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High Speed Rail (London - West Midlands) BillPage 180

(a) the western part of the site, or

(b) the use of any railway or siding on any other part of the site for the
purposes of access to, or stabling in connection with, a depot on the
western part of the site.

(2) 5For the purposes of this paragraph—

Section 41(4)

SCHEDULE 28 Arbitration between railway operators

15Directions as to results to be achieved

1 (1) This paragraph applies where a difference is referred under section 41(3) to
arbitration.

(2) The parties must notify the Secretary of State of the referral without delay
after the commencement of the arbitral proceedings.

(3) 20The Secretary of State may, on request or otherwise, direct the arbitrator as
to results that are to be achieved by the agreement for which terms are to be
determined by the arbitration.

(4) A direction under this paragraph may be made even though the making of
the direction affects the outcome of proceedings to which the Secretary of
25State, or a body in which the Secretary of State has an interest, is a party.

(5) A request for a direction under this paragraph may be made by the arbitrator
(as well as by a party).

(6) For the purpose of determining whether or not the arbitrator has to comply
with a direction under this paragraph, the rule is that the arbitrator must
30comply with the direction in determining terms of the agreement if the
direction—

(a) is relevant to the determination of those terms, and

(b) is given to the arbitrator before the award determining those terms is
made.

(7) 35For the purpose of determining what the arbitrator has to do to comply with
a direction under this paragraph, the rule is that the arbitrator must carry out
the function of determining terms of the agreement so as to secure, so far as
is reasonably practicable, that the results concerned are achieved by the
agreement.

40Directions as to consolidation and grouping of proceedings

2 (1) The Secretary of State may, on request or otherwise, direct—

High Speed Rail (London - West Midlands) BillPage 181

(a) that a group of proceedings is to be consolidated, or

(b) that concurrent hearings are to be held in a group of proceedings.

(2) In sub-paragraph (1) “group of proceedings” means a group consisting of—

(a) section 41(3) proceedings, and

(b) 5any one or more of the following—

(i) other section 41(3) proceedings,

(ii) arbitral proceedings related to the proceedings mentioned in
paragraph (a), and

(iii) arbitral proceedings related to section 41(3) proceedings that
10are to be consolidated with the proceedings mentioned in
paragraph (a).

(3) A request for a direction under this paragraph may be made by the arbitrator
or any of the arbitrators (as well as by a party).

(4) A direction under this paragraph must specify the terms on which the
15proceedings are to be consolidated or on which concurrent hearings are to
be held.

(5) Where a direction under this paragraph provides for the consolidation of
proceedings that do not all have the same arbitrator, the terms that may be
specified in the direction include (in particular)—

(a) 20terms specifying the person who is to be the arbitrator in the
consolidated proceedings;

(b) terms under which that person is to be determined.

(6) For the purposes of this section—

(a) “section 41(3) proceedings” means proceedings on arbitration of a
25difference referred under section 41(3), and

(b) arbitral proceedings are “related” to section 41(3) proceedings if—

(i) the arbitral proceedings are not section 41(3) proceedings,

(ii) at least one of the parties to the arbitral proceedings is also a
party to the section 41(3) proceedings, and

(iii) 30the Secretary of State considers that the subject-matter of the
arbitral proceedings is connected with the subject-matter of
the section 41(3) proceedings.

Section 44

SCHEDULE 29 Transfer schemes: further provision

35Property, rights and liabilities

1 (1) The property, rights and liabilities that may be the subject of a transfer
scheme include in particular—

(a) rights and liabilities relating to contracts of employment;

(b) property, rights and liabilities that would not otherwise be capable
40of being transferred or assigned by the transferor;

(c) property acquired after the making of the scheme and rights and
liabilities arising after the making of the scheme;

(d) rights and liabilities under an enactment.

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(2) A transfer scheme may—

(a) create rights or interests in relation to property for whose transfer the
scheme provides or property retained by the transferor;

(b) create rights and liabilities as between the transferor and a transferee
5or as between different transferees.

