Housing and Planning Bill (HL Bill 110)

Counter-notice requiring authority to purchase additional land

15 A person who is able to sell the whole of the land (“the owner”)
may serve a counter-notice requiring the acquiring authority to
purchase the owner’s interest in the whole of the land.

16 5A counter-notice under this Part must be served within the period
of 28 days beginning with the day on which—

(a) the owner first had knowledge that the acquiring authority
had entered on and taken possession of the land, or

(b) if later, the owner receives any notice to treat.

10Acquiring authority must respond to counter-notice within 3 months

17 On receiving a counter-notice the acquiring authority must decide
whether to—

(a) accept the counter-notice, or

(b) refer the counter-notice to the Upper Tribunal.

18 15The authority must serve notice of their decision on the owner
within the period of 3 months beginning with the day on which
the counter-notice is served (“the decision period”).

19 If the authority decide to refer the counter-notice to the Upper
Tribunal they must do so within the decision period.

20 20If the authority do not serve notice of a decision within the
decision period they are to be treated as if they had served notice
of a decision to accept the counter-notice at the end of that period.

Effects of accepting counter-notice

21 (1) This paragraph applies where the acquiring authority serve notice
25of a decision to accept the counter-notice.

(2) The compulsory purchase order has effect as if it included the
owner’s interest in the additional land.

(3) If the acquiring authority have already served a notice to treat in
relation to the land proposed to be acquired, the notice has effect
30as if it also included the owner’s interest in the additional land.

(4) If the acquiring authority have not served a notice to treat, they
must serve a notice to treat in relation to the whole of the land.

Part 3 Determination by the Upper Tribunal

35Introduction

22 This Part applies where, in accordance with paragraph 8 or 19, the
acquiring authority refer a counter-notice to the Upper Tribunal.

23 In this Part “land proposed to be acquired” and “additional land”
have the meanings given by paragraph 2 or 14 as the case may be.

Role of the Upper Tribunal

24 (1) The Upper Tribunal must determine whether the severance of the
land proposed to be acquired would—

(a) in the case of a house, building or factory, cause material
5detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity
or convenience of the house to which the park or garden
belongs.

(2) In making its determination, the Upper Tribunal must take into
10account—

(a) the effect of the severance,

(b) the proposed use of the land proposed to be acquired, and

(c) if that land is proposed to be acquired for works or other
purposes extending to other land, the effect of the whole of
15the works and the use of the other land.

25 If the Upper Tribunal determines that the severance of the land
proposed to be acquired would have either of the consequences
described in paragraph 24(1) it must determine how much of the
additional land the acquiring authority ought to be required to
20take in addition to the land proposed to be acquired.

Effect of determination that more land should be acquired

26 (1) This paragraph applies where the Upper Tribunal determines that
the acquiring authority ought to be required to take the whole or
part of the additional land.

(2) 25The compulsory purchase order has effect as if it included the
owner’s interest in the additional land.

(3) If the acquiring authority have already served a notice to treat in
relation to the land proposed to be acquired, the notice has effect
as if it also included the owner’s interest in the additional land.

(4) 30If the acquiring authority have not served a notice to treat, they
must serve a notice to treat in relation to the land proposed to be
acquired and the additional land.

(5) If the acquiring authority have already entered on and taken
possession of the land proposed to be acquired, the power to
35award compensation under section 7 includes power to award
compensation for any loss suffered by the owner by reason of the
temporary severance of the land from the additional land.

(6) Where the Upper Tribunal determines that the acquiring authority
ought to be required to take part only of the additional land, a
40reference in sub-paragraph (2) to (5) to “the additional land” is to
that part.

Withdrawal of notice to treat following determination

27 (1) This paragraph applies where—

(a) the acquiring authority have served a notice to treat in
respect of the land proposed to be acquired,

(b) the Upper Tribunal has determined that the authority
ought to be required to take the whole or part of the
5additional land, and

(c) the authority have not yet entered on and taken possession
of any of the land proposed to be acquired or the
additional land.

(2) The acquiring authority may withdraw the notice to treat in
10respect of the whole of the land at any time within the period of 6
weeks beginning with the day on which the Upper Tribunal made
its determination.

(3) If the acquiring authority withdraws the notice to treat under this
paragraph they must pay the person on whom the notice was
15served compensation for any loss or expense caused by the giving
and withdrawal of the notice.

(4) Any dispute as to the compensation is to be determined by the
Upper Tribunal.””

Part 2 20Consequential amendments

Land Compensation Act 1961 (c. 33)

4 (1) Section 5A of the Land Compensation Act 1961 (relevant valuation date) is
amended as follows.

