High Speed Rail (London - West Midlands) Bill (HC Bill 2)

(e) in paragraph 9(1), the reference to a part of the land which includes
the part comprised in the general vesting declaration were to a part
of the land which includes the land over which the right or covenant
comprised in the declaration is proposed to be exercisable or
5enforceable, and

(f) any reference, in relation to the acquiring authority, to entering upon
or taking possession of land were to entering upon land for the
purpose of exercising the right acquired or enforcing the restrictive
covenant imposed.

Section 6

10SCHEDULE 10 Acquisition of part of land only

1 (1) The person to whom the notice to treat mentioned in section 6 is given (“the
owner”) may, within the period of 21 days beginning with the day on which
the notice is given, give the Secretary of State a counter-notice—

(a) 15objecting to the sale of the part (“the land subject to the notice to
treat”), and

(b) stating that he or she is willing and able to sell the whole (“the land
subject to the counter-notice”).

(2) If no counter-notice is given under sub-paragraph (1), the owner is required
20to sell the land subject to the notice to treat.

(3) If—

(a) a counter-notice is given under sub-paragraph (1), and

(b) the Secretary of State agrees to take the land subject to the counter-
notice,

25the notice to treat is to be deemed to be a notice to treat in addition for the
remainder of the land subject to the counter-notice.

(4) If—

(a) a counter-notice is given under sub-paragraph (1), and

(b) the Secretary of State does not agree to take the land subject to the
30counter-notice,

the question as to what land the owner is required to sell must be referred to
the Upper Tribunal.

2 (1) If, on a reference under paragraph 1(4), the Upper Tribunal determines that
the land subject to the notice to treat can be taken—

(a) 35without material detriment to the remainder of the land subject to
the counter-notice, and

(b) where the land subject to the notice to treat consists of or includes
garden only land, without seriously affecting the amenity and
convenience of the house to which the garden only land belongs,

40the owner is required to sell the land subject to the notice to treat.

(2) If, on such a reference, the Upper Tribunal determines that only part of the
land subject to the notice to treat can be taken as mentioned in sub-
paragraph (1), the notice to treat is to be deemed to be a notice to treat for
that part.

(3) If, on such a reference, the Upper Tribunal determines—

(a) that none of the land subject to the notice to treat can be taken
without material detriment to the remainder of the land subject to
the counter-notice, but

(b) 5that the material detriment is confined to part of the remainder of
that land,

then, except where sub-paragraph (4) applies, the notice to treat is to be
deemed to be a notice to treat in addition for the land to which the material
detriment is confined.

(4) 10If, in a case where the land subject to the notice to treat consists of or includes
garden only land, the Upper Tribunal determines on such a reference that
none of the land subject to the notice to treat can be taken without seriously
affecting the amenity or convenience of the house to which the garden only
land belongs, the notice to treat is to be deemed to be a notice to treat in
15addition for the remainder of the land subject to the counter-notice.

(5) If, on such a reference, the Upper Tribunal determines—

(a) that none of the land subject to the notice to treat can be taken
without material detriment to the remainder of the land subject to
the counter-notice, and

(b) 20that the material detriment is not confined to part of the remainder
of that land,

the notice to treat is to be deemed to be a notice to treat in addition for the
remainder of the land subject to the counter-notice.

(6) For the purposes of this paragraph, the land subject to the notice to treat
25consists of or includes “garden only land” if—

(a) it consists of the whole part or part of a park or garden belonging to
a house, or

(b) it includes the whole or part of such a park or garden but does not
include the house or any part of it.

3 (1) 30Where under paragraph 2 a notice to treat is deemed by virtue of a
determination of the Upper Tribunal to be a notice to treat for less land or
more land than that specified in the notice, the Secretary of State may, within
the period of 6 weeks beginning with the day on which the determination is
made, withdraw the notice.

(2) 35If the Secretary of State withdraws a notice to treat under sub-paragraph (1),
the Secretary of State must pay the person to whom the notice was given
compensation for any loss or expense occasioned to that person by the
giving and withdrawal of the notice; and in case of dispute, such
compensation is to be determined by the Upper Tribunal.

(3) 40Where under paragraph 1 or 2 a person is required to sell part only of a
house, building or manufactory or of land consisting of a house with a park
or garden, the Secretary of State must pay the person compensation for any
loss sustained by the person due to the severance of that part in addition to
the value of the interest acquired.

(4) 45A notice to treat has the effect which it is deemed to have under paragraph
1(3) or paragraph 2(3), (4) or (5) whether or not the additional land is, apart
from that provision, land which the Secretary of State is authorised to
acquire compulsorily under this Act.

Section 8

SCHEDULE 11 Land with restrictions relating to surface acquisition

Restriction of power of compulsory acquisition to land under the surface

1 In the case of land specified in the following table, the power under section
54(1) may be exercised only in relation to so much of the subsoil or under-
surface of the land as lies more than 9 metres below the level of the surface.

