the Civil Code shall apply.
(10) The Authority for Transport in Malta in the exercise of its functions under this article in so far as these relate to any works related to electronic communications, shall:
(a) act on the basis of simple, efficient, transparent and publicly available procedures, applied without discrimination and without delay, and shall in any case make a decision within six months from the application date;
(b) follow the principles of transparency and non- discrimination in attaching conditions to any rights it may grant to a provider of an electronic communications service; and
(c) give reasons for its decisions:
Provided that the Authority for Transport in Malta shall, in relation to any fees it may be authorised to impose by or under this Act relating to such works, ensure that such fees are objectively justi f ied, transparent, no n-discriminatory and proportio nate in relation to their intended purpose:
Provided further that the Authority for Transport in Malta

Cap. 399.

Cap. 16.

Cap. 418.

shall, in relation to amendments that it may consider making to any rights, conditions and procedures relating to such works, ensure that any such amendment is only made in objectively justified cases and in a proportionate manner. Before making any such amendment the Auth ority for Tr anspo r t in Mal t a shall give noti c e in such manner as it co nsiders appropriate of it s int e ntion, inv iting in terested parti e s includi ng us ers and consum ers, to m a ke representations on the proposed amendments within such period of not less than thir ty days as may be speci fied in the not ice. The Authority for Transport in Malta may in circumstances which it considers to be exceptional, shorten such period.
(11) A person providing electronic communications networks and, or services or associated facilities who is aggrieved by any decision taken under this article by the Authority for Transport in Malt a or by th e Regu lato r con c ern i ng any wo rks relatin g to electro nic comm unicatio ns, m a y, after havin g exhausted the remedy provided for in subarticles (5) and (6) where applicable, appeal to the Communications Appeals Board established under the Malta Communications Authority Act:
Provided that such a person in appealing shall also explain his juridical interest in impugning the decision appealed from:
Provided further that the Malta Communications Authority shall also be notified with any appeal filed under this subarticle and shall be entitled to make submissions thereon.
Cap. 418. The provisions of Part VIII of the Malta Communications Au tho r it y Act , re la ti ng to t h e hea r in g o f ap pe al s b y t h e C o mmunications Appeals Board fr om decisions of the Malta Communications Authority shall apply mutatis mutandis to appeals filed under this article.

Compensation. Amended by: L.N.148 of 1975; XXIII. 2000.30.

Cases in which no compensation is due.

5. Where the works contemplated in the last preceding article cause damage to a tenement or cause annoyance to the owner of the tenement, the owner may, within three months from the completion of the said works, apply to the Court of Appeal praying for the determination of the compensation which may be due in respect of such damage or annoyance:

Provided that -
(a) no damage or annoyance entitling the owner to compensation shall be considered to arise from the fact that a cable, wire or other essential accessory has been placed, erected or affixed either below, above or by the side of any tenement, if such cable, wire or other accessory does not cause any inconvenience, or if such cable, wire or other accessory is run over a tenement at a height of not less than four and a half metres from the surface thereof, or, in the case of a building, at a height of not less than three metres from the level of the roof thereof;
(b) no claim for compensation shall be deemed to arise from the mere fact that a cable or wire passes in close proximity to or is supported by a bracket affixed to the
wall of a building, or that a pole or stay is fixed to the upper part of such wall for the purpose of attaching thereto a cable or wire at the requisite height, if, in either case, the said cable or wire does not cause a noise which may be distinctly heard inside the building when the doors and windows are open, or other inconvenience;
(c) no claim for compensation shall be deemed to arise from the mere fact that one or more poles or other supports are erected in any tenement, or in any field or site, so long as the distance between the poles or supports is not less than thirty-six and a half metres, and no pole or support occupies more than one hundred and sixty square centimetres of ground.

6. (1) The owner of any tenement affected by an order made under article 4 may, within the period of eight days from the date of the said order, apply to the regulator concerned requesting that the route of the proposed cable or wire be diverted in such a way as to obviate the necessity of cutting, placing, erecting or affixing any trench, cable, wire, pole, stay, bracket or other essential accessory, in, over or upon the said tenement.