(2) After subsection (5) insert—

“(5A) 25If—

(a) the acquiring authority enters on and takes possession of
land in pursuance of a notice of entry given as mentioned in
paragraph 11 of Schedule 2A to the Compulsory Purchase
Act 1965 (“the original land”),

(b) 30the acquiring authority are subsequently required by a
determination under paragraph 25 of Schedule 2A to the
Compulsory Purchase Act 1965 to take additional land, and

(c) the acquiring authority enters on and takes possession of that
additional land,

35the authority is deemed for the purposes of subsection (3)(a) to have
entered on and taken possession of the additional land when it
entered on and took possession of the original land.””

(3) In subsection (6), for “subsection (5)” substitute “subsections (5) and (5A)”.

Land Compensation Act 1973 (c. 26)

5 40In section 58 of the Land Compensation Act 1973 (determination of material
detriment where part of house etc. subject to compulsory acquisition)—

(a) in subsection (1) omit “section 8(1) or 34(2) of the Compulsory
Purchase Act 1965, or”;

(b) omit subsection (2).

Provisions which refer to section 8(1)

6 For each of the following provisions substitute, with the same paragraph or
sub-paragraph number as the provision being replaced, the provision in
paragraph 7—

(a) 5paragraph 7 of Schedule 1 to the Local Government (Miscellaneous
Provisions) Act 1976;

(b) paragraph 23(2) of Schedule 28 to the Local Government, Planning
and Land Act 1980;

(c) paragraph 7 of Schedule 19 to the Highways Act 1980;

(d) 10paragraph 8 of Schedule 3 to the Gas Act 1986;

(e) paragraph 22 of Schedule 10 to the Housing Act 1988;

(f) paragraph 9 of Schedule 3 to the Electricity Act 1989;

(g) paragraph 4 of Schedule 9 to the Water Industry Act 1991;

(h) paragraph 4 of Schedule 18 to the Water Resources Act 1991;

(i) 15paragraph 4 of Schedule 1B to the Coal Industry Act 1994;

(j) paragraph 8 of Schedule 5 to the Postal Services Act 2000;

(k) paragraph 11 of Schedule 2 to the Housing and Regeneration Act
2008.

7 This is the provision to be substituted for the provisions listed in paragraph
206—

“[X] Section 8(1) of the Compulsory Purchase Act 1965 has effect as if
references to acquiring land were to acquiring a right in the land,
and Schedule 2A to that Act is to be read as if, for that Schedule,
there were substituted—

“25Schedule 2A Counter-notice requiring purchase of land

Introduction

1 (1) This Schedule applies where an acquiring authority serve a notice
to treat in respect of a right over part only of a house, building or
30factory.

(2) But see section 2A of the Acquisition of Land Act 1981 (under
which a compulsory purchase order can exclude from this
Schedule land that is 9 metres or more below the surface).

2 In this Schedule—

• 35“additional land” means the part of the house, building or
  factory over which a right is not proposed to be acquired
  in the notice to treat;

• “house” includes any park or garden belonging to a house;

• “land in the notice to treat” means the part of the house,
  40building or factory over which a right is proposed to be
  acquired;

• “whole of the land” means the additional land and the land
  in the notice to treat.

Counter-notice requiring purchase of land

3 A person who is able to sell the whole of the land (“the owner”)
may serve a counter-notice requiring the authority to purchase the
owner’s interest in the whole of the land.

4 5A counter-notice under paragraph 3 must be served within the
period of 28 days beginning with the day on which the notice to
treat was served.

Response to counter-notice

5 On receiving a counter-notice the acquiring authority must decide
10whether to—

(a) withdraw the notice to treat,

(b) accept the counter-notice, or

(c) refer the counter-notice to the Upper Tribunal.

6 The authority must serve notice of their decision on the owner
15within the period of 3 months beginning with the day on which
the counter-notice is served (“the decision period”).

7 If the authority decide to refer the counter-notice to the Upper
Tribunal they must do so within the decision period.

8 If the authority do not serve notice of a decision within the
20decision period they are to be treated as if they had served notice
of a decision to withdraw the notice to treat at the end of that
period.

9 If the authority serve notice of a decision to accept the counter-
notice, the compulsory purchase order and the notice to treat are
25to have effect as if they included the owner’s interest in the whole
of the land.

Determination by Upper Tribunal

10 On a referral under paragraph 7 the Upper Tribunal must
determine whether the acquisition of the right would—

(a) 30in the case of a house, building or factory, cause material
detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity
or convenience of the house to which the park or garden
belongs.

11 35In making its determination, the Upper Tribunal must take into
account—

(a) the effect of the acquisition of the right,

(b) the proposed use of the right, and

(c) if the right is proposed to be acquired for works or other
40purposes extending to other land, the effect of the whole of
the works and the use of the other land.

