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SCHEDULE 2 |
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EXCEPTED LAND, NON-CONFORMING LAND AND PROCEDURES FOR MAKING ORDERS AND DECLARATIONS |
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PART I |
| Evidential requirements |
| 1. Upon determining an application for a declaration as provided for in section 3 and in this Schedule it should be presumed unless the contrary is shown that the land is excepted land. |
| 2. In an application for a declaration under section 4 of this Act, the applicant shall show that the land is not open country. |
| 3. Where any land has been determined by the authority to be excepted land or non-conforming land (as the case may be) then at any time thereafter any person may apply to the authority requesting the authority to consider whether the land remains excepted land or non-conforming land and if the authority determine that the land no longer complies with the definition or description contained in this Act the authority shall revoke its determination whereupon Part II of this Schedule shall take effect as to the making of or objection to and determination and coming into force of such revocation. |
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PART II |
| Procedure for making an application for an exception order or a declaration under section 3 or 4 |
| Coming into operation |
| 4. An order or declaration shall not take effect until confirmed either by the authority or the Secretary of State under paragraph 6 or by the Secretary of State under paragraph 7. |
| Publicity for orders or declarations |
| 5. - (1) On applying for an order or declaration, a landowner or occupier shall give notice in the prescribed form- |
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(a) describing the general effect of the application and stating that it has been made and requires confirmation; |
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(b) naming a place in the area in which the land to which the application relates is situated where a copy of the order or declaration may be inspected free of charge, at all reasonable hours; and |
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(c) specifying the time (not being less than 42 days from the date of the first publication of the notice) within which, and in the manner in which, representations or objections with respect to the order or declaration may be made. |
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(2) Subject to sub-paragraph (4), the notice to be given under sub-paragraph (1) shall be given- |
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(a) by publication in at least one local newspaper circulating in the area in which the land to which the order or declaration relates is situated; |
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(b) by serving a like notice on- |
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(i) every local authority whose area includes any of that land;
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(ii) unless the applicant is the owner or occupier of the whole of the land to which the application relates, the owner or occupier of every part of such land;
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(iii) every person on whom notice is required to be served in pursuance of sub-paragraph (3); and
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(iv) such other persons as may be prescribed in relation to the area in which the land is situated or as the authority may consider appropriate; and
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(c) by causing a copy of the notice to be displayed in a prominent position- |
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(i) at the place where any public highway enters the land;
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(ii) at such places on the boundary of the land as the authority may consider appropriate;
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(iii) at council offices in the locality of the land to which the order or declaration relates; and
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(iv) at such other places (being places not adjacent to the land) as the authority may consider appropriate.
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Provided that, if after reasonable inquiry has been made, the applicant is satisfied that it is not practicable to ascertain the name or address of an owner or occupier of land to which the application relates then upon application by him to the authority the authority may direct that the notice required to be served on such owner or occupier by sub-paragraph (b)(ii) may be served by addressing it to him by the description "owner/occupier" of the land (describing it) and by affixing it to some conspicuous object or objects on the land |
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(3) Any person may, on payment of such reasonable charge as the authority may consider appropriate, require an authority to give him notice of all such applications which are made to the authority during a specified period, and relate to land comprised in a specified area; and in this sub-paragraph "specified" means specified in the requirement. |
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(4) Sub-paragraphs (2)(b) and (c) shall be complied with not less than 42 days before the expiration of the time specified in the notice. |
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(5) A notice required to be served by sub-paragraph (2)(b) shall be accompanied by a copy of the order. |
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(6) A notice required to be displayed or served by sub-paragraphs (2)(b) or (c) shall be accompanied by a plan showing the area of the land to which the order relates. |
| Unopposed orders |
| 6. - (1) If no representations or objections are duly made, or if any so made are withdrawn, the authority may- |
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(a) confirm the order or declaration without modification; or |
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(b) if they require any modification to be made, submit the order or declaration to the Secretary of State for confirmation by him. |
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(2) Where an order or declaration is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State may confirm the order or declaration with or without modifications. |