(3) A transfer scheme may contain provision about enforcement, by or against
any one or more of the transferor and the transferee or transferees, of a right
or liability for whose transfer or creation the scheme provides.

(4) A transfer scheme may define the property, rights and liabilities to be
10transferred or property to be retained by the transferor—

(a) by specifying it or them;

(b) by describing it or them.

(5) A description of property, rights or liabilities may be framed in particular—

(a) by reference to the transferor’s undertaking;

(b) 15by reference to a specified part of that undertaking.

2 The power under section 44 to make a scheme for the transfer of any
property from one person (A) to another (B) may be exercised instead so as
to make a scheme for the creation by A in favour of B of an interest in or right
in relation to the property.

20Transfer of employees and continuity of employment

3 (1) This paragraph applies where rights, powers, duties and liabilities relating
to a person’s contract of employment are transferred in accordance with a
transfer scheme.

(2) The transfer does not break the continuity of the person’s employment, and
25accordingly—

(a) the person is not to be regarded for the purposes of Part 11 of the
Employment Rights Act 1996 (redundancy) as having been
dismissed by virtue of the transfer, and

(b) the person’s period of employment with the transferor counts, for
30the purposes of that Act, as a period of employment with the
transferee.

4 (1) This paragraph applies where—

(a) a transfer scheme provides for the transfer of rights, powers, duties
and liabilities relating to a person’s contract of employment, but

(b) 35before the transfer takes effect, the person informs the transferor or
transferee that the person objects to the transfer.

(2) Those rights, powers, duties and liabilities are not transferred to the
transferee.

(3) The person’s contract of employment is terminated immediately before the
40day on which the transfer would have occurred.

(4) The person is not, for any purpose, to be regarded as having been dismissed.

(5) Nothing in this paragraph affects the person’s right to terminate the contract
of employment if, apart from the change of employer, a substantial change
is made to the person’s detriment in his or her working conditions.

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5 (1) If a transfer scheme provides for the transfer of rights, powers, duties and
liabilities relating to a person’s contract of employment, it may include
provision with respect to the person’s eligibility to become a member of a
pension scheme by virtue of employment with the transferee.

(2) 5The transfer scheme may include provision with respect to rights of, or
rights or liabilities in respect of, the person under—

(a) a pension scheme of which the person may become a member by
virtue of employment with the transferee, or

(b) a pension scheme of which the person is a member by virtue of
10employment immediately before the transfer.

6 Where a person holds employment in the civil service of the State on terms
which do not constitute a contract of employment—

(a) the person is to be treated for the purposes of this Schedule as
employed under a contract of employment,

(b) 15the terms of the employment in the civil service of the State are to be
treated for those purposes as the terms of that contract, and

(c) the reference in paragraph 4 to dismissal is to be read as a reference
to termination of the employment in the civil service of the State.

Provision for contraventions etc to be treated as not occurring

7 (1) 20A transfer scheme may provide for a transfer to take effect as if there were
no contravention or liability, or interference with any interest or right, that
there would otherwise be as a result of a provision which has effect (whether
under an enactment or agreement or otherwise) in relation to—

(a) the terms on which the transferor is entitled to the property or right
25for whose transfer the scheme provides, or

(b) the terms on which the transferor is subject to the liability for whose
transfer the scheme provides.

(2) A transfer scheme may provide for the creation of an interest in or right in
relation to property to take effect as if there were no contravention or
30liability, or interference with any interest or right, that there would
otherwise be as a result of a provision which has effect (whether under an
enactment or agreement or otherwise) in relation to—

(a) the terms on which the transferor is entitled to the property, or

(b) the terms on which a subsidiary of the transferor is entitled or subject
35to anything immediately before the creation of the interest or right
takes effect.

8 (1) This paragraph applies where a transfer scheme provides for the transfer of
shares in a subsidiary of the transferor.

(2) The scheme may provide for the transfer to take effect as if there were no
40contravention or liability, or interference with any right or interest, that
there would otherwise be as a result of a provision which has effect (whether
under an enactment or agreement or otherwise) in relation to the terms on
which the subsidiary is entitled or subject to anything immediately before
the transfer takes effect.

