Deregulation Bill (HC Bill 191)

(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;
5and 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withdrawn.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) 10Where 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
15falls 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
20publicity 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
25defraying of costs of, inquiries) are to apply in relation to any
hearing or local inquiry held under paragraph 13 or 14 as they
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
30or 14 by a person appointed under paragraph 15, subsection (5) of
that 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
35as to costs where no hearing or inquiry takes place) applies in
relation 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 40Orders: general

Notice 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
45must give notice—

(a) describing 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
5order relates is situated where a copy of the order as
confirmed 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
105(2)(a);

(b) by 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
15as the notices required to be displayed under paragraph
5(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
20relates to that land or, as the case may be, the area of that authority;
and, 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
25copy of the order as confirmed.

(4) As 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
authority must give notice of the decision by serving a copy of it
30on 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) If 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
35the 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
from the date of publication of the notice under paragraph 17
make an application to the High Court under this paragraph.

(2) 40On 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
comply with those requirements, quash the order, or any
provision of the order, either generally or in so far as it affects the
45interests 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
Secretary 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) 5Except 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
10on 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) 15In 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
  20a 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.

(4) 25Regulations 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 Highways Act 1980

8 (1) 30Schedule 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) in sub-paragraph (3), in paragraph (a), for the words from “in at least
35one 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”
means—

(a) 40in relation to England, publication on a
website maintained by the authority
and on such other websites or through
the use of such other digital
communications media as the
45authority 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
the order relates is situated.”

(3) 5 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
withdrawn), but the authority consider that none of the
10representations 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) If representations or objections have been duly made to such an
15authority (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) the one comprising the modifications to which the relevant
20representations 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;

and the provisions of this Schedule apply accordingly.

(2ZC) 25For the purposes of this paragraph, a representation or objection is
relevant if, were the order to be submitted to the Secretary of State,
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
30(2ZA) or (2ZB), an authority shall have regard to any guidance
given 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
35decision and the reasons for it.”

(4) In 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
40has 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) or to make it.”

(5) After paragraph 2 insert—

“2ZZA (1) Where at any time representations or objections duly made to an
45authority in England (and not withdrawn) relate to only parts of
an 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) the other comprising the remaining parts.

(2) Where the authority is not the Secretary of State, an election for the
5purposes 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
Secretary of State) is submitted to the Secretary of State, and any
representations or objections duly made (and not withdrawn)
10relate 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) the one comprising the parts to which the representations
or objections relate (“the opposed order”); and

(b) 15the 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
opposed order had been submitted to the Secretary of State for
confirmation.

(5) 20Any 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
separate order.”

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

(a) 25the existing text becomes sub-paragraph (1);

(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) 30In 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
35communications 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
40the 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) 45Sub-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
or in so far as it affects the interests of the applicant),
instead of quashing the order or any provision of it.”; and”.”.”.

5Part 5 Consequential amendments

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

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

(a) 10in 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) in subsection (6), for “the provisions of Schedule 15” substitute “the
provisions of Schedule 14A (in relation to England) and Schedule 15
15(in relation to Wales)”.

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

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

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

• “ “local authority” means a community council;”.

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

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

(3) 25In paragraph 13 (interpretation), in sub-paragraph (2), for the definition of
“local authority” substitute—

• “ “local authority” means a community council;”.

Section 30

SCHEDULE 8 Provision of passenger rail services

30Consequential amendments

1 The Transport Act 1968 is amended in accordance with paragraphs 2 to 5.

2 (1) Section 10(1) is amended as follows.

(2) In paragraph (iii), before “(ii)”, in both places, insert “(ia)(b) or”.

(3) In paragraph (iv), before “(ii)” insert “(ia),”.

(4) 35After paragraph (viiia), insert—

“(viiiaa) where that area is in England, to let locomotives and other
rolling stock on hire to a person not falling within paragraph

(viiia) for or in connection with the provision of railway
passenger services;”.

(5) In paragraph (viiib), at the beginning insert “where that area is in Wales or
Scotland,”.