| Opposed orders |
| 7. - (1) If any representation or objection duly made is not withdrawn the authority shall submit the order or declaration to the Secretary of State for confirmation by him. |
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(2) Where an order or declaration is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State shall either- |
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(a) cause a local inquiry to be held; or |
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(b) afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose. |
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(3) On considering any representations or objections duly made and the report of the person appointed to hold the inquiry or hear representations or objections, the Secretary of State may confirm the order or declaration with or without modifications. |
| Local inquiries |
| 8. The provisions of subsections (2) to (5) of section 250 of the Local Government Act 1972 (which relate to the giving of evidence at, and defraying the cost of, local inquiries) shall apply in relation to any inquiry held under paragraph 7 as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section. |
| Appointment of inspectors etc. |
| 9. - (1) A decision of the Secretary of State under paragraphs 6 or 7 shall, 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 of State for the purpose instead of by the Secretary of State; and a decision made by a person so appointed shall be treated as a decision of the Secretary of State. |
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(2) The Secretary of State may, if he thinks fit, direct that a decision which, by virtue of sub-paragraph (1) above and apart form this sub-paragraph, falls to be made by a person appointed by the Secretary of State shall instead be made by the Secretary of State; and a direction under this sub-paragraph shall state the reasons for which it is given and shall 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. |
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(3) Where the Secretary of State has appointed a person to make a decision under paragraph 7 or 9, 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. |
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(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 instead of the person first appointed to make it anything done by or in relation to the latter shall be treated as having been done by or in relation to the former. |
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(5) Regulations under this paragraph may provide for the giving of publicity to any directions given by the Secretary of State under this paragraph. |
| Notice of final decisions on orders |
| 10. - (1) As soon as practicable after a decision to confirm an order or declaration is made or, in the case of a decision by the Secretary of State, as soon as possible after receiving notice of his decision, the authority shall give notice- |
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(a) describing the general effect of the order or declaration as confirmed and stating that it has been confirmed (with or without modification) and the date on which it took effect; and |
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(b) naming a place in the area in which the land to which the order or declaration relates is situated where a copy of the order or declaration as confirmed may be inspected free of charge, and copies thereof may be obtained at a reasonable charge, at all reasonable hours. |
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(2) A notice under sub-paragraph (1) shall be given- |
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(a) by publication in the manner required by paragraph 5(2)(a); |
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(b) by serving a like notice on all persons on whom notices were required to be served under paragraph 5(2)(b); and |
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(c) by causing like notices to be displayed in the like manner as the notices required to be displayed under paragraph 5(2)(c). |
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(3) 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 decision, the authority shall give notice of the decision by serving a copy of it on any persons on whom notices were required to be served under paragraph 5(2)(b). |
| Proceedings for questioning validity of orders |
| 11. - (1) If any person is aggrieved by an order or declaration which has taken effect and desires to question its validity on the ground that it is not within the powers of this Act or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 10 make an application to the High Court under this paragraph. |
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(2) On any such application the High Court may, if satisfied that the order or declaration 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 declaration, or any provision of the order or declaration, either generally or in so far as it affects the interests of the applicant. |
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(3) Except as provided by this paragraph, the validity of any order or declaration shall not be questioned in any legal proceedings whatsoever. |
| Supplemental |
| 12. - (1) The Secretary of State may, subject to the provisions of this Schedule, by regulations make such provision as to the procedure on the making, submission and confirmation of orders as appears to him to be expedient. |
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(2) In this Schedule- |
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"council offices" means offices or buildings acquired or provided by the authority; |
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"declaration" means a declaration to which the provisions of this Schedule apply; |
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"order" means an order to which the provisions of this Schedule apply; |
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"prescribed" means prescribed by regulations made by the Secretary of State. |
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(3) Regulations under this Schedule shall be by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. |