Housing and Regeneration Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Housing and Regeneration Bill

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 1 — Powers to override easements etc.
128

Schedule 3
Section 11

Main powers in relation to land of the HCA
Part 1
Powers to override easements etc.
Powers to override easements etc. in undertaking works or using land
5
1     (1)
The HCA or any other person may undertake any construction or
maintenance works on land of the HCA even if undertaking the works
involves—
(a)
interference with a relevant right or interest, or
(b)
a breach of a restriction as to the user of land arising by virtue of a
10
contract.
      (2)
But the construction or maintenance works must still be in accordance with
planning permission.
      (3)
The HCA or any other person may use any land of the HCA even if the use
involves—
15
(a)
interference with a relevant right or interest, or
(b)
a breach of a restriction as to the user of land arising by virtue of a
contract.
      (4)
But the use of the land must be in accordance with planning permission.
      (5)
Sub-paragraphs (1) to (4) do not authorise interference with—
20
(a)
any right of way on, under or over land, or
(b)
any right of laying down, erecting, continuing or maintaining
apparatus on, under or over land,

if the right is a protected right.
      (6)
In this paragraph—
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“construction or maintenance works” means the erection, construction,
carrying out or maintenance of any building or work,
“protected right” means—
(a)
a right vested in, or belonging to, statutory undertakers for
the purpose of carrying on their undertaking, or
30
(b)
a right conferred by, or in accordance with, the electronic
communications code on the operator of an electronic
communications code network,
“relevant right or interest” means any easement, liberty, privilege, right
or advantage annexed to land and adversely affecting other land
35
(including any natural right to support),
“statutory undertakers” means persons who are, or are deemed to be,
statutory undertakers for the purposes of any provision of Part 11 of
the Town and Country Planning Act 1990 (c. 8); and “statutory
undertaking” is to be read in accordance with section 262 of that Act
40
(meaning of “statutory undertakers”).

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 2 — Powers to extinguish public rights of way
129

Compensation for overridden easements etc.
2     (1)
Compensation is payable under section 7 or 10 of the Compulsory Purchase
Act 1965 (c. 56) in respect of any interference or breach made in pursuance
of paragraph 1.
      (2)
The compensation is to be assessed in the same manner, and subject to the
5
same rules, as in the case of other compensation under those sections in
respect of injurious affection where—
(a)
the compensation is to be estimated in connection with a purchase by
the HCA, or
(b)
the injury arises from the execution of works on, or use of, land
10
acquired by the HCA.
      (3)
Sub-paragraph (4) applies if a person other than the HCA—
(a)
is liable to pay compensation by virtue of sub-paragraphs (1) and (2),
and
(b)
fails to discharge that liability.
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      (4)
The liability is enforceable against the HCA.
      (5)
But sub-paragraph (4) does not affect any agreement between the HCA and
any other person for indemnifying the HCA against any liability under that
sub-paragraph.
Part 2
20
Powers to extinguish public rights of way
Powers of Secretary of State to extinguish public rights of way by order
3     (1)
The Secretary of State may by order extinguish any public right of way over
land of the HCA.
      (2)
Sub-paragraph (1) does not apply to land which is being held by the HCA
25
for its own administrative purposes.
Notification of proposal to make order
4     (1)
This paragraph applies if the Secretary of State is proposing to make an
order under paragraph 3.
      (2)
The Secretary of State must—
30
(a)
publish a notice stating—
(i)
the effect of the order,
(ii)
the time (not less than 28 days starting with the date of
publication of the notice) within which objections to the
proposal may be made, and
35
(iii)
the manner in which objections to the proposal may be made,
and
(b)
serve a copy of the notice on—
(i)
the local planning authority in whose area the land is
situated, and
40
(ii)
the relevant highway authority.

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 2 — Powers to extinguish public rights of way
130

      (3)
In sub-paragraph (2) “the relevant highway authority” means any authority
which is a highway authority in relation to the right of way which is
proposed to be extinguished by the order.
      (4)
Publication under sub-paragraph (2) must be in such manner as the
Secretary of State considers appropriate.
5
Duty to consider objections
5     (1)
The Secretary of State must proceed under paragraph 6 if—
(a)
an objection to a proposal to make an order is properly made and not
withdrawn, and
(b)
the matter is not otherwise dealt with.
10
      (2)
For the purposes of sub-paragraph (1) an objection is properly made if (and
only if)—
(a)
it is made—
(i)
within the time, and
(ii)
in the manner,
15

stated in the notice under paragraph 4, and
(b)
a written statement of the grounds of the objection is comprised in,
or submitted with, the objection.
      (3)
For the purposes of sub-paragraph (1) the matter is otherwise dealt with if
(and only if) the Secretary of State—
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(a)
decides, irrespective of the objection, not to make the order, or
(b)
decides to make a modification to the proposal which is agreed to by
the objector as meeting the objection.
6     (1)
The Secretary of State must, before making a final decision, consider the
grounds of the objection as set out in the statement comprised in, or
25
submitted with, the objection.
      (2)
The Secretary of State may require the objector to submit within a particular
period a further written statement as to any of the matters to which the
objection relates.
Duty to give opportunity to appear
30
7     (1)
The Secretary of State must, before making a final decision, give the objector
an opportunity to appear before, and be heard by, a person appointed for the
purpose by the Secretary of State.
      (2)
Sub-paragraph (3) applies if the objector takes advantage of this
opportunity.
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      (3)
The Secretary of State must give an opportunity of appearing and being
heard on the same occasion as the objector to—
(a)
the HCA, and
(b)
any other persons whom the Secretary of State considers ought to be
given the opportunity.
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      (4)
Sub-paragraphs (1) to (3) do not apply so far as the Secretary of State has the
power to proceed under paragraph 8 or 9.

