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Deregulation Bill (HC Bill 162)

Deregulation BillPage 90

(5) Sub-paragraph (2)(b) and (c) and, where applicable, sub-
paragraph (4) must be complied with not less than 42 days before
the expiration of the time specified in the notice.

(6) A notice required to be served by sub-paragraph (2)(b) on the
5owner or occupier of any land, or on a local authority, must be
accompanied by a copy of so much of the order as relates to that
land or, as the case may be, the area of that authority; and a notice
required to be served by that sub-paragraph on such other persons
as may be prescribed or as the authority may consider appropriate
10must be accompanied by a copy of the order.

(7) A notice required to be displayed by sub-paragraph (2)(c) at the
ends of so much of any way as is affected by the order must be
accompanied by a plan showing the general effect of the order so
far as it relates to that way.

(8) 15At any time after the publication of a notice under this paragraph,
and before the expiration of the period specified in the notice for
the making of representations and objections, any person may
require the authority to inform the person what documents (if
any) were taken into account in preparing the order; and

(a) 20as respects any such documents in the possession of the
authority, to permit the person to inspect them and take
copies; and

(b) as respects any such documents not in their possession, to
give the person any information the authority have as to
25where the documents can be inspected;

and the authority must comply with a requirement under this sub-
paragraph within 14 days of the making of the requirement.

(9) Nothing in sub-paragraph (1)(c) or (8) is to be construed as
limiting the grounds which may be relied on or the documentary
30or other evidence which may be adduced at any local inquiry or
hearing held under paragraph 13(1)(a) or (c) or 14(3)(a) or (c) or
included in representations made under paragraph 13(1)(b) or
14(3)(b).

Irrelevant representations or objections

6 (1) 35If representations or objections have been duly made about an
order to an authority (and not withdrawn) but the authority
consider that none of them are relevant, the authority may
proceed under this Schedule as if no representations or objections
had been duly made (and the following provisions of this
40Schedule apply accordingly).

(2) For the purposes of this paragraph, a representation or objection is
relevant if, were the order to be submitted to the Secretary of State
under paragraph 11, it would be relevant in determining whether
or not to confirm the order (either with or without modifications).

(3) 45In deciding whether to exercise their power under sub-paragraph
(1), an authority must have regard to any guidance given by the
Secretary of State.

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(4) Where the authority decide to exercise that power, the authority
must inform the applicant, and any person who made a
representation or objection (and has not withdrawn it), of their
decision and the reasons for it.

(5) 5Nothing in this paragraph applies to a modification consent order.

Severance of orders - representations etc relating to only some modifications

7 (1) Where at any time representations or objections duly made and
not withdrawn relate to some but not all of the modifications
made by an order, the authority may, by notice given to the
10Secretary of State, elect that, for the purposes of the following
provisions of this Schedule, the order is to have effect as two
separate orders—

(a) the one comprising the modifications to which the
representations or objections relate; and

(b) 15the other comprising the remaining modifications.

(2) Any reference in sub-paragraph (1) to an order includes a
reference to any part of an order which, by virtue of one or more
previous elections under that sub-paragraph, has effect as a
separate order.

(3) 20Nothing in this paragraph applies to a modification consent order.

Severance of orders - only some representations etc relevant

8 (1) If representations or objections have been duly made about an
order to an authority (and not withdrawn) but the authority
consider that not all of the representations or objections are
25relevant, the authority may elect that the order is to have effect as
two separate orders—

(a) the one comprising the modifications to which the relevant
representations or objections relate;

(b) the other, comprising the remaining modifications, which
30is to be treated as if no representations or objections had
been duly made;

and the following provisions of this Schedule apply accordingly.

(2) For the purposes of this paragraph, a representation or objection is
relevant if, were the order to be submitted to the Secretary of State
35under paragraph 11, it would be relevant in determining whether
or not to confirm the order (either with or without modifications).

(3) In deciding whether to exercise their power under sub-paragraph
(1), an authority must have regard to any guidance given by the
Secretary of State.

(4) 40Where the authority decide to exercise such a power, the authority
must inform the applicant, and any person who made a
representation or objection (and has not withdrawn it), of their
decision and the reasons for it.

(5) Nothing in this paragraph applies to a modification consent order.

