Infrastructure Bill (HL Bill 2)
SCHEDULE 3 continued
Infrastructure BillPage 60
(2)
A scheme may contain provision for the creation of rights and liabilities for
the purpose of converting arrangements between different parts of a
transferor’s undertaking which exist immediately before the coming into
force of the scheme into a contract between—
(a) 5different transferees, or
(b) a transferee and a transferor.
(3) A scheme may contain provision—
(a)
for rights and liabilities to be transferred so as to be enforceable by or
against—
(i) 10more than one transferee, or
(ii) both the transferee and the transferor, and
(b)
for rights and liabilities enforceable against more than one of those
people to be enforceable in different or modified respects by or
against each or any of them.
(4)
15A scheme may contain provision for interests, rights or liabilities of third
parties in relation to anything to which the scheme relates to be modified in
the manner set out in the scheme.
(5)
Paragraph 2(2) applies to the creation of interests and rights in accordance
with a scheme as it applies to the transfer of interests and rights.
20Obligation to effect transfers etc under a scheme
4
(1)
A scheme may contain provision for imposing on a transferee or a transferor
an obligation—
(a)
to enter into such agreements with another person on whom a
corresponding obligation is, could be or has been, imposed by virtue
25of this paragraph (whether in the same or a different scheme), or
(b) to execute such instruments in favour of any such person,
as may be specified or described in the scheme.
(2)
That other person may enforce an obligation imposed on a transferor or a
transferee by virtue of sub-paragraph (1) in civil proceedings.
30Effect of scheme
5
(1)
Where a scheme provides for the transfer of property, rights or liabilities, or
for the creation of interests, rights or liabilities—
(a)
the property or interests, rights or liabilities vest, without further
assurance, in the transferee at that time, and
(b)
35the provisions of that scheme in relation to that property or those
interests, rights or liabilities have effect from the time when the
scheme comes into force.
(2) Sub-paragraph (1) is subject to provision under a scheme for—
(a) the transfer of property, rights or liabilities, or
(b) 40the creation of interests, rights and liabilities,
to be effected by or under an agreement or instrument entered into or
executed in pursuance of an obligation imposed by virtue of paragraph 4(1).
(3)
A certificate issued by the Secretary of State that any property, rights or
liabilities have been transferred under a scheme is conclusive evidence of the
45transfer.
Infrastructure BillPage 61
Powers and duties under statutory provisions
6
(1)
A scheme may make provision for some or all of the powers and duties to
which this paragraph applies—
(a) to be transferred to a transferee,
(b)
5to become powers and duties that are exercisable, or must be
performed, concurrently by two or more transferees, or
(c)
to become powers and duties that are exercisable, or must be
performed, concurrently by a transferor and a transferee.
(2)
The powers and duties to which this paragraph applies are the powers and
10duties conferred or imposed upon a transferor by or under an enactment so
far as they relate to—
(a) property to be transferred in accordance with the scheme,
(b)
carrying out works designed to be used in connection with such
property, or
(c) 15acquiring land for the purpose of carrying out such works.
(3)
This paragraph does not require a restrictive construction to be given to
what may be transferred by virtue of paragraph 2(1)(e).
Supplementary provisions of schemes
7 (1) A scheme may—
(a)
20make such incidental, supplemental, consequential and transitional
provision in connection with the scheme as the Secretary of State
thinks fit;
(b) make different provision for different cases.
(2) In particular, a scheme may make provision—
(a)
25for the transferee to be treated as the same person in law as the
transferor;
(b)
for agreements made, transactions effected or other things done by
or in relation to the transferor to be treated, so far as may be
necessary for the purposes of or in connection with the transfer, as
30made, effected or done by or in relation to the transferee;
(c)
for references in an agreement, instrument or other document to the
transferor, or to an employee or office holder of the transferor, to
have effect, so far as may be necessary for the purposes of or in
connection with a transfer, with such modifications as are specified
35in the scheme;
(d)
for proceedings commenced by or against the transferor to be
continued by or against the transferee.
