|
|
|
|
| withdraws his appeal, the operative date of the notice shall be the date on |
|
| which the appeal is withdrawn. |
|
| (7) | In any case falling within subsection (5) or (6), the compliance period for |
|
| the notice shall accordingly run from the date which is its operative date by |
|
| virtue of that subsection (and any period which may have started to run |
|
| from a date preceding that on which the appeal was made shall accordingly |
|
| |
51 | Insert the following new Clause— |
|
| “Powers of entry for the purposes of complaints and appeals |
|
| (1) | Where, under this Part, a complaint has been made or a remedial notice has |
|
| been issued, a person authorised by the relevant authority may enter the |
|
| neighbouring land in order to obtain information required by the relevant |
|
| authority for the purpose of determining— |
|
| (a) | whether this Part applies to the complaint; |
|
| (b) | whether to issue or withdraw a remedial notice; |
|
| (c) | whether to waive or relax a requirement of a remedial notice; |
|
| (d) | whether a requirement of a remedial notice has been complied |
|
| |
| (2) | Where an appeal has been made under section (Appeals against remedial |
|
| notices and other decisions of relevant authorities), a person authorised— |
|
| (a) | by the appeal authority, or |
|
| (b) | by a person appointed to determine appeals on its behalf, |
|
| | may enter the neighbouring land in order to obtain information required |
|
| by the appeal authority, or by the person so appointed, for the purpose of |
|
| determining an appeal under this Part. |
|
| (3) | A person shall not enter land in the exercise of a power conferred by this |
|
| section unless at least 24 hours’ notice of the intended entry has been given |
|
| to every occupier of the land. |
|
| (4) | A person authorised under this section to enter land— |
|
| (a) | shall, if so required, produce evidence of his authority before |
|
| |
| (b) | shall produce such evidence if required to do so at any time while |
|
| |
| (5) | A person who enters land in the exercise of a power conferred by this |
|
| |
| (a) | take with him such other persons as may be necessary; |
|
| (b) | take with him equipment and materials needed in order to obtain |
|
| the information required; |
|
| (c) | take samples of any trees or shrubs that appear to him to form part |
|
| |
| (6) | If, in the exercise of a power conferred by this section, a person enters land |
|
| which is unoccupied or from which all of the persons occupying the land |
|
|
|
|
|
| are temporarily absent, he must on his departure leave it as effectively |
|
| secured against unauthorised entry as he found it. |
|
| (7) | A person who intentionally obstructs a person acting in the exercise of the |
|
| powers under this section is guilty of an offence and shall be liable, on |
|
| summary conviction, to a fine not exceeding level 3 on the standard scale.” |
|
52 | Insert the following new Clause— |
|
| |
| |
| (a) | a remedial notice requires the taking of any action; and |
|
| (b) | that action is not taken in accordance with that notice within the |
|
| compliance period or (as the case may be) by the subsequent time |
|
| by which it is required to be taken, |
|
| | every person who, at a relevant time, is an owner or occupier of the |
|
| neighbouring land is guilty of an offence and shall be liable, on summary |
|
| conviction, to a fine not exceeding level 3 on the standard scale. |
|
| (2) | In subsection (1) “relevant time”— |
|
| (a) | in relation to action required to be taken before the end of the |
|
| compliance period, means a time after the end of that period and |
|
| before the action is taken; and |
|
| (b) | in relation to any preventative action which is required to be taken |
|
| after the end of that period, means a time after that at which the |
|
| action is required to be taken but before it is taken. |
|
| (3) | In proceedings against a person for an offence under subsection (1) it shall |
|
| be a defence for him to show that he did everything he could be expected |
|
| to do to secure compliance with the notice. |
|
| (4) | In any such proceedings against a person, it shall also be a defence for him |
|
| to show, in a case in which he— |
|
| (a) | is not a person to whom a copy of the remedial notice was sent in |
|
| accordance with a provision of this Part, and |
|
| (b) | is not assumed under subsection (5) to have had knowledge of the |
|
| notice at the time of the alleged offence, |
|
| | that he was not aware of the existence of the notice at that time. |
|
| (5) | A person shall be assumed to have had knowledge of a remedial notice at |
|