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Power to modify interests, rights and liabilities of third parties

9 (1) A transfer scheme may modify interests, rights or liabilities of third parties
in relation to anything to which the scheme relates.

(2) In sub-paragraph (1), “third party”, in relation to a scheme, means a person
5other than the transferor or a transferee.

10 (1) Where a person would (apart from this paragraph) have a qualifying
entitlement in consequence of—

(a) property, rights or liabilities having been, or being likely to be,
transferred under a transfer scheme,

(b) 10interests, rights or liabilities having been, or being likely to be,
created under a transfer scheme, or

(c) anything else having been done, or being likely to be done, by or
under a transfer scheme,

that entitlement is enforceable, in consequence of the circumstances
15mentioned in paragraph (a), (b) or (c), only to the extent specified in the
scheme.

(2) In this paragraph, “qualifying entitlement”, in relation to a transfer scheme,
means an entitlement—

(a) to terminate, modify, acquire or claim an interest or right to which
20the transferor, or a subsidiary of the transferor, is entitled or subject,
or

(b) to treat an interest or right to which the transferor, or a subsidiary of
the transferor, is entitled or subject as modified or terminated.

Obligations to enter into agreements or execute instruments

11 (1) 25A transfer scheme may contain provision for imposing, on the transferor or
a transferee, obligations—

(a) to enter into agreements with persons specified in the scheme, or

(b) to execute instruments in favour of persons specified in the scheme.

(2) Any person may be specified by virtue of sub-paragraph (1)(a) or (b)
30(including the transferor or a transferee).

(3) Where a scheme contains provision for imposing an obligation of the kind
mentioned in sub-paragraph (1)

(a) the scheme must specify or describe the agreement or instrument to
which the obligation relates, and

(b) 35the obligation may be enforced in any authorised way by the
person—

(i) with whom the agreement is to be entered into, or

(ii) in favour of whom the instrument is to be executed.

(4) In sub-paragraph (3)(b), “enforced in any authorised way” means
40enforced—

(a) in civil proceedings for an injunction,

(b) in civil proceedings for any other appropriate remedy or relief, or

(c) in any other way authorised by the scheme.

(5) The scheme may provide that sub-paragraph (4)(a) or (b)

(a) 45does not apply in relation to the obligation, or

High Speed Rail (London - West Midlands) BillPage 185

(b) applies in relation to the obligation subject to restrictions imposed by
the scheme.

Supplementary provisions of schemes

12 (1) A transfer scheme may include consequential, supplementary, incidental,
5and transitional provision.

(2) That includes, in particular, provision—

(a) saving the effect of things done by or in relation to the transferor,

(b) for a transferee to be treated as the same person in law as the
transferor,

(c) 10for things done by or in relation to the transferor to be treated as done
by or in relation to a transferee,

(d) for things (including legal proceedings) being done by or in relation
to the transferor to be continued by or in relation to a transferee, and

(e) for references in a document (other than in an enactment) to the
15transferor, or to an employee or office-holder of the transferor, to
have effect with modifications specified in the scheme.

Effect of scheme

13 (1) At the time appointed for the purpose by a transfer scheme, property, rights
and liabilities for whose transfer the scheme provides are transferred in
20accordance with the scheme.

(2) A scheme may appoint different times for the transfer of different things.

(3) References in this paragraph to the transfer of property, rights and liabilities
include references to the creation of interests, rights or liabilities under
paragraph 1 or 2 (and “transferred”, in relation to property, rights or
25liabilities, is to be read accordingly).

Modification of scheme by agreement

14 (1) Where the transferor, and the transferee or transferees, under a transfer
scheme so agree, the scheme is to be treated for all purposes as having been
made with such modifications as may be agreed.

(2) 30Sub-paragraph (1) does not apply in the case of an agreement relating to
rights and liabilities under a contract of employment unless the employee is
a party to the agreement.

(3) Sub-paragraph (1) does not apply in the case of an agreement that adversely
affects the property or rights of a person other than the transferor or a
35transferee unless that person is a party to the agreement.