(2) Such a request shall be granted provided -
(a) the route, if diverted, will function with equal efficiency as the proposed route, and will not be more liable to damage from any cause whatsoever; and
(b) the diversion of the proposed route will not interfere with other property or give rise to a claim for compensation under article 5; and
(c) the diversion of the proposed route will not entail a greater expense to the regulator concerned either for its original construction or its subsequent repair and maintenance.
(3) Any person who deems himself aggrieved by the decision of the regulator may, by an application, appeal therefrom to the Court of Appeal.

Where owner of tenement may ask for diversion of proposed route. Amended by:

L.N. 148 of 1975; XXIII. 2000.30.

7. The owner of a tenement in, over or upon which there is any cable, wire, pole, stay, bracket or other essential accessory, upon a declaration on oath before a magistrate that he intends to make alterations in the tenement and that such alterations cannot be effected unless the cable, wire, pole, stay, bracket or other essential accessory be temporarily or permanently removed or unless the position of such cable, wire, pole, stay, bracket or other essential accessory be changed, may require that such work be temporarily o r permanentl y removed or that the po si tion of such wo rk be changed, notwithstanding that the owner had given his consent for the execution of the work or had received compensation in terms of this Act:

Provided that the owner shall in all cases give three months notice of his intention to effect the alterations aforesaid:

Where owner of tenement may ask for removal of cable, etc. Amended by: XXIII.2000.30.

Provided also that the owner who makes the request shall refund any compensation which he may have received.

Works carried out before commencement of Act.

Amended by: XXIII.2000.30.

Penalty for obstruction. Amended by: XIII. 1983.5; XXIII. 2000.30;

L.N. 408 of 2007.

Penalty for causing wilful damage to works.

Amended by: XIII. 1983.5;

XXIII.2000.30; L.N. 408 of 2007.

8. Every work carried out before the commencement of this Act in, over or upon any tenement in connection with the fixed electrical power and telegraphic communication systems without any protest on th e p a rt o f the owner of th e tenement shall b e deemed to have been so carried out with the consent of the owner an d sh all no t e n ti tle th e ow ner o f the ten e men t t o any compensation, notwithstanding that the provisions of this Act shall not have been observed.

9. Whosoever resists or obstructs any person authorized to enter any tenement in connection with the execution of his duties under this Act, shall be liable, on conviction, to a fine (multa) not exceeding two hundred and thirty-two euro and ninety-four cents (232.94) or to imprisonment for a term not exceeding one month or to both such fine and imprisonment.
10. Any person who wilfully interferes with or causes damage of any w o rks co nnected w ith t h e fixed electrical power and telegraphic communication systems in Malta, shall be liable to a fine (multa) not exceeding two hundred and thirty-two euro and ni net y -four cen t s (232.9 4 ) or to imp risonment for a term not exceeding three months or to both such fine and imprisonment:
Provided that nothing in this Act shall prevent a prosecution under any other law, but so that a person shall not be punished twice for the same offence.

Power of Minister to make regulations. Amended by:

L.N. 4 of 1963; XI. 1977.2; XXIII. 2000.30; VII. 2004.44; XV. 2009.49.

Penalty for contravention of regulations. Amended by: XIII. 1983.5; XXIII.2000.30;

L.N. 408 of 2007.

Power to charge fees.

Added by: XXIII. 2000.30.

Amended by: XV. 2009.49.

11. The Minister responsible for transport on the advice of the Authority for Transport in Malta may make and, when made, vary or revoke regulations providing for any matter relating to rights of way including the fees that may be charged for such rights and for the manner in which any trench, pit, pole, stay, bracket or other essential accessory in connection with the fixed electrical power and tele graphic communication sy stems in M a lta shall be c u t, placed, erected or fixed, and generally for the proper working of such systems and for carrying this Act into effect.

12. Any person who acts in contravention of, or fails to comply with any regulation made under this Act shall be liable to a fine (multa) not exceeding forty-six euro and fifty-nine cents (46.59).

13. Where cables or wires are placed or other works are carried out below, above or by the side of any road, it shall be lawful for the Authority for Transport in Malta to charge such fees for any land which under any law is vested in the Authority for Transport in Malta and which is affected or occupied by such works, as may be det e rmi n ed from time t o time b y r e g u lati ons mad e by th e Minister in accordance with article 11.