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Confirmation - modification consent orders

9 (1) The authority may (whether or not any representations or
objections are made) confirm a modification consent order—

(a) without modifications; or

(b) 5with modifications, if every owner of the land to which the
order relates so consents.

(2) Nothing in paragraphs 10 to 16 applies to a modification consent
order.

Confirmation - unopposed orders (other than modification consent orders)

10 (1) 10If no representations or objections are duly made, or if any so
made are withdrawn, the authority may—

(a) confirm the order without modification; or

(b) if they require any modification to be made, submit the
order to the Secretary of State for confirmation by him or
15her.

(2) Where an order is submitted to the Secretary of State under sub-
paragraph (1), the Secretary of State may confirm the order with or
without modifications.

Confirmation - opposed orders (other than modification consent orders)

11 20If any representation or objection duly made to an order is not
withdrawn the authority must submit the order to the Secretary of
State for confirmation by him or her.

12 (1) Where an order is submitted by an authority to the Secretary of
State and the representations or objections relate to some but not
25all of the modifications made by the order, the Secretary of State
may, by notice given to the authority, elect that the order is to have
effect as two separate orders—

(a) the one comprising the modifications to which the
representations or objections relate (“the opposed order”);
30and

(b) the other comprising the remaining modifications.

(2) Where notice is given under sub-paragraph (1), paragraph 10 and
the following provisions of this Schedule apply as if only the
opposed order had been submitted to the Secretary of State for
35confirmation.

(3) Any reference in sub-paragraph (1) to an order includes a
reference to any part of an order which, by virtue of one or more
previous elections under that sub-paragraph, has effect as a
separate order.

13 (1) 40Where an order is submitted to the Secretary of State under
paragraph 11, the Secretary of State must, subject to sub-
paragraph (2), either—

(a) cause a local inquiry to be held;

(b) afford any person by whom a representation or objection
45has been duly made and not withdrawn an opportunity to

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make representations (or further representations) to a
person appointed by the Secretary of State for the purpose;
or

(c) afford any person by whom a representation or objection
5has been duly made and not withdrawn an opportunity to
be heard by a person appointed by the Secretary of State
for the purpose.

(2) The Secretary of State may, but need not, act as mentioned in sub-
paragraph (1) if, in the Secretary of State’s opinion, no
10representation or objection which has been duly made and not
withdrawn relates to an issue which would be relevant in
determining whether or not to confirm the order, either with or
without modifications.

(3) On considering any representations or objections duly made and
15the report of any person appointed to hold an inquiry, or
appointed as mentioned in sub-paragraph (1)(b) or (c), the
Secretary of State may confirm the order with or without
modifications.

Restriction on power to confirm orders with modifications

14 (1) 20The Secretary of State must not confirm an order with
modifications so as—

(a) to affect land not affected by the order;

(b) not to show any way shown in the order or to show any
way not so shown; or

(c) 25to show as a highway of one description a way which is
shown in the order as a highway of another description,

except after complying with the requirements of this paragraph.

(2) The Secretary of State must give such notice as appears to him or
her to be requisite of his or her proposal so to modify the order,
30specifying the time (which must not be less than 28 days from the
date of the first publication of the notice) within which, and the
manner in which, representations or objections with respect to the
proposal, which must include particulars of the grounds relied on,
may be made.

(3) 35If any representation or objection duly made under sub-paragraph
(1) is not withdrawn, the Secretary of State must either—

(a) cause a local inquiry to be held;

(b) afford any person by whom a representation or objection
has been duly made and not withdrawn, an opportunity to
40make representations (or further representations) to a
person appointed by the Secretary of State for that
purpose; or

(c) afford any person by whom a representation or objection
has been duly made and not withdrawn, an opportunity to
45be heard by a person appointed by the Secretary of State
for that purpose.

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(4) The Secretary of State must consider the report of any person
appointed to hold an inquiry or appointed as mentioned in sub-
paragraph (3)(b) or (c).

(5) The Secretary of State may, but need not, act as mentioned in sub-
5paragraph (3) if, in his or her opinion, no representation or
objection which has been duly made and not withdrawn relates to
an issue which would be relevant in determining whether or not
to confirm the order in accordance with his or her proposal.