(4) An agreement under sub-paragraph (1) may make—

(a) any provision that could have been contained in the scheme, and

(b) consequential, supplementary, incidental or transitional provision in
connection with giving effect to any such provision.

(5) 40Provision under sub-paragraph (4) may be made so as to have effect from
when the scheme was made (or any later time).

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Provision of information to person making scheme

15 (1) Where the Secretary of State proposes to make a transfer scheme, the
Secretary of State may direct—

(a) a proposed transferor,

(b) 5a proposed transferee, or

(c) High Speed Two (HS2) Limited,

to provide the Secretary of State with such information as the Secretary of
State considers necessary to enable the scheme to be made.

(2) A direction under sub-paragraph (1) must specify the period (of not less
10than 28 days beginning with the day when the direction is given) within
which the information is to be provided.

(3) If a person fails to comply with the direction, the Secretary of State may give
the person a notice requiring the person—

(a) to produce to the Secretary of State, at a time and place specified in
15the notice, any documents which are specified or described in the
notice and are in the person’s custody or control, or

(b) to provide to the Secretary of State, at a time and place and in the
form and manner specified in the notice, such information as may be
specified or described in the notice.

(4) 20No person may be required under sub-paragraph (3)

(a) to produce a document which the person could not be compelled to
produce in civil proceedings in the High Court, or

(b) to provide information which the person could not be compelled to
give in evidence in such proceedings.

(5) 25If a person fails to comply with a notice under sub-paragraph (3), the High
Court may, on the application of the Secretary of State, make such order as
the court thinks fit for requiring the failure to be made good.

(6) Any order under sub-paragraph (5) may include provision requiring all the
costs and expenses of and incidental to the application to be borne by one or
30more of—

(a) the person in default, and

(b) any officers of a body corporate or other association who are
responsible for its default.

(7) In this paragraph, a reference to producing a document includes a reference
35to producing a legible and intelligible copy of information recorded
otherwise than in legible form.

Agreements relating to schemes

16 The Secretary of State may by agreement fetter the exercise of his or her
discretion relating to his or her powers under this Schedule.

40Power to make provision about tax consequences of schemes

17 (1) The Treasury may by regulations make provision for varying the way in which a
relevant tax has effect from time to time in relation to

(a) any property, rights or liabilities transferred in accordance with a transfer
scheme, or

High Speed Rail (London - West Midlands) BillPage 187

(b) anything done for the purposes of, or in relation to, or in consequence of, the
transfer of any property, rights or liabilities in accordance with a transfer
scheme.

(2) The provision that may be made under sub-paragraph (1)(a) includes, in particular,
5provision for

(a) a tax provision not to apply, or to apply with modifications, in relation to
any property, rights or liabilities transferred;

(b) any property, rights or liabilities transferred to be treated in a specified way
for the purposes of a tax provision;

(c) 10the Secretary of State to be required or permitted, with the consent of the
Treasury, to determine, or to specify the method for determining, anything
which needs to be determined for the purposes of any tax provision so far as
relating to any property, rights or liabilities transferred.

(3) The provision that may be made under sub-paragraph (1)(b) includes, in particular,
15provision for

(a) a tax provision not to apply, or to apply with modifications, in relation to
anything done for the purposes of, or in relation to, or in consequence of, the
transfer;

(b) anything done for the purposes of, or in relation to, or in consequence of, the
20transfer to have or not to have a specified consequence or to be treated in a
specified way;

(c) the Secretary of State to be required or permitted, with the consent of the
Treasury, to determine, or to specify the method for determining, anything
which needs to be determined for the purposes of any tax provision so far as
25relating to anything done for the purposes of, or in relation to, or in
consequence of, the transfer.

(4) Regulations under this paragraph may make—

(a) supplementary, incidental or consequential provision;

(b) different provision for different purposes.

(5) 30In this paragraph—

(a) “relevant tax” means income tax, corporation tax, capital gains tax,
stamp duty, stamp duty land tax or stamp duty reserve tax;

(b) “tax provision” means a provision of an enactment about a relevant
tax.