12 If the Upper Tribunal determines that the acquisition of the right
would have either of the consequences described in paragraph 10

it must determine how much of the land to which the counter-
notice relates the authority ought to be required to take.

13 If the Upper Tribunal determines that the authority ought to be
required to take some or all of the land the compulsory purchase
5order and the notice to treat are to have effect as if they included
the owner’s interest in that land.

14 (1) If the Upper Tribunal determines that the authority ought to be
required to take some or all of the land, the authority may at any
time within the period of 6 weeks beginning with the day on
10which the Upper Tribunal makes its determination withdraw the
notice to treat in relation to the whole of the land.

(2) If the acquiring authority withdraws the notice to treat under this
paragraph they must pay the person on whom the notice was
served compensation for any loss or expense caused by the giving
15and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the
Upper Tribunal.”””

New Towns Act 1981 (c. 64)

8 In Part 1 of Schedule 6 to the New Towns Act 1981 (modifications of the
20Compulsory Purchase Act 1965 for the purposes of the New Towns Act
1981), in paragraph 1(2)—

(a) at the end of paragraph (e) omit “and”, and

(b) at the end of paragraph (f) insert “;

(g) in Schedule 2A to that Act references to section 11
25or 11A of that Act are to be read respectively as
references to paragraph 4 or 4A of this Schedule.””

Acquisition of Land Act 1981 (c. 67)

9 In the Acquisition of Land Act 1981, after section 2 insert—

“2A Tunnels etc

(1) 30A compulsory purchase order may provide that in the following
provisions, a reference to land (however expressed) does not include
specified land that is at least 9 metres or more below the surface.

(2) The provisions mentioned in subsection (1) are—

(a) Schedule 2A of the Compulsory Purchase Act 1965 (objection
35to division of land),

(b) any substituted version of that Schedule that applies by
virtue of provision made by or under any Act, and

(c) Schedule 1 to the Compulsory Purchase (Vesting
Declarations) Act 1981 (objection to division of land).””

40Water Industry Act 1991 (c. 56)

10 In Schedule 11 to the Water Industry Act 1991 (orders conferring
compulsory works powers), in paragraph 6(1)(b), for “section” substitute
“sections 2A and”.

Water Resources Act 1991 (c. 57)

11 In Schedule 19 to the Water Resources Act 1991 (orders conferring
compulsory works powers), in paragraph 6(1)(b), for “section” substitute
“sections 2A and”.

Section 176

5SCHEDULE 18 Objection to division of land following vesting declaration

Part 1 Amendments to Compulsory Purchase (Vesting Declarations) Act 1981

1 The Compulsory Purchase (Vesting Declarations) Act 1981 is amended as
10follows.

2 In section 4 (execution of declaration), for subsection (3), substitute—

“(3) For the purposes of this Act the “vesting date” in relation to any land
that is actually specified in a general vesting declaration is—

(a) the first day after the end of the period specified in the
15declaration in accordance with subsection (1) above, or

(b) if a counter-notice is served under paragraph 2 of Schedule 1
within that period in relation to land, the day determined as
the vesting date for the land in accordance with that
Schedule.

(4) 20For the purposes of this Act, the “vesting date” for any land that is
deemed to have been specified in a general vesting declaration by
Schedule 1 is the day determined as the vesting date for the land in
accordance with that Schedule.””

3 In section 7 (constructive notice to treat), in subsection (1), for paragraphs (a)
25and (b) substitute—

“(a) the Land Compensation Act 1961 (as modified by section 4 of
the Acquisition of Land Act 1981),

(b) the Compulsory Purchase Act 1965, and

(c) Schedule 1 to this Act,”.”

4 30In section 8 (vesting and the right to enter on and take possession), in
subsection (1), for the words before paragraph (a) substitute “Any land
specified in the general vesting declaration, together with the right to enter
upon and take possession of it, shall, subject to section 9 below, vest in the
acquiring authority on the vesting date in relation to that land as if—”.

5 For Schedule 1 substitute—

Section 12

““Schedule 1 Counter-notice requiring purchase of land not in general vesting
declaration

Part 1 5Counter-notice requiring purchase of additional land

1 (1) This Schedule applies where an acquiring authority have executed
a general vesting declaration in respect of part only of a house,
building or factory.

(2) But see section 2A of the Acquisition of Land Act 1981 (under
10which a compulsory purchase order can exclude from this
Schedule land that is 9 metres or more below the surface).

2 A person able to sell the whole of the house, building or factory
(“the owner”) may serve a counter-notice requiring the authority
to purchase the owner’s interest in the whole.