3 5In section 10(1), paragraphs (vi) and (viza) have effect, until the day on
which the repeal of those provisions in relation to Scotland by section
14(1)(a) of the Railways Act 2005 comes into force, as if for “(ii)” there were
substituted “(ia)(b)”.

4 (1) Section 20 (special duty of certain Executives with respect to railway
10passenger services) is amended as follows.

(2) In paragraph (a) of subsection (2), omit the words from “for the purposes” to
the end of the paragraph.

(3) After subsection (2) insert—

“(2A) For the purposes of subsection (2)(a) “permitted distance”, in relation
15to an integrated transport area or a passenger transport area, means
the distance of 25 miles from the nearest point on the boundary of
that area.”

5 In section 23A (interpretation of certain provisions of this Part relating to
railways), after subsection (1) insert—

“(1A) 20For the purposes of section 10, “railway” has the meaning given in
section 67(1) of the Transport and Works Act 1992.”

6 Section 119 of the Transport Act 1985 (bus substitution services and bus
service conditions) has effect, until the repeal of the section by Part 4 of
Schedule 31 to the Transport Act 2000 comes into force, as if—

(a) 25in subsection (3) the words from “for the purposes” to the end of the
subsection were omitted;

(b) after subsection (5) there were inserted—

“(5A) For the purposes of subsection (3) “permitted distance”, in
relation to a passenger transport area, means the distance of
3025 miles from the nearest point on the boundary of that area.”

7 In section 13 of the Railways Act 2005 (railway functions of Passenger
Transport Executives), in subsection (9), for the words from “has the same
meaning” to the end substitute “, in relation to an integrated transport area,
means the distance of 25 miles from the nearest point on the boundary of
35that area.”

Franchise exemptions granted by Secretary of State: protection of railway assets etc

8 After section 24 of the Railways Act 1993 insert—

“24A Secretary of State franchise exemptions: operator agreements

(1) Conditions specified in an order under section 24 made by the
40Secretary of State may, in particular, include conditions which are to
apply to any person providing services under an operator
agreement.

(2) An order under section 24 made by the Secretary of State may
include provision which, subject to any modifications that the
Secretary of State considers appropriate, has an effect in connection
with operator agreements which corresponds or is similar to the
5effect of the following provisions in connection with franchise
agreements—

(a) section 27(3) of this Act (restrictions on transfer or creation of
security over assets);

(b) section 27(5) of this Act (transactions entered into in breach of
10restrictions to be void);

(c) section 27(6) and (7) of this Act (no execution or other legal
process etc in respect of assets);

(d) section 31 of this Act (disapplication of legislation: security of
tenure of business premises);

(e) 15sections 55 to 58 of this Act (enforcement);

(f) section 12 of, and Schedule 2 to, the Railways Act 2005
(transfer schemes), subject to subsection (4) below.

(3) Provision included in an order by virtue of subsection (2) may be
made by applying the provision in question, subject to any
20modifications that the Secretary of State considers appropriate.

(4) The provision which may be included in an order by virtue of
subsection (2)(f) is subject to the following restrictions—

(a) it is to be provision which applies only where an operator
agreement is or has been in force to which one of the
25following is or was party—

(i) a Passenger Transport Executive,

(ii) a local transport authority, or

(iii) a relevant company;

(b) the person entitled under the provision to make a transfer
30scheme is to be a Passenger Transport Executive or local
transport authority which—

(i) is or was party to the operator agreement, or

(ii) is the owner, or one of the owners, of a relevant
company which is or was party to the operator
35agreement;

(c) the persons to whom assets may be transferred under a
scheme made under the provision are to be—

(i) the Passenger Transport Executive or local transport
authority which makes the scheme;

(ii) 40any other Passenger Transport Executive or local
transport authority which—

(a) is or was party to the operator agreement, or

(b) is the owner, or one of the owners, of a
relevant company which is or was party to the
45operator agreement;

(iii) a relevant company;

(iv) a person who is, or is to be, the operator under an
operator agreement.