(6) 35References in this paragraph to the transfer of property, rights or liabilities,
in accordance with a transfer scheme include references to—

(a) the creation of interests, rights or liabilities under paragraph 1, 2 or
11, and

(b) the modification of interests, rights or liabilities under paragraph 9,

40(and “transferred”, in relation to property, rights or liabilities, is to be read
accordingly).

(7) Regulations under this paragraph must be made by statutory instrument;
and a statutory instrument containing such regulations is subject to
annulment in pursuance of a resolution of the House of Commons.

45Interpretation

18 (1) In this Schedule—

(2) References in this Schedule to a right or entitlement include references to an
entitlement to exercise a right (and references to a right’s arising include
20references to its becoming exercisable).

Section 45

SCHEDULE 30 Extension of planning permission for statutory undertakers

Case where planning permission extended

1 (1) Article 3(10) of the Town and Country Planning (General Permitted
25Development) Order 1995 (S.I. 1995/418S.I. 1995/418) (which excepts development
requiring an environmental assessment from the general planning
permission granted by that Order) does not apply to development which—

(a) falls within a class of development described in Part 15, 16, 17, 24 or
25 of Schedule 2 to that Order as permitted development, and

(b) 30is covered by an environmental assessment in connection with the
High Speed Rail (London - West Midlands) Bill.

(2) References in sub-paragraph (1) to particular provisions of the Town and
Country Planning (General Permitted Development) Order 1995 include
references to the corresponding provisions of any order replacing that
35Order.

Condition of extended planning permission

2 (1) Planning permission granted by virtue of paragraph 1 is subject to the
condition that development is carried out in accordance with such
requirements as the Secretary of State may by notice to the developer specify
40for the purpose of—

(a) avoiding a breach of an undertaking given by the Secretary of State
to the Select Committee of either House of Parliament to which the
High Speed Rail (London - West Midlands) Bill was committed, or

High Speed Rail (London - West Midlands) BillPage 189

(b) securing that the environmental effects of carrying out the
development are not materially different from those envisaged by
the statement by virtue of which paragraph 1(b) applies.

(2) The power conferred under sub-paragraph (1) is exercisable after, as well as
5before, development is commenced.

(3) The power conferred under sub-paragraph (1) includes power, exercisable
in the same manner, to vary or revoke a notice under that sub-paragraph.

(4) The condition imposed by sub-paragraph (1) is in addition to any condition
to which the planning permission may be subject apart from this paragraph.

10Controls on proposed development

3 (1) Where—

(a) it appears to the Secretary of State that a person is proposing to carry
out development of a kind mentioned in paragraph 1(1)(a), and

(b) the Secretary of State is of the opinion that the proposed
15development is not covered by an environmental assessment in
connection with the High Speed Rail (London - West Midlands) Bill,

the Secretary of State may give notice of that opinion to the proposed
developer.

(2) The power conferred under sub-paragraph (1) includes power, exercisable
20in the same manner, to withdraw a notice under that sub-paragraph.

(3) Where a notice under sub-paragraph (1) has been given (and not
withdrawn), paragraph 1 is to be treated as not applying to the carrying out
of the development by the proposed developer.

4 (1) Where it appears to the Secretary of State that—

(a) 25a person is proposing to carry out development of a kind mentioned
in paragraph 1(1)(a),

(b) the development is covered by an environmental assessment in
connection with the High Speed Rail (London - West Midlands) Bill,
and

(c) 30it is necessary or desirable to do so for the purpose of avoiding a
breach of an undertaking given by the Secretary of State to the Select
Committee of either House of Parliament to which that Bill was
committed,

the Secretary of State may by notice to the proposed developer disapply
35paragraph 1(1) in relation to the carrying out of the development by that
person.

(2) The power conferred under sub-paragraph (2) includes power, exercisable
in the same manner, to revoke a notice under that sub-paragraph.

Notices

5 (1) 40A notice under this Schedule must—

(a) specify the person to whom it is given,

(b) specify the development to which it relates,

(c) explain the reasons for it, and

(d) in the case of a notice under paragraph 3, explain its effect.

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