3 15A counter-notice under paragraph 2 must be served before the end
of the period of 28 days beginning with the day the owner first had
knowledge of the general vesting declaration.

4 In a case where this Schedule applies by virtue of a general vesting
declaration executed after a counter-notice has been served under
20paragraph 3 or 15 of Schedule 2A to the Compulsory Purchase Act
1965, that counter-notice is to have effect as a counter-notice
served under this Schedule.

5 In this Schedule—

• “additional land” means the part of the house, building or
  25factory not specified in the general vesting declaration;

• “house” includes any park or garden belonging to a house;

• “land proposed to be acquired” means the part of the house,
  building or factory specified in the general vesting
  declaration;

• 30“original vesting date” is the first day after the end of the
  period specified in the general vesting declaration in
  accordance with section 4(1).

Part 2 Consequences of counter-notice

35Acquiring authority must respond to counter-notice within three months

6 (1) On receiving a counter-notice the acquiring authority must decide
whether to—

(a) withdraw the notice to treat in relation to the land
proposed to be acquired,

(b) 40accept the counter-notice, or

(c) refer the counter-notice to the Upper Tribunal.

(2) But the acquiring authority may not decide to withdraw the notice
to treat if the counter-notice was served on or after the original
vesting date.

7 The authority must serve notice of their decision on the owner
5within the period of 3 months beginning with the day on which
the counter-notice is served (“the decision period”).

8 If the authority decide to refer the counter-notice to the Upper
Tribunal they must do so within the decision period.

9 (1) This paragraph applies if the acquiring authority do not serve
10notice of a decision within the decision period.

(2) If the counter-notice was served before the original vesting date,
the authority are to be treated as if they had served notice of a
decision to withdraw the notice to treat in relation to the land
proposed to be acquired.

(3) 15if the counter-notice was served on or after the original vesting
date, they are to be treated as if they had served notice of a
decision to accept it.

No vesting if notice to treat withdrawn

10 If the acquiring authority serve notice of a decision to withdraw
20the notice to treat in relation to the land proposed to be acquired
the general vesting declaration is to have effect as if it did not
include that land.

Effects of accepting counter-notice

11 (1) This paragraph applies where the acquiring authority serve notice
25of a decision to accept the counter-notice.

(2) The general vesting declaration and the notice to treat (and, where
applicable, the compulsory purchase order) are to have effect as if
they included the owner’s interest in the additional land as well as
in the land proposed to be acquired.

(3) 30The authority must serve on the owner a notice specifying the
vesting date or dates for—

(a) the land proposed to be acquired (if the counter-notice was
served before the original vesting date), and

(b) the additional land.

(4) 35The new vesting date for the land proposed to be acquired must
not be before the original vesting date.

(5) The vesting date for the additional land must be after the period of
28 days beginning with the day on which the notice under sub-
paragraph (3) is served.

40Effects of referring counter-notice to the Upper Tribunal

12 (1) This paragraph applies where—

(a) the acquiring authority refer the counter-notice to the
Upper Tribunal, and

(b) the counter-notice was served before the original vesting
date.

(2) At any time before the Upper Tribunal make a determination
under paragraph 14, the acquiring authority may serve notice on
5the owner specifying a new vesting date for the land proposed to
be acquired.

(3) The new vesting date for the land proposed to be acquired must
not be before the original vesting date.

Part 3 10Determination by the Upper Tribunal

Introduction

13 This Part applies where, in accordance with paragraph 8, the
acquiring authority refer a counter-notice to the Upper Tribunal.

Role of the Upper Tribunal

14 (1) 15The Upper Tribunal must determine whether the severance of the
land proposed to be acquired would—

(a) in the case of a house, building or factory, cause material
detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity
20or convenience of the house to which the park or garden
belongs.

(2) In making its determination, the Upper Tribunal must take into
account—

(a) the effect of the severance,

(b) 25the proposed use of the land proposed to be acquired, and

(c) if that land is proposed to be acquired for works or other
purposes extending to other land, the effect of the whole of
the works and the use of the other land.

15 If the Upper Tribunal determines that the severance of the land
30proposed to be acquired would have either of the consequences
described in paragraph 14(1) it must determine how much of the
additional land the acquiring authority ought to be required to
take in addition to the land proposed to be acquired.

Effect of determination that more land should be acquired

16 (1) 35This paragraph applies where the Upper Tribunal determines that
the acquiring authority ought to be required to take the whole or
part of the additional land.

(2) The general vesting declaration and any notice to treat (and,
where applicable, the compulsory purchase order) are to have
40effect as if they included the owner’s interest in that additional
land.

(3) The Upper Tribunal must order a vesting date for—