(5) In this section—

Deregulation BillPage 118

• “local transport authority” has the same meaning as in Part 2 of
  the Transport Act 2000 (see section 108(4) of that Act);

• “operator agreement” means any agreement which a person
  who has the benefit of a franchise exemption may enter into
  5for another person (“the operator”) to provide the services (or
  any part of the services) in respect of which the exemption is
  granted;

• “Passenger Transport Executive” means a body which is such
  an Executive for the purposes of Part 2 of the Transport Act
  101968;

• “relevant company” means—

  (a)

  a company that is wholly owned by a Passenger
  Transport Executive or a local transport authority, or

  (b)

  a company of which each owner is a Passenger
  15Transport Executive or a local transport authority.”

Minor correcting amendments

9 (1) In section 30 of the Railways Act 1993 (duty of relevant franchising
authority), subsection (3) is amended as follows.

(2) In paragraph (b)—

(a) 20for “notice” substitute “proposal”;

(b) for “the proposal date specified for the purposes of subsection
(5)(a)(ii) of that section” substitute “the date for the discontinuance of
services specified in the proposal”.

(3) In paragraph (c), for “subsection (2)” substitute “subsection (3)”.

Section 31

25SCHEDULE 9 Regulation of the use of roads and railways

Part 1 Permit schemes: removal of requirement for Secretary of State approval

1 Part 3 of the Traffic Management Act 2004 (permit schemes) is amended as
30follows.

2 (1) Section 33 (preparation of permit schemes) is amended as follows.

(2) For subsection (1) substitute—

“(1) A local highway authority in England, or two or more such
authorities acting together, may prepare a permit scheme.

(1A) 35A local highway authority in Wales, or two or more such authorities
acting together, may prepare and submit to the Welsh Ministers a
permit scheme.”

(3) For subsection (2) substitute—

“(2) The Secretary of State may direct a local highway authority in
40England, or two or more such authorities acting together, to prepare

and give effect to a permit scheme which takes such form as the
Secretary of State may direct.

(2A) The Welsh Ministers may direct a local highway authority in Wales,
or two or more such authorities acting together, to prepare and
5submit to them a permit scheme which takes such form as the Welsh
Ministers may direct.”

3 After section 33 insert—

“33A Implementation of local highway authority permit schemes: England

(1) This section applies to a permit scheme prepared by a local highway
10authority in England, or two or more such authorities acting
together, in accordance with section 33(1) or (2).

(2) The scheme shall not have effect in the area of a participating
authority unless the authority gives effect to it by order.

(3) For the purposes of subsection (2) a local highway authority is a
15“participating authority” in relation to a permit scheme if it is the
highway authority for any of the streets in which the scheme is to
control the carrying out of works.

(4) An order under subsection (2)—

(a) must set out the scheme and specify the date on which the
20scheme is to come into effect, and

(b) may (in accordance with permit regulations) include
provisions which disapply or modify enactments to the
extent specified in the order.”

4 (1) Section 34 (implementation of local highway authority permit schemes) is
25amended as follows.

(2) In subsection (1)—

(a) after “prepared” insert “by a local highway authority in Wales”;

(b) for “appropriate national authority (“the authority”)” substitute
“Welsh Ministers”;

(c) 30for “33(1) or (2)” substitute “33(1A) or (2A)”.

(3) In subsection (2), for “authority” substitute “Welsh Ministers”.

(4) In subsection (3), for “it approves” substitute “the Welsh Ministers approve”.

(5) In subsection (4), for “the authority by order gives” substitute “the Welsh
Ministers by order give”.

(6) 35In the heading, at the end insert “: Wales”.

5 For section 36 (variation and revocation of permit schemes) substitute—

“36 Variation and revocation of permit schemes

(1) A local highway authority in England may by order vary or revoke
a permit scheme to the extent that it has effect in the area of the
40authority by virtue of an order made by the authority under section
33A(2).