Deregulation Bill (HL Bill 95)

8(3)(b) of Schedule 13A or by the Secretary of State under
paragraph 8(3)(c) of that Schedule.

Consultation

3 Before making an order, the authority must consult with every
5local authority whose area includes the land to which the order
relates.

Coming into operation

4 (1) A modification consent order does not take effect until confirmed
by the authority under paragraph 9.

(2) 10Any other order does not take effect until confirmed either by the
authority or the Secretary of State under paragraph 10 or by the
Secretary of State under paragraph 13.

Publicity for orders

5 (1) On making an order, the authority must give notice in the
15prescribed form—

(a) describing the general effect of the order and stating that it
has been made and requires confirmation;

(b) naming a place in the area in which the land to which the
order relates is situated where a copy of the order may be
20inspected free of charge, and copies may be obtained at a
reasonable charge, at all reasonable hours; and

(c) specifying the time (not being less than 42 days from the
date of the first publication of the notice) within which,
and the manner in which, representations or objections
25with respect to the order, which must include particulars
of the grounds relied on, may be made.

(2) Subject to sub-paragraph (4), the notice to be given under sub-
paragraph (1) must be given—

(a) by publication on a website maintained by the authority
30and on such other websites or through the use of such
other digital communications media as the authority may
consider appropriate;

(b) by serving a like notice on—

(i) every owner and occupier of any of that land;

(ii) 35every local authority whose area includes any of
that land;

(iii) every person on whom notice is required to be
served in pursuance of sub-paragraph (3); and

(iv) such other persons as may be prescribed in relation
40to the area in which that land is situated or as the
authority may consider appropriate; and

(c) by causing a copy of the notice to be displayed in a
prominent position—

(i) at the ends of so much of any way as is affected by
45the order;

(ii) at council offices in the locality of the land to which
the order relates; and

(iii) at such other places as the authority may consider
appropriate.

(3) 5Any person may, on payment of such reasonable charge as the
authority may consider appropriate, require an authority to give
the person notice of all such orders as—

(a) are made by the authority during a period specified in the
requirement;

(b) 10are of a description so specified;

(c) and relate to land comprised in an area so specified.

(4) In the case of a modification consent order, the authority may
decide that it is not necessary to comply with sub-paragraph
(2)(b)(i) and, in any other case, the Secretary of State may give a
15direction that it is not necessary to comply with it.

(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
20owner 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
25must 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) 30At 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) 35as 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
40where 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
or 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
5included in representations made under paragraph 13(1)(b) or
14(3)(b).

Irrelevant representations or objections

6 (1) If representations or objections have been duly made about an
order to an authority (and not withdrawn) but the authority
10consider 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
Schedule apply accordingly).

(2) For the purposes of this paragraph, a representation or objection is
15relevant 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) In deciding whether to exercise their power under sub-paragraph
(1), an authority must have regard to any guidance given by the
20Secretary of State.

(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) 25Nothing 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
30Secretary 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) 35the 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) 40Nothing 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

relevant, 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) 5the other, comprising the remaining modifications, which
is 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
10relevant 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) In deciding whether to exercise their power under sub-paragraph
(1), an authority must have regard to any guidance given by the
15Secretary of State.

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

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) 25with 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) 30If 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
35her.

(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 40If 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
all 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
5effect as two separate orders—

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

(b) the other comprising the remaining modifications.

(2) 10Where 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
confirmation.

(3) Any reference in sub-paragraph (1) to an order includes a
15reference 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) Where an order is submitted to the Secretary of State under
paragraph 11, the Secretary of State must, subject to sub-
20paragraph (2), 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
make representations (or further representations) to a
25person appointed by the Secretary of State for the purpose;
or

(c) afford any person by whom a representation or objection
has been duly made and not withdrawn an opportunity to
be heard by a person appointed by the Secretary of State
30for 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
representation or objection which has been duly made and not
withdrawn relates to an issue which would be relevant in
35determining whether or not to confirm the order, either with or
without modifications.

(3) On considering any representations or objections duly made and
the report of any person appointed to hold an inquiry, or
appointed as mentioned in sub-paragraph (1)(b) or (c), the
40Secretary of State may confirm the order with or without
modifications.

Restriction on power to confirm orders with modifications

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

(a) 45to 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) to 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
5her to be requisite of his or her proposal so to modify the order,
specifying 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,
10may be made.

(3) If 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
15has been duly made and not withdrawn, an opportunity to
make 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
20has been duly made and not withdrawn, an opportunity to
be heard by a person appointed by the Secretary of State
for that purpose.

(4) The Secretary of State must consider the report of any person
appointed to hold an inquiry or appointed as mentioned in sub-
25paragraph (3)(b) or (c).

(5) The Secretary of State may, but need not, act as mentioned in sub-
paragraph (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
30to confirm the order in accordance with his or her proposal.

(6) Sub-paragraph (2) is not be construed as limiting the grounds
which 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).

35Appointment of inspectors etc

15 (1) A decision of the Secretary of State under paragraph 10, 13 or 14
must, 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
40of 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
decision 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
45sub-paragraph, falls to be made by a person appointed by the
Secretary of State is instead to be made by the Secretary of State;
and 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) Where the Secretary of State has appointed a person to make a
5decision 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
falls to be made by the Secretary of State or any other person
10instead 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
publicity to any directions given by the Secretary of State under
15this 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
defraying of costs of, inquiries) are to apply in relation to any
20hearing 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
or 14 by a person appointed under paragraph 15, subsection (5) of
25that 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
30relation 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

35Notice 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) 40describing 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

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
55(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
10as 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
15relates 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
20copy 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
25on 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
30the 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) 35On 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
40interests 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
45confirming 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) Except 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
5Schedule, by regulations make such provision as to the procedure
on 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
10section 54B(5) are to be treated as part of the order.

(3) In 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
  15parish council or the parish meeting of a parish not having
  a separate parish council;

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

• “prescribed” means prescribed by regulations made by the
  20Secretary of State.

(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 25Highways 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) 30in 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”
35means—

(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
40communications 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
45the 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
5withdrawn), 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) 10If 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) 15the one comprising the parts to which the relevant
representations or objections relate; and

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

20and 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,
it would be relevant in determining whether or not to confirm the
order (either with or without modifications).

(2ZD) 25In deciding whether to exercise their power under subsection
(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
30representation or objection (and has not withdrawn it), of their
decision and the reasons for it.”

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

“(4) The Secretary of State may, but need not, act as mentioned in sub-
paragraph (2)(a) or (b) or (3)(b) in relation to an order relating to
35England if, in his 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 (either with or without modifications) or to make it.”

(5) In that paragraph, after sub-paragraph (4) (as inserted by sub-paragraph (4)
40of this paragraph) insert—

“(5) In the case of an order relating to England, the Secretary of State
may, instead of affording a person an opportunity of being heard
as mentioned in sub-paragraph (2)(b), (2A)(b) or (3)(b), afford the
person an opportunity of making representations (or further
45representations) to a person appointed by him for the purpose.

(6) Where the Secretary of State acts under sub-paragraph (5) by
affording a person an opportunity of making representations (or
further representations) instead of an opportunity of being heard