(3) Sub-paragraph (2)(c) does not apply to references in an enactment.
Modification of a scheme by agreement
8
(1)
40Where the transferor and transferee under a scheme that has come into force
so agree, the scheme is to be treated for all purposes as having come into
force with such modifications as may be agreed.
(2)
An agreement under this paragraph which relates to rights and liabilities
under a contract of employment may be entered into only if the employee is
45a party to the agreement.
Infrastructure BillPage 62
(3)
An agreement under this paragraph that adversely affects the property or
rights of a person other than the transferor, the transferee or such an
employee may be entered into only if that person is a party to the agreement.
(4) An agreement under this paragraph may include—
(a) 5any provision that could have been contained in the scheme;
(b)
incidental, supplemental, consequential and transitional provision
in connection with any such provision.
Continuity of employment etc
9
(1)
Where in accordance with a scheme a person employed by a transferor
10becomes an employee of a transferee—
(a)
that person is not to be regarded for the purposes of Part 11
(redundancy payments etc) of the Employment Rights Act 1996 as
having been dismissed by virtue of the transfer,
(b)
that person’s period of employment with the transferor counts for
15the purposes of that Act as a period of employment with the
transferee, and
(c)
the change of employment does not break the continuity of the
period of employment for the purposes of that Act.
(2)
Where a transfer scheme contains provision for the transfer of rights and
20liabilities relating to a person’s contract of employment but, before the
transfer takes effect, the person informs the transferor or the transferee that
the person objects to the transfer—
(a)
those rights and liabilities are not transferred under the transfer
scheme,
(b)
25the person’s contract of employment is terminated immediately
before the day on which the transfer would occur, and
(c)
the person is not, for any purpose, to be regarded as having been
dismissed.
(3)
Nothing in sub-paragraph (2) affects the person’s right to terminate the
30contract of employment if, apart from the change of employer, a substantial
change is made to the person’s detriment in the person’s working
conditions.
(4)
Where a transfer scheme contains provision for the transfer of rights and
liabilities relating to a person’s contract of employment, it may include
35provision with respect to—
(a)
the person’s eligibility to become a member of a pension scheme by
virtue of employment with the transferee;
(b)
the rights of, or rights or liabilities in respect of, the person under a
pension scheme of which the person may become a member by
40virtue of employment with the transferee;
(aa) the rights of, or rights or liabilities in respect of, the person under a pension scheme of which the person is a member by virtue of employment immediately before the transfer.
Compensation for third parties
10
(1)
A third party is entitled to compensation in respect of the extinguishment of
that party’s entitlement where—
Infrastructure BillPage 63
(a)
the entitlement is to an interest or right which would, apart from a
provision of a scheme and paragraph 2(3) and (4), have become
enforceable in respect of the transfer or creation of any property,
rights or liabilities in accordance with the scheme,
(b)
5the provisions of that scheme or of paragraph 2(3) and (4) have the
effect of preventing that party’s entitlement to that interest or right
from being enforced in respect of anything for which the scheme
provides, and
(c)
provision is not made by the scheme for securing that an entitlement
10to that interest or right, or to an equivalent interest or right, is
preserved or created so as to arise and be enforceable in respect of the
first occasion when corresponding circumstances next occur after the
coming into force of the transfers for which the scheme provides.
(2)
The amount of compensation to which a third party is entitled under this
15paragraph is the amount necessary for securing, to the extent that it is just to
do so, that the third party does not suffer financial loss from the
extinguishment of the entitlement.
(3)
A liability to pay compensation under this paragraph falls on the Secretary
of State.
(4) 20This paragraph has effect in relation to—
(a)
the provisions of an agreement or instrument entered into or
executed in pursuance of an obligation imposed by a scheme, and
(b)
the provisions of an agreement under paragraph 8 relating to
property, rights or liabilities transferred or created in accordance
25with a scheme,
as it has effect in relation to the scheme but as if, in the case of an agreement
under paragraph 8, only persons who are not parties to the agreement were
third parties.