(6) Sub-paragraph (2) is not be construed as limiting the grounds
10which may be relied on at any local inquiry or hearing held under
sub-paragraph (3)(a) or (c) or included in representations made
under sub-paragraph (3)(b).

Appointment of inspectors etc

15 (1) A decision of the Secretary of State under paragraph 10, 13 or 14
15must, except in such classes of case as may for the time being be
prescribed or as may be specified in directions given by the
Secretary of State, be made by a person appointed by the Secretary
of State for the purpose instead of by the Secretary of State; and a
decision made by a person so appointed is to be treated as a
20decision of the Secretary of State.

(2) The Secretary of State may, if he or she thinks fit, direct that a
decision which, by virtue of sub-paragraph (1) and apart from this
sub-paragraph, falls to be made by a person appointed by the
Secretary of State is instead to be made by the Secretary of State;
25and a direction under this sub-paragraph must state the reasons
for which it is given and must be served on the person, if any, so
appointed, the authority and any person by whom a
representation or objection has been duly made and not
withdrawn.

(3) 30Where the Secretary of State has appointed a person to make a
decision under paragraph 10, 13 or 14 the Secretary of State may,
at any time before the making of the decision, appoint another
person to make it instead of the person first appointed to make it.

(4)
Where by virtue of sub-paragraph (2) or (3) a particular decision
35falls to be made by the Secretary of State or any other person
instead of the person first appointed to make it, anything done by
or in relation to the latter is to be treated as having been done by
or in relation to the former.

(4)
Regulations under this paragraph may provide for the giving of
40publicity to any directions given by the Secretary of State under
this paragraph.

Hearings and local inquiries

16 (1) Subject to sub-paragraph (2), subsections (2) to (5) of section 250 of
the Local Government Act 1972 (giving of evidence at, and
45defraying of costs of, inquiries) are to apply in relation to any
hearing or local inquiry held under paragraph 13 or 14 as they

Deregulation BillPage 95

apply in relation to a local inquiry which a Minister causes to be
held under subsection (1) of that section.

(2) In its application to a hearing or inquiry held under paragraph 13
or 14 by a person appointed under paragraph 15, subsection (5) of
5that section has effect as if the reference to the Minister causing the
inquiry to be held were a reference to the person so appointed or
the Secretary of State.

(3) Section 322A of the Town and Country Planning Act 1990 (orders
as to costs where no hearing or inquiry takes place) applies in
10relation to a hearing or local inquiry under paragraph 13 or 14 as
it applies in relation to a hearing or local inquiry for the purposes
referred to in that section.

Part 3 Orders: general
15Notice of final decisions on orders

17 (1) As soon as practicable after a decision to confirm an order is made
or, in the case of a decision by the Secretary of State, as soon as
practicable after receiving notice of the decision, the authority
must give notice—

(a) 20describing the general effect of the order as confirmed and
stating that it has been confirmed (with or without
modification) and the date on which it took effect; and

(b) naming a place in the area in which the land to which the
order relates is situated where a copy of the order as
25confirmed may be inspected free of charge, and copies may
be obtained at a reasonable charge, at all reasonable hours.

(2) A notice under sub-paragraph (1) must be given—

(a) by publication in the manner required by paragraph
5(2)(a);

(b) 30by serving a like notice on any persons on whom notices
were required to be served under paragraph 5(2)(b) or (4);
and

(c) by causing like notices to be displayed in the like manner
as the notices required to be displayed under paragraph
355(2)(c).

(3) A notice required to be served by sub-paragraph (2)(b) on the
owner or occupier of any land, or on a local authority, must be
accompanied by a copy of so much of the order as confirmed as
relates to that land or, as the case may be, the area of that authority;
40and, in the case of an order which has been confirmed with
modifications, a notice required to be served by that sub-
paragraph on such other persons as may be prescribed or as the
authority may consider appropriate must be accompanied by a
copy of the order as confirmed.

(4) 45As soon as practicable after a decision not to confirm an order or,
in the case of a decision by the Secretary of State, as soon as
practicable after receiving notice of his or her decision, the

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authority must give notice of the decision by serving a copy of it
on any persons on whom notices were required to be served under
paragraph 5(2)(b) or (4).