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 2 — Powers to extinguish public rights of way
131

Power to treat objection as irrelevant
8
The Secretary of State may treat the objection as irrelevant for the purpose of
making a final decision—
(a)
if the Secretary of State has considered the grounds of the objection
as set out in the original statement and in any further statement, and
5
(b)
so far as the Secretary of State is satisfied that the objection relates to
a matter which can be dealt with in the assessment of compensation.
Power to curtail decision-making process
9
The Secretary of State may make a final decision without further
investigation as to the matters to which the objection relates if—
10
(a)
the Secretary of State—
(i)
has considered the grounds of the objection as set out in the
original statement and in any further statement, and
(ii)
is satisfied that, for the purpose of making a final decision,
sufficient information is available as to the matters to which
15
the objection relates, or
(b)
a further statement has been required under paragraph 6(2) but is not
submitted within the required period.
Power to hold public local inquiry
10    (1)
The Secretary of State must cause a public local inquiry to be held in relation
20
to an objection to a proposal to make an order under paragraph 3 if the
Secretary of State considers that the matters to which the objection relates are
such as to require investigation by such an inquiry before the Secretary of
State makes a final decision.
      (2)
The duty in sub-paragraph (1) is effective despite any other provisions of
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paragraphs 4 to 9.
      (3)
The other provisions of those paragraphs are to be ignored if no effect has
been given to them when the Secretary of State decides to cause an inquiry
to be held.
Orders relating to electronic communications apparatus: removal or abandonment of apparatus
30
11
Paragraphs 12 and 13 apply if—
(a)
an order under paragraph 3 extinguishing a public right of way is
made, and
(b)
at the time of the publication of the notice required by paragraph 4
any electronic communications apparatus was kept installed for the
35
purposes of an electronic communications code network under, in,
on, over, along or across the land over which the right of way
subsisted.
12    (1)
The power of the operator of the network to remove the apparatus is
exercisable, despite the order, at any time not later than the end of the period
40
of 3 months beginning with the day on which the right of way is
extinguished.
      (2)
The power of the operator of the network to remove the whole or any part
of the apparatus is exercisable after the end of that period if, before the end

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 2 — Powers to extinguish public rights of way
132

of the period, the operator has served notice on the HCA of the operator’s
intention to remove the apparatus or (as the case may be) part.
13    (1)
The operator of the network may abandon the electronic communications
apparatus, or any part of it, by serving notice to that effect on the HCA not
later than the end of the period of 3 months beginning with the day on which
5
the right of way is extinguished.
      (2)
In the absence of such a notice, the operator of the network is to be treated at
the end of the period of 3 months as having abandoned any part of the
apparatus which, at that time, the operator has neither—
(a)
removed, nor
10
(b)
served notice of intention to remove.
14    (1)
The operator of the network may recover from the HCA the expense of
providing any substitute electronic communications apparatus in such other
place as the operator may require.
      (2)
In sub-paragraph (1) “substitute electronic communications apparatus”
15
means electronic communications apparatus in substitution for—
(a)
the electronic communications apparatus removed or abandoned,
and
(b)
any other electronic communications apparatus connected with the
removed or abandoned apparatus which is made useless in
20
consequence of the removal or abandonment.
15
Electronic communications apparatus, or any part of it, abandoned by the
operator of an electronic communications code network under
paragraph 13—
(a)
vests in the HCA, and
25
(b)
is deemed, with its abandonment, to cease to be kept installed for the
purposes of an electronic communications code network.
Orders relating to electronic communications apparatus: notice requirements
16    (1)
The Secretary of State must serve notice on the operator of an electronic
communications code network of the making of an order under paragraph
30
3 if the order extinguishes a public right of way in circumstances in which
paragraphs 12 and 13 apply in relation to the operator.
      (2)
The notice must be served as soon as practicable after the making of the
order.
Supplementary: Part 2
35
17
The power of the Secretary of State to make orders under paragraph 3
includes power to—
(a)
vary or revoke such orders, and
(b)
make supplementary, incidental, consequential, transitional,
transitory or saving provision.
40
18
In this Part of this Schedule, in relation to an order, any reference to making
a final decision is a reference to deciding whether to make the order or what
modification (if any) ought to be made.

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 3 — Powers in relation to burial grounds and consecrated land etc.
133

Part 3
Powers in relation to burial grounds and consecrated land etc.
Burial grounds
19    (1)
This paragraph applies in relation to any land of the HCA which consists in,
or forms part of, a burial ground.
5
      (2)
The HCA may use the land in any way which accords with planning
permission despite—
(a)
anything in any enactment relating to burial grounds, or
(b)
any obligation or restriction imposed under ecclesiastical law or
otherwise in respect of burial grounds.
10
      (3)
But sub-paragraph (2) does not apply in relation to any land which has been
used for the burial of the dead until prescribed requirements about the
removal and reinterment of human remains and the disposal of monuments
have been complied with in relation to the land.
Consecrated land other than burial grounds
15
20    (1)
This paragraph applies in relation to any land of the HCA which—
(a)
is consecrated land (whether or not including a building), and
(b)
does not consist in, or form part of, a burial ground.
      (2)
The HCA or any other person may use the land in any way which accords
with planning permission despite any obligation or restriction imposed
20
under ecclesiastical law or otherwise in respect of consecrated land.
      (3)
But any such use of the land is subject to—
(a)
prescribed requirements about the disposal of monuments, and
(b)
prescribed provisions for prohibiting or restricting the use of the
land while—
25
(i)
any church or other building used, or formerly used, for
religious worship remains on the land, or
(ii)
any part of any such church or other building remains on the
land.
      (4)
Prohibitions or restrictions prescribed under sub-paragraph (