| any time if at that time— |
|
| (a) | he was an owner of the neighbouring land; and |
|
| (b) | the notice was at that time registered as a local land charge. |
|
| (6) | Section 198 of the Law of Property Act 1925 (c. 20) (constructive notice) |
|
| shall be disregarded for the purposes of this section. |
|
| (7) | Where a person is convicted of an offence under subsection (1) and it |
|
| |
| (a) | that a failure to comply with the remedial notice is continuing, and |
|
| (b) | that it is within that person’s power to secure compliance with the |
|
| |
|
|
|
|
| | the court may, in addition to or instead of imposing a punishment, order |
|
| him to take the steps specified in the order for securing compliance with the |
|
| |
| (8) | An order under subsection (7) must require those steps to be taken within |
|
| such reasonable period as may be fixed by the order. |
|
| (9) | Where a person fails without reasonable excuse to comply with an order |
|
| under subsection (7) he is guilty of an offence and shall be liable, on |
|
| summary conviction, to a fine not exceeding level 3 on the standard scale. |
|
| (10) | Where a person continues after conviction of an offence under subsection |
|
| (9) (or of an offence under this subsection) to fail, without reasonable |
|
| excuse, to take steps which he has been ordered to take under subsection |
|
| (7), he is guilty of a further offence and shall be liable, on summary |
|
| conviction, to a fine not exceeding one-twentieth of that level for each day |
|
| on which the failure has so continued.” |
|
53 | Insert the following new Clause— |
|
| “Power to require occupier to permit action to be taken by owner |
|
| Section 289 of the Public Health Act 1936 (c. 49) (power of court to require |
|
| occupier to permit work to be done by owner) shall apply with any |
|
| necessary modifications for the purpose of giving an owner of land to |
|
| which a remedial notice relates the right, as against all other persons |
|
| interested in the land, to comply with the notice.” |
|
54 | Insert the following new Clause— |
|
| “Action by relevant authority |
|
| (1) | This section applies where— |
|
| (a) | a remedial notice requires the taking of any action; and |
|
| (b) | that action is not taken in accordance with that notice within the |
|
| compliance period or (as the case may be) after the end of that |
|
| period when it is required to be taken by the notice. |
|
| (2) | Where this section applies— |
|
| (a) | a person authorised by the relevant authority may enter the |
|
| neighbouring land and take the required action; and |
|
| (b) | the relevant authority may recover any expenses reasonably |
|
| incurred by that person in doing so from any person who is an |
|
| owner or occupier of the land. |
|
| (3) | Expenses recoverable under this section shall be a local land charge and |
|
| binding on successive owners of the land and on successive occupiers of it. |
|
| (4) | Where expenses are recoverable under this section from two or more |
|
| persons, those persons shall be jointly and severally liable for the expenses. |
|
| (5) | A person shall not enter land in the exercise of a power conferred by this |
|
| section unless at least 7 days’ notice of the intended entry has been given |
|
| to every occupier of the land. |
|
| (6) | A person authorised under this section to enter land— |
|
| (a) | shall, if so required, produce evidence of his authority before |
|
| |
|
|
|
|
| (b) | shall produce such evidence if required to do so at any time while |
|
| |
| (7) | A person who enters land in the exercise of a power conferred by this |
|
| |
| (a) | use a vehicle to enter the land; |
|
| (b) | take with him such other persons as may be necessary; |
|
| (c) | take with him equipment and materials needed for the purpose of |
|
| taking the required action. |
|
| (8) | If, in the exercise of a power conferred by this section, a person enters land |
|
| which is unoccupied or from which all of the persons occupying the land |
|
| are temporarily absent, he must on his departure leave it as effectively |
|
| secured against unauthorised entry as he found it. |
|
| (9) | A person who wilfully obstructs a person acting in the exercise of powers |
|
| under this section to enter land and take action on that land is guilty of an |
|
| offence and shall be liable, on summary conviction, to a fine not exceeding |
|
| level 3 on the standard scale.” |
|
55 | Insert the following new Clause— |
|
| “Offences committed by bodies corporate |
|
| (1) | Where an offence under this Part committed by a body corporate is proved |
|
| to have been committed with the consent or connivance of, or to be |
|