Proceedings for questioning validity of orders

18 (1) 5If any person is aggrieved by an order which has taken effect and
desires to question its validity on the ground that it is not within
the powers of sections 53, 54, 54B and 54C or that any of the
requirements of Schedule 13A or this Schedule have not been
complied with in relation to it, the person may within 42 days
10from the date of publication of the notice under paragraph 17
make an application to the High Court under this paragraph.

(2) On any such application the High Court may, if satisfied that the
order is not within those powers or that the interests of the
applicant have been substantially prejudiced by a failure to
15comply with those requirements, quash the order, or any
provision of the order, either generally or in so far as it affects the
interests of the applicant.

(3) Sub-paragraph (4) applies if the application relates to an order of
an authority that has been submitted to, and confirmed by, the
20Secretary of State.

(4) The High Court may quash the decision of the Secretary of State
confirming the order or any part of it (either generally or in so far
as it affects the interests of the applicant), instead of quashing the
order or any provision of it.

(5) 25Except as provided by this paragraph, the validity of an order is
not to be questioned in any legal proceedings whatsoever.

Supplemental

19 (1) The Secretary of State may, subject to the provisions of this
Schedule, by regulations make such provision as to the procedure
30on the making, submission and confirmation of orders as appears
to him to be expedient.

(2) In the application of this Schedule to an order that is a
modification consent order, any special orders made under
section 54B(5) are to be treated as part of the order.

(3) 35In this Schedule—

  • “council offices” means offices or buildings acquired or
    provided by the authority or by a local authority;

  • “local authority” means a non-metropolitan district council, a
    parish council or the parish meeting of a parish not having
    40a separate parish council;

  • “order” means an order to which the provisions of this
    Schedule apply;

  • “prescribed” means prescribed by regulations made by the
    Secretary of State.

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(4) Regulations under this Schedule are to be made by statutory
instrument and are to be subject to annulment in pursuance of a
resolution of either House of Parliament.

Part 4 5Highways Act 1980

8 (1) Schedule 6 to the Highways Act 1980 (procedure applicable to the making
etc. of certain orders under the Act relating to footpaths, bridleways and
restricted byways) is amended as follows.

(2) In paragraph 1 (publicity for orders)—

(a) 10in sub-paragraph (3), in paragraph (a), for the words from “in at least
one local newspaper” to the end of the paragraph substitute “(within
the meaning of sub-paragraph (3ZA))”;

(b) after sub-paragraph (3) insert—

(3ZA) In sub-paragraph (3)(a), “publication”
15means—

(a) in relation to England, publication on a
website maintained by the authority
and on such other websites or through
the use of such other digital
20communications media as the
authority may consider appropriate;

(b) in relation to Wales, publication in at
least one local newspaper circulating
in the area in which the land to which
25the order relates is situated.

(3) In paragraph 2 (opposed and unopposed orders), after sub-paragraph (2)
insert—

(2ZA) If representations or objections have been duly made to an
authority in England other than the Secretary of State (and not
30withdrawn), but the authority consider that none of the
representations or objections are relevant, the authority may
proceed under this Schedule as if no representations or objections
had been duly made (and the provisions of this Schedule apply
accordingly).

(2ZB) 35If representations or objections have been duly made to such an
authority (and not withdrawn), but the authority consider that at
least one of the representations or objections is not relevant, the
authority may elect that the order shall have effect as two separate
orders—

(a) 40the one comprising the modifications to which the relevant
representations or objections relate; and

(b) the other, comprising the remaining modifications, which
is to be treated as if no representations or objections had
been duly made;

45and the provisions of this Schedule apply accordingly.

(2ZC) For the purposes of this paragraph, a representation or objection is
relevant if, were the order to be submitted to the Secretary of State,

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it would be relevant in determining whether or not to confirm the
order (either with or without modifications).

(2ZD) In deciding whether to exercise their power under subsection
(2ZA) or (2ZB), an authority shall have regard to any guidance
5given by the Secretary of State.

(2ZE) Where the authority decide to exercise such a power, the authority
shall inform the applicant, and any person who made a
representation or objection (and has not withdrawn it), of their
decision and the reasons for it.