Restriction of power of compulsory acquisition to land under the surface or rights of passage

2 (1) In the case of land specified in the following table, the power under section
4(1) may be exercised only in either or both of the following ways—

(a) in relation to so much of the subsoil or under-surface of the land as
15lies more than 9 metres below the level of the surface;

(b) so as to acquire rights of passage.

(2) In this paragraph, “rights of passage” means easements or other rights over
land for the passage of persons or vehicles (with or without materials, plant
and machinery) for Phase One purposes.

Supplementary

3 (1) 25Paragraphs 1 and 2 are subject to any power to impose restrictive covenants
by virtue of section 5(2).

(2) Paragraphs 1 and 2 do not restrict the exercise of the power under section
4(1) in relation to a cellar, vault, arch or other construction in, on or under a
highway which forms part of a building fronting on to the highway where—

(a) 30the building is within the Act limits, and

(b) the power under section 4(1) is exercisable in relation to the building.

Section 9

SCHEDULE 12 Highways: restrictions on powers to use subsoil and acquire land

Section 10

SCHEDULE 13 Right to require acquisition where time limit extended

1 (1) 10If the Secretary of State makes an order under section 10(2), the following
provisions have effect as from the coming into force of the order.

(2) Those provisions do not apply to any subsoil or under-surface of land
required only for the construction of a work at a level more than 9 metres
below the level of the surface of the land.

2 (1) 15Sub-paragraph (2) applies if a person with a qualifying interest in any of the
land in relation to which the order is made gives notice to the Secretary of
State (a “relevant notice”) that the person desires his or her interest in such
of that land as is specified in the notice to be acquired by the Secretary of
State.

(2) 20The Secretary of State must, within 3 months immediately following receipt
of the relevant notice—

(a) enter into an agreement with the person for the acquisition of the
person’s interest in the whole or part of the land specified in the
notice,

(b) 25exercise the applicable compulsory acquisition powers in respect of
the person’s interest in the whole or part of that land, or

(c) give the person notice of the Secretary of State’s intention not to
proceed with the purchase of the person’s interest in any of that land.

(3) For the purposes of sub-paragraph (1) a person has a “qualifying interest” in
30land if the person is the owner or lessee of the land.

3 (1) Where a person gives the Secretary of State a relevant notice and the
Secretary of State—

(a) fails to comply with the requirements of sub-paragraph (2) of
paragraph 2,

(b) 35withdraws a notice to treat served in compliance with paragraph (b)
of that sub-paragraph, or

(c) gives the person a notice under paragraph (c) of that sub-paragraph,

the applicable compulsory acquisition powers cease to be exercisable in
respect of that person’s interest in any of the land specified in the relevant
40notice.

(2) Where—

(a) a person gives the Secretary of State a relevant notice, and

(b) the Secretary of State acquires in pursuance of paragraph 2(2)(a) or
(b) the person’s interest in some, but not all, of the land specified in
the notice,

the applicable compulsory acquisition powers cease to be exercisable in
5respect of that person’s interest in the remainder of that land.

4 (1) References in this Schedule to the “applicable compulsory acquisition
powers” are to—

(a) the power to serve a notice to treat under Part 1 of the Compulsory
Purchase Act 1965, as applied by section 4(3) to the acquisition of
10land under section 4(1), and

(b) the power to execute a declaration under section 4 of the
Compulsory Purchase (Vesting Declarations) Act 1981, as applied by
section 4(4) to the acquisition of land under section 4(1).

(2) In this Schedule—

• 15“lessee” means a person who holds an interest under a lease which has
  at least 21 years to run at the date of the giving of a relevant notice by
  that person;

• “owner”, in relation to land, means a person, other than a mortgagee
  not in possession, who is for the time being entitled to dispose of the
  20fee simple of the land, whether in possession or reversion.

Section 11

SCHEDULE 14 Extinction of rights over land

Land to which Schedule applies

1 This Schedule applies to—

(a) 25land within the Act limits which is held by the Secretary of State for
Phase One purposes, and

(b) land within the Act limits in relation to which the Secretary of State
has acquired a right (whether by creating a new right or acquiring an
existing right) or imposed a restrictive covenant for Phase One
30purposes.

Private rights

2 (1) All private rights over land within paragraph 1(a) are extinguished at the
appropriate time.

(2) All private rights over land within paragraph 1(b) are extinguished at the
35appropriate time, so far as the continuance of those rights would be
inconsistent with the exercise of the right acquired or the restrictive
covenant imposed.

(3) In this Schedule, “private rights” include—

(a) private rights of way over land,

(b) 40rights of common,

(c) easements, liberties, privileges, rights or advantages annexed to land
and adversely affecting other land, including any natural right to
support, and