| attributable to any neglect on the part of— |
|
| (a) | a director, manager, secretary or other similar officer of the body |
|
| |
| (b) | any person who was purporting to act in any such capacity, |
|
| | he, as well as the body corporate, shall be guilty of that offence and be liable |
|
| to be proceeded against and punished accordingly. |
|
| (2) | Where the affairs of a body corporate are managed by its members, |
|
| subsection (1) applies in relation to the acts and defaults of a member in |
|
| connection with his functions of management as if he were a director of the |
|
| |
56 | Insert the following new Clause— |
|
| |
| (1) | A notification or other document required to be given or sent to a person |
|
| by virtue of this Part shall be taken to be duly given or sent to him if served |
|
| in accordance with the following provisions of this section. |
|
| (2) | Such a document may be served— |
|
| (a) | by delivering it to the person in question; |
|
| (b) | by leaving it at his proper address; or |
|
| (c) | by sending it by post to him at that address. |
|
| |
| (a) | in the case of a body corporate, be served on the secretary or clerk |
|
| |
| (b) | in the case of a partnership, be served on a partner or a person |
|
| having the control or management of the partnership business. |
|
|
|
|
|
| (4) | For the purposes of this section and of section 7 of the Interpretation Act |
|
| 1978 (c. 30) (service of documents by post) in its application to this section, |
|
| a person’s proper address shall be his last known address, except that— |
|
| (a) | in the case of a body corporate or their secretary or clerk, it shall be |
|
| the address of the registered or principal office of that body; and |
|
| (b) | in the case of a partnership or person having the control or the |
|
| management of the partnership business, it shall be the principal |
|
| office of the partnership. |
|
| (5) | For the purposes of subsection (4) the principal office of— |
|
| (a) | a company registered outside the United Kingdom, or |
|
| (b) | a partnership carrying on business outside the United Kingdom, |
|
| | shall be their principal office within the United Kingdom. |
|
| (6) | If a person has specified an address in the United Kingdom other than his |
|
| proper address within the meaning of subsection (4) as the one at which he |
|
| or someone on his behalf will accept documents of a particular description, |
|
| that address shall also be treated for the purposes of this section and section |
|
| 7 of the Interpretation Act 1978 (c. 30) as his proper address in connection |
|
| with the service on him of a document of that description. |
|
| |
| (a) | by virtue of this Part a document is required to be given or sent to a |
|
| person who is an owner or occupier of any land, and |
|
| (b) | the name or address of that person cannot be ascertained after |
|
| |
| | the document may be served either by leaving it in the hands of a person |
|
| who is or appears to be resident or employed on the land or by leaving it |
|
| conspicuously affixed to some building or object on the land.” |
|
57 | Insert the following new Clause— |
|
| “Documents in electronic form |
|
| (1) | A requirement of this Part— |
|
| (a) | to send a copy of a remedial notice to a person, or |
|
| (b) | to notify a person under section (Procedure for dealing with |
|
| complaints)(4) of the reasons for the issue of a remedial notice, |
|
| | is not capable of being satisfied by transmitting the copy or notification |
|
| electronically or by making it available on a web-site. |
|
| (2) | The delivery of any other document to a person (the “recipient”) may be |
|
| effected for the purposes of section (Service of documents)(2)(a)— |
|
| (a) | by transmitting it electronically, or |
|
| (b) | by making it available on a web-site, |
|
| | but only if it is transmitted or made available in accordance with subsection |
|
| |
| (3) | A document is transmitted electronically in accordance with this |
|
| |
| (a) | the recipient has agreed that documents may be delivered to him by |
|
| being transmitted to an electronic address and in an electronic form |
|
| specified by him for that purpose; and |
|
| (b) | the document is a document to which that agreement applies and is |
|
| transmitted to that address in that form. |
|
|
|
|
|
| (4) | A document which is transmitted in accordance with subsection (3) by |
|
| means of an electronic communications network shall, unless the contrary |
|
| is proved, be treated as having been delivered at 9 a.m. on the working day |
|
| immediately following the day on which it is transmitted. |
|
| (5) | A document is made available on a web-site in accordance with this |
