(15-21)

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

(  15  )

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which the appeal is withdrawn.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

be disregarded).”
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

with.

(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

entering; and

(b)
shall produce such evidence if required to do so at any time while

he remains on the land.

(5)
A person who enters land in the exercise of a power conferred by this

section may—

(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

of a high hedge.

(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

(  16  )

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—

“Offences

(1)
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) 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

appears to the court—

(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

notice,

(  17  )


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

notice.

(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

entering; and

(  18  )

(b)
shall produce such evidence if required to do so at any time while

he remains on the land.

(7)
A person who enters land in the exercise of a power conferred by this

section may—

(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

corporate, or

(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

body corporate.”
56
Insert the following new Clause—

“Service of documents

(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.

(3)
Such a document may—

(a)
in the case of a body corporate, be served on the secretary or clerk

of that body;

(b)
in the case of a partnership, be served on a partner or a person

having the control or management of the partnership business.

(  19  )

(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.

(7)
Where—

(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

reasonable inquiry,


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) or (5).

(3)
A document is transmitted electronically in accordance with this

subsection if—

(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.

(  20  )

(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

subsection if—

(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

accessed.

(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).

(7)
In this section—


“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

writing;


“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

(  21  )

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

in electronic form).”
59
Insert the following new Clause—

“Interpretation

In this Part—

“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

this Part applies)(5);

“the compliance period” has the meaning given by section (Remedial

notices)(6);

“domestic property” has the meaning given by section (Domestic

property);

“high hedge” has the meaning given by section (High hedges);

“local authority”, in relation to England, means—

(a)
a district council;

(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

borough council;

“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)

and (6);

“owner”, in relation to any land, means a person (other than a

mortgagee not in possession) who, whether in his own right or as

trustee for any person—

(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

if it were so let;

“preventative action” has the meaning given by section (Remedial

notices)(9);