Provision of information to Secretary of State for the purposes of making a scheme
11
(1)
30The Secretary of State may direct a strategic highways company, or a former
strategic highways company, to provide such information as he or she may
consider necessary for the purposes of making a scheme.
(2)
The direction must specify the period within which the information is to be
provided.
(3)
35The period specified in the direction must be not less than 28 days beginning
with the day on which the direction is given.
(4)
If the company fails to comply with the direction, the Secretary of State may
serve a notice on the company requiring—
(a)
production to the Secretary of State of any documents which are
40specified or described in the notice and are in the custody or under
the control of that company, or
(b)
provision to the Secretary of State of such information as may be
specified or described in the notice.
(5)
Documents or information to be produced or provided in accordance with
45such a notice must be produced or provided at the time and place, and in the
form and manner, specified in the notice.
(6) A direction or notice under this paragraph may not require—
Infrastructure BillPage 64
(a)
production of a document which a person could not be compelled to
produce in civil proceedings, or
(b)
provision of information which a person could not be compelled to
give in evidence in such proceedings.
(7)
5If a strategic highways company fails to comply with a notice under sub-
paragraph (4), the 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.
(8)
Any order under sub-paragraph (7) may include provision requiring all the
10costs or expenses of, or incidental to, the application to be borne by one or
more of the following—
(a) the strategic highways company in default;
(b) any officers of that company who are responsible for its default.
(9)
In this paragraph, reference to the production of a document includes
15reference to the production of a legible and intelligible copy of information
recorded otherwise than in legible form.
Interpretation
12 (1) In this Schedule—
-
“third party”, in relation to a scheme, means a person other than a
20transferor and a transferee; -
“transferee”—
(a)in relation to a scheme, means a person to whom property,
rights or liabilities are transferred in accordance with the
scheme, and(b)25in relation to particular property, rights or liabilities
transferred or created in accordance with a scheme, means
the person—(i)to whom that property or those rights or liabilities are
transferred, or(ii)30in whose favour, or in relation to whom, they are
created; -
“transferor”—
(a)in relation to a scheme, means the person from whom
property, rights or liabilities are transferred in accordance
35with the scheme, and(b)in relation to particular property, rights or liabilities
transferred or created in accordance with a scheme, means
the person—(i)from whom that property or those rights or liabilities
40are transferred,(ii)who, or whose property, is subject to the interest or
right created, or(iii)for whose benefit the liability is created;
-
“scheme” means a scheme under section 10.
(2)
45In this Schedule, reference to employment includes reference to
employment in the civil service of the State and, in respect of such
employment—
Infrastructure BillPage 65
(a)
reference to a contract of employment is to be treated as a reference
to the terms of employment in the civil service of the State, and
(b)
reference to a dismissal is to be treated as a reference to the
termination of the employment.
(3) 5References in this Schedule—
(a)
to a right or to an entitlement to a right include references to an
entitlement to exercise a right, and
(b) to a right’s arising include references to its becoming exercisable.
Section 23
SCHEDULE 4 10Transfer of responsibility for local land charges to Land Registry
Part 1 Amendments to the Local Land Charges Act 1975
1 The Local Land Charges Act 1975 is amended as follows.
2 In the italic heading before section 3 for “registers” substitute “register”.
3
15For section 3 (registering authorities, local land charges registers, and
indexes) substitute—
“3 The local land charges register
(1) The Chief Land Registrar must keep the local land charges register.
(2) The local land charges register is a register of—
(a)
20each local land charge registered in a local land charges
register for a local authority’s area immediately before this
section first had effect in relation to that area, and
(b)
each local land charge subsequently registered under section
5 in respect of land which is wholly or partly within that area.
(3)
25Subsection (2) is subject to any later variation or cancellation of the
registration of the local land charge.
(4) The local land charges register may be kept in electronic form.
(5) In this section “local authority” means—
(a) a district council,
(b)
30a county council in England for an area for which there is no
district council,
(c) a county council in Wales,
(d) a county borough council,
(e) a London borough council,
(f) 35the Common Council of the City of London, or
(g) the Council of the Isles of Scilly.