(4) 10In that paragraph, after sub-paragraph (3) insert—

(4) The Secretary of State may, but not need not, act as mentioned in
sub-paragraph (2)(a) or (b) or (3)(b) in relation to an order relating
to England if, in his opinion, no objection or representation which
has been duly made and not withdrawn relates to an issue which
15would be relevant in determining whether or not to confirm the
order (either with or without modifications) or to make it.

(5) After paragraph 2 insert—

2ZZA (1) Where at any time representations or objections duly made to an
authority in England (and not withdrawn) relate to only parts of
20an order, the authority may elect that for the purposes of
paragraph 2 and the following provisions of this Schedule, the
order shall have effect as two separate orders—

(a) the one comprising the parts to which the representations
or objections relate; and

(b) 25the other comprising the remaining parts.

(2) Where the authority is not the Secretary of State, an election for the
purposes of sub-paragraph (1) shall be given by notice to the
Secretary of State.

(3) Where an order made by an authority in England (other than the
30Secretary of State) is submitted to the Secretary of State, and any
representations or objections duly made (and not withdrawn)
relate to only parts of the order, the Secretary of State may, by
notice given to the authority, elect that it shall have effect as two
separate orders—

(a) 35the one comprising the parts to which the representations
or objections relate (“the opposed order”); and

(b) the other comprising the remaining parts.

(4) Where notice is given under sub-paragraph (3), paragraph 2 and
the following provisions of this Schedule apply as if only the
40opposed order had been submitted to the Secretary of State for
confirmation.

(5) Any reference in sub-paragraph (1) or (3) to an order includes a
reference to any part of an order which, by virtue of one or more
previous elections under that sub-paragraph, has effect as a
45separate order.

(6) In paragraph 4A (publication of orders)—

(a) the existing text becomes sub-paragraph (1);

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(b) in that sub-paragraph, for the words from “in at least one local
newspaper” to the end of the sub-paragraph substitute “(within the
meaning of sub-paragraph (2))”;

(c) after that sub-paragraph insert—

(2) 5In sub-paragraph (1), “publication” means—

(a) in relation to England, publication on a
website maintained by the authority
and on such other websites or through
the use of such other digital
10communications media as the
authority may consider appropriate;

(b) in relation to Wales, publication in at
least one local newspaper circulating
in the area in which the land to which
15the order relates is situated.

(7) In paragraph 5 (proceedings for questioning validity of orders) omit the
“and” after paragraph (b) and insert—

ERROR:This is very likely an error in markup in the FM document. Amendments generally should not occur nested in this manner [\t (ba)\tthe Schedule has effect as if after paragraph 3 there were inserted \t 3A\t(1)\tSub-paragraph (2) applies if the application relates to an order of an authority in England that has been submitted to, and confirmed by, the Secretary of State. \t\t(2)\t The High Court may quash the decision of the Secretary of State confirming the order or any part of it (either generally or in so far as it affects the interests of the applicant), instead of quashing the order or any provision of it.\xd3 ; and\xd3 . ]

(ba) the Schedule has effect as if after paragraph 3 there
were inserted—

3A (1) 20Sub-paragraph (2) applies if the application relates to an
order of an authority in England that has been submitted
to, and confirmed by, the Secretary of State.

(2) The High Court may quash the decision of the Secretary of
State confirming the order or any part of it (either generally
25or in so far as it affects the interests of the applicant),
instead of quashing the order or any provision of it.”; and...

Part 5 Consequential amendments

9 Part 3 of the Wildlife and Countryside Act 1981 is amended as follows.

10 30In section 53 (duty to keep definitive map and statement under continuous
review)—

(a) in subsection (5), for “the provisions of Schedule 14” substitute “the
provisions of Schedule 13A (in relation to England) and Schedule 14
(in relation to Wales)”;

(b) 35in subsection (6), for “the provisions of Schedule 15” substitute “the
provisions of Schedule 14A (in relation to England) and Schedule 15
(in relation to Wales)”.

11 (1) Schedule 14 (Applications for certain orders under Part 3) is amended as
follows.

(2) 40In the heading, at the end, insert “: Wales”.

(3) In paragraph 5 (interpretation), in sub-paragraph (1), for the definition of
“local authority” substitute—

  • “local authority” means a community council;.

12 (1) Schedule 15 (Procedure in connection with certain orders under Part 3) is
45amended as follows.