|
| |
| (a) | the recipient has agreed that documents may be delivered to him by |
|
| being made available on a web-site; |
|
| (b) | the document is a document to which that agreement applies and is |
|
| made available on a web-site; |
|
| (c) | the recipient is notified, in a manner agreed by him, of— |
|
| (i) | the presence of the document on the web-site; |
|
| (ii) | the address of the web-site; and |
|
| (iii) | the place on the web-site where the document may be |
|
| |
| (6) | A document made available on a web-site in accordance with subsection |
|
| (5) shall, unless the contrary is proved, be treated as having been delivered |
|
| at 9 a.m. on the working day immediately following the day on which the |
|
| recipient is notified in accordance with subsection (5)(c). |
|
| |
| | “electronic address” includes any number or address used for the |
|
| purposes of receiving electronic communications; |
|
| | “electronic communication” means an electronic communication |
|
| within the meaning of the Electronic Communications Act 2000 |
|
| (c. 7) the processing of which on receipt is intended to produce |
|
| |
| | “electronic communications network” means an electronic |
|
| communications network within the meaning of the |
|
| Communications Act 2003 (c. 21); |
|
| | “electronically” means in the form of an electronic communication; |
|
| | “working day” means a day which is not a Saturday or a Sunday, |
|
| Christmas Day, Good Friday or a bank holiday in England and |
|
| Wales under the Banking and Financial Dealings Act 1971 (c. 80).” |
|
58 | Insert the following new Clause— |
|
| “Power to make further provision about documents in electronic form |
|
| (1) | Regulations may amend section (Documents in electronic form) by modifying |
|
| the circumstances in which, and the conditions subject to which, the |
|
| delivery of a document for the purposes of section (Service of |
|
| documents)(2)(a) may be effected by— |
|
| (a) | transmitting the document electronically; or |
|
| (b) | making the document available on a web-site. |
|
| (2) | Regulations may also amend section (Documents in electronic form) by |
|
| modifying the day on which and the time at which documents which are |
|
|
|
|
|
| transmitted electronically or made available on a web-site in accordance |
|
| with that section are to be treated as having been delivered. |
|
| (3) | Regulations under this section may make such consequential amendments |
|
| of this Part as the person making the regulations considers appropriate. |
|
| (4) | The power to make such regulations shall be exercisable— |
|
| (a) | in relation to documents relating to complaints about hedges |
|
| situated in England, by the Secretary of State; and |
|
| (b) | in relation to documents relating to complaints about hedges |
|
| situated in Wales, by the National Assembly for Wales. |
|
| (5) | In this section “electronically” has the meaning given in section (Documents |
|
| |
59 | Insert the following new Clause— |
|
| |
| |
| | “the appeal authority” has the meaning given by section (Appeals |
|
| against remedial notices and other decisions of relevant authorities)(7); |
|
| | “complaint” shall be construed in accordance with section (Complaints |
|
| to which this Part applies); |
|
| | “complainant” has the meaning given by section (Complaints to which |
|
| |
| | “the compliance period” has the meaning given by section (Remedial |
|
| |
| | “domestic property” has the meaning given by section (Domestic |
|
| |
| | “high hedge” has the meaning given by section (High hedges); |
|
| | “local authority”, in relation to England, means— |
|
| |
| (b) | a county council for a county in which there are no districts; |
|
| (c) | a London borough council; or |
|
| (d) | the Common Council of the City of London; |
|
| | and, in relation to Wales, means a county council or a county |
|
| |
| | “the neighbouring land” has the meaning given by section (Complaints |
|
| to which this Part applies)(5); |
|
| | “occupier”, in relation to any land, means a person entitled to |
|
| possession of the land by virtue of an estate or interest in it; |
|
| | “the operative date” shall be construed in accordance with sections |
|
| (Remedial notices)(5) and (Determination or withdrawal of appeals)(5) |
|
| |
| | “owner”, in relation to any land, means a person (other than a |
|
| mortgagee not in possession) who, whether in his own right or as |
|
| |
| (a) | is entitled to receive the rack rent of the land, or |
|
| (b) | where the land is not let at a rack rent, would be so entitled |
|
| |
| | “preventative action” has the meaning given by section (Remedial |
|
| |
|