(6)
For the purposes of this section the area of the Common Council of
the City of London includes the Inner Temple and the Middle
Temple.”
Infrastructure BillPage 66
4 Omit section 4 (the appropriate local land charges register).
5 (1) Section 5 (registration) is amended as follows.
(2) Omit subsection (1).
(3) For subsections (2) and (3) substitute—
“(2)
5Subject to subsection (6) below, the originating authority as respects
a local land charge must apply to the Chief Land Registrar for its
registration in the local land charges register; and on the application
being made the Chief Land Registrar must register the charge
accordingly.
(3)
10The registration in the local land charges register of a local land
charge, or of any matter which when registered becomes a local land
charge, must be carried out by reference to the land affected.”
(4)
In subsection (6) for “a local land charges register” substitute “the local land
charges register”.
6
(1)
15Section 6 (local authority’s right to register a general charge against land in
certain circumstances) is amended as follows.
(2) For subsection (2) substitute—
“(2)
At any time before the specific charge comes into existence, the Chief
Land Registrar must register a general charge against the land,
20without any amount being specified, in the local land charges
register if the originating authority make an application for that
purpose.”
(3) In subsection (3) for “5(1) and (2)” substitute “5(2)”.
(4) In subsection (4)—
(a)
25for “pursuant to an application by the originating authority, they”
substitute “the originating authority”, and
(b) for “registering authority” substitute “Chief Land Registrar”.
7 (1) Section 8 (personal searches) is amended as follows.
(2) In subsection (1)—
(a)
30for “any local land charges register” substitute “the local land
charges register”, and
(b) after “fee” insert “(if any)”.
(3) In subsection (1A)—
(a)
for “a local land charges register is kept otherwise than in
35documentary” substitute “the local land charges register is kept in
electronic”, and
(b) for “registering authority” substitute “Chief Land Registrar”.
(4) In subsection (2)—
(a)
for “a registering authority” substitute “the Chief Land Registrar”,
40and
(b) omit “authority’s”.
8 (1) Section 9 (official searches) is amended as follows.
Infrastructure BillPage 67
(2) In subsection (1)—
(a) omit “appropriate”, and
(b) for “registering authority” substitute “Chief Land Registrar”.
(3) Omit subsection (2).
(4) 5For subsections (3) and (3A) substitute—
“(3)
The prescribed fee (if any) shall be payable in the prescribed manner
in respect of any requisition made under this section.”
(5) In subsection (4)—
(a) for “a registering authority” substitute “the Chief Land Registrar”,
(b) 10omit “or (3A)”, and
(c) for “the registering authority” substitute “the Chief Land Registrar”.
(6)
In consequence of the amendment made by sub-paragraph (5)(b), in
Schedule 4 to the Constitutional Reform Act 2005 omit paragraph 84(3)(b).
9
(1)
Section 10 (compensation for non-registration or defective official search
15certificate) is amended as follows.
(2) In subsection (1)—
(a) omit “appropriate” in each place,
(b) in paragraph (aa) for “in a case where” substitute “if”, and
(c)
in that paragraph for “otherwise than in documentary” substitute “in
20electronic”.
(3) Omit subsection (2).
(4)
In subsection (4) for “registering authority in whose area the land affected is
situated” substitute “Chief Land Registrar”.
(5) In subsection (5)—
(a)
25for the words from “a registering authority” to “not the originating
authority” substitute “the Chief Land Registrar”, and
(b)
for “the registering authority” in each place substitute “the Chief
Land Registrar”.
(6) After that subsection insert—
“(5A)
30An amount equal to any compensation paid under this section by the
Chief Land Registrar in respect of a local land charge is also
recoverable from the originating authority in a case where the matter
within subsection (1) giving rise to the Chief Land Registrar’s
liability is a consequence of—
(a)
35an error made by the originating authority in applying to
register the local land charge, or
(b)
an error made by the originating authority in applying for the
registration of the local land charge to be varied or
cancelled.”
