Housing and Planning Bill (HL Bill 117)

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(a) withdraw the notice to treat,

(b) accept the counter-notice, or

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

8 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”).

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

10 If the authority do not serve notice of a decision within the
10decision 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.

Effects of accepting counter-notice or referring it to the Upper Tribunal

11 If the acquiring authority serve notice of a decision to accept the
15counter-notice—

(a) the compulsory purchase order and the notice to treat are
to have effect as if they included the owner’s interest in the
whole of the land, and

(b) the authority may serve a notice of entry under section
2011(1) in relation to the whole of the land.

12 If the acquiring authority serve notice of a decision to refer the
counter-notice to the Upper Tribunal, the acquiring authority may
serve a notice of entry under section 11(1) on the owner in relation
to the land proposed to be acquired.

13 25If the authority have already served one or more notices of entry
under section 11(1) in respect of the land proposed to be acquired
the period specified in any new notice of entry in relation to that
land must be a period that ends no earlier than the end of the
period in the most recent notice of entry.

30Part 2 Counter-notice where authority has taken possession
Introduction

14 (1) This Part applies where an acquiring authority—

(a) have entered on and taken possession of part only of a
35house, building or factory;

(b) did not enter on and take possession of the land in
accordance with section 11(1), whether because they had
not served a notice to treat or otherwise, and

(c) have not executed a general vesting declaration under
40section 4 of the Compulsory Purchase (Vesting
Declarations) Act 1981 in respect of the land which they
have entered on and taken possession of.

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(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).

15 This Part does not apply if the acquiring authority are deemed to
5have served a notice to treat in respect of the land proposed to be
acquired under section 154(5) of the Town and Country Planning
Act 1990 (deemed notice to treat in relation to blighted land).

16 In this Part—

  • “additional land” means the part of the house, building, or
    10factory that the authority have not entered on and taken
    possession of;

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

  • “land proposed to be acquired” means the part of the house,
    building or factory that the authority entered on and took
    15possession of otherwise than in accordance with section
    11(1);

  • “whole of the land” means the land proposed to be acquired
    and the additional land.

Counter-notice requiring authority to purchase additional land

17 20A 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.

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

(a) 25the 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.

Acquiring authority must respond to counter-notice within 3 months

19 On receiving a counter-notice the acquiring authority must decide
30whether to—

(a) accept the counter-notice, or

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

20 The authority must serve notice of their decision on the owner
within the period of 3 months beginning with the day on which
35the counter-notice is served (“the decision period”).

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

22 If the authority do not serve notice of a decision within the
decision period they are to be treated as if they had served notice
40of a decision to accept the counter-notice at the end of that period.

Effects of accepting counter-notice

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

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(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
5as 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 owner’s interest in the
whole of the land.

Part 3 10Determination by the Upper Tribunal
Introduction

24 This Part applies where, in accordance with paragraph 9 or 21, the
acquiring authority refer a counter-notice to the Upper Tribunal.

25 In this Part “land proposed to be acquired” and “additional land”
15have the meanings given by paragraph 3 or 16 as the case may be.

Role of the Upper Tribunal

26 (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
20detriment 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
25account—

(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
30the works and the use of the other land.

27 If the Upper Tribunal determines that the severance of the land
proposed to be acquired would have either of the consequences
described in paragraph 26(1) it must determine how much of the
additional land the acquiring authority ought to be required to
35take in addition to the land proposed to be acquired.

Effect of determination that more land should be acquired

28 (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) 40The compulsory purchase order has effect as if it included the
owner’s interest in the additional land.

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(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) If the acquiring authority have not served a notice to treat, they
5must serve a notice to treat in relation to the owner’s interest in 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
award compensation under section 7 includes power to award
10compensation 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
reference in sub-paragraph (2) to (5) to “the additional land” is to
15that part.

Withdrawal of notice to treat following determination

29 (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) 20the Upper Tribunal has determined that the authority
ought to be required to take the whole or part of the
additional land, and

(c) the authority have not yet entered on and taken possession
of any of the land proposed to be acquired or the
25additional land.

(2) The acquiring authority may withdraw the notice to treat in
respect 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) 30If 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
and withdrawal of the notice.

(4) Any dispute as to the compensation is to be determined by the
35Upper Tribunal.”

Part 2 Consequential amendments

Land Compensation Act 1961 (c. 33)Land Compensation Act 1961 (c. 33)

4 (1) Section 5A of the Land Compensation Act 1961 (relevant valuation date) is
40amended as follows.

(2) After subsection (5) insert—

(5A) If—

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(a) the acquiring authority enters on and takes possession of
land in pursuance of a notice of entry given as mentioned in
paragraph 12 of Schedule 2A to the Compulsory Purchase
Act 1965 (“the original land”),

(b) 5the acquiring authority are subsequently required by a
determination under paragraph 27 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,

10the 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) also applies” substitute “Subsections
(5), (5A) and (5B) also apply”.