(7) 40In subsection (6)—
(a) for “a registering authority” substitute “the Chief Land Registrar”,
(b) for “that authority” substitute “the Chief Land Registrar”,
(c) after “(5)” in each place insert “or (5A)”, and
(d) for “the registering authority” substitute “the Chief Land Registrar”.
Infrastructure BillPage 68
(8) After subsection (6) insert—
“(6A)
The Chief Land Registrar may insure against the risk of liability to
pay compensation under this section.”
(9) In subsection (7) for “Limitation Act 1939” substitute “Limitation Act 1980”.
(10)
5In subsection (9) for “registering authority’s” substitute “Chief Land
Registrar’s”.
10
In section 12 (office copies as evidence) for “any local land charges register”
substitute “the local land charges register”.
11
In section 13 (protection of solicitors, trustees etc) for “a local land charges
10register” substitute “the local land charges register”.
12
(1)
Omit section 13A (specification of fees by registering authorities in
England).
(2)
In consequence of the amendment made by sub-paragraph (1), in Schedule
4 to the Constitutional Reform Act 2005 omit paragraph 83.
13 (1) 15Section 14 (rules) is amended as follows.
(2) In subsection (1)—
(a)
in paragraph (a) for “registering authorities” substitute “the Chief
Land Registrar”,
(b) after paragraph (f) insert—
“(fa)
20as to the variation without an order of the court of the
registration of a local land charge—
(i)
on the application or with the consent of the
person by whom it is enforceable, or
(ii) of the Chief Land Registrar’s own motion;”,
(c) 25for paragraph (g) substitute—
“(g)
as to the cancellation without an order of the court of
the registration of a local land charge—
(i) on its cesser,
(ii)
on the application or with the consent of the
30person by whom it is or was enforceable, or
(iii)
of the Chief Land Registrar’s own motion;”,
and”
(d) for paragraph (h) substitute—
“(h)
for prescribing the fees to be paid to the Chief Land
35Registrar for services relating to local land charges
provided by the Chief Land Registrar.”
(3) In subsection (2)—
(a)
in paragraph (a) for “any local land charges register” substitute “the
local land charges register”,
(b) 40after paragraph (a) insert—
“(aa) power to make rules—
(i)
prescribing different fees for different services
or descriptions of service;
(ii)
prescribing services or descriptions of service
45for which no fees are payable;”, and
Infrastructure BillPage 69
(c)
for paragraph (b) and the “and” at the end of that paragraph
substitute—
“(b)
power to make rules about communications for the
purposes of this Act, or any statutory provision by
5virtue of which any matter is registrable in the local
land charges register, including rules as to—
(i)
the particular means of communication which
may or must be used for such purposes
(which may include an electronic means of
10communication),
(ii)
the circumstances in which a particular means
of communication may or must be used
(which may be all circumstances, subject to
exceptions);
(iii)
15the form or contents of anything sent using a
particular means of communication;
(ba)
power to make rules requiring or enabling anything
which is provided to or by the Chief Land Registrar
for the purposes of this Act, or any statutory
20provision by virtue of which any matter is registrable
in the local land charges register, to be provided in
electronic form;
(bb)
power to make rules enabling the Chief Land
Registrar, or a person providing services to the Chief
25Land Registrar, to determine—
(i) any matter within paragraph (b), or
(ii)
whether anything of the kind referred to in
paragraph (ba) may or must be provided in
electronic form; and”.
(4) 30After subsection (3) insert—
“(4)
The Lord Chancellor must obtain the consent of the Welsh Ministers
before making rules under subsection (1)(h).”
14
In section 15(b) for “a registering authority” substitute “the Chief Land
Registrar”.
15 (1) 35Section 16 (interpretation) is amended as follows.
(2)
In subsection (1) omit the definitions of “the appropriate local land charges
register” and “the registering authority”.
(3)
In subsection (1A) for “otherwise than in documentary” substitute “in
electronic”.
16
40In section 19(4) (transitional provision) omit the words from “In so far as” to
“so made, but”.
Part 2 Amendments to the Land Registration Act 2002
17 The Land Registration Act 2002 is amended as follows.