15Land Compensation Act 1973 (c. 26)Land Compensation Act 1973 (c. 26)

5 In 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) 20omit 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) 25paragraph 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) 30paragraph 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) 35paragraph 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
406—

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,

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there were substituted—

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

1 (1) This Schedule applies where an acquiring authority serve a notice
5to treat in respect of a right over the whole or part of a house,
building or factory.

(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 10In this Schedule “house” includes any park or garden belonging to
a house.

Counter-notice requiring purchase of land

3 A person who is able to sell the house, building or factory (“the
owner”) may serve a counter-notice requiring the authority to
15purchase the owner’s interest in the house, building or factory.

4 A 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 20On receiving a counter-notice the acquiring authority must decide
whether to—

(a) withdraw the notice to treat,

(b) accept the counter-notice, or

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

6 25The 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”).

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

8 30If 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 withdraw the notice to treat at the end of that
period.

9 If the authority serve notice of a decision to accept the counter-
35notice, the compulsory purchase order and the notice to treat are
to have effect as if they included the owner’s interest in the house,
building or factory.

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Determination by Upper Tribunal

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

11 In making its determination, the Upper Tribunal must take into
10account—

(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
purposes extending to other land, the effect of the whole of
15the 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 house, building or factory the
authority ought to be required to take.

13 20If the Upper Tribunal determines that the authority ought to be
required to take some or all of the house, building or factory the
compulsory purchase order 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
25required to take some or all of the house, building or factory, the
authority may at any time within the period of 6 weeks beginning
with the day on which the Upper Tribunal makes its
determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this
30paragraph they must pay the person on whom the notice was
served compensation for any loss or expense caused by the giving
and withdrawal of the notice.

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

35New Towns Act 1981 (c. 64)New Towns Act 1981 (c. 64)

8 In Part 1 of Schedule 6 to the New Towns Act 1981 (modifications of the
Compulsory 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) 40at the end of paragraph (f) insert ;

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

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Acquisition of Land Act 1981 (c. 67)Acquisition of Land Act 1981 (c. 67)

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

2A Tunnels etc

(1) A compulsory purchase order may provide that in the following
5provisions, 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
to division of land),

(b) 10any substituted version of that Schedule that applies by
virtue of provision made by or under any Act, and

(c) Schedule A1 to the Compulsory Purchase (Vesting
Declarations) Act 1981 (objection to division of land).”

Water Industry Act 1991 (c. 56)Water Industry Act 1991 (c. 56)

10 15In 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)Water Resources Act 1991 (c. 57)

11 In Schedule 19 to the Water Resources Act 1991 (orders conferring
20compulsory works powers), in paragraph 6(1)(b), for “section” substitute
“sections 2A and”.

Section 199

SCHEDULE 18 Objection to division of land following vesting declaration

Part 1 25Amendments to Compulsory Purchase (Vesting Declarations) Act 1981

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

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
30that is actually specified in a general vesting declaration is—

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

(b) if a counter-notice is served under paragraph 2 of Schedule
A1 within that period in relation to land, the day determined
35as the vesting date for the land in accordance with that
Schedule.

(4) For the purposes of this Act, the “vesting date” for any land that is
deemed to have been specified in a general vesting declaration by

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Schedule A1 is the day determined as the vesting date for the land in
accordance with that Schedule.”

3 In section 7 (constructive notice to treat), for subsection (1) substitute—

(1) On the vesting date the provisions of—

(a) 5the 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 A1 to this Act,

shall apply as if, on the date on which the general vesting declaration
10was executed, a notice to treat had been served on every person on
whom, under section 5 of the Compulsory Purchase Act 1965, the
acquiring authority could have served such a notice, other than any
person entitled to a minor tenancy or a long tenancy which is about
to expire.”

4 15In 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 20In section 12 (divided land), for “Schedule 1” substitute “Schedules A1 and
1”.

6 Before Schedule 1 insert—

Section 12

“Schedule A1 Counter-notice requiring purchase of land not in general vesting
declaration

25Part 1 Counter-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) 30But 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 A person able to sell the whole of the house, building or factory
(“the owner”) may serve a counter-notice requiring the authority
35to purchase the owner’s interest in the whole.

3 A 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
40declaration executed after a counter-notice has been served under
paragraph 4 or 17 of Schedule 2A to the Compulsory Purchase Act
1965, that counter-notice is to have effect as a counter-notice
served under this Schedule.

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5 In this Schedule—

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

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

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

  • “notice to treat” means a notice to treat deemed to have been
    served under section 7(1);

  • 10“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
15Acquiring 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) 20accept 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 25The 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”).

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

9 (1) 30This paragraph applies if the acquiring authority do not serve
notice 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
35proposed to be acquired.

(3) if 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 40If the acquiring authority serve notice of a decision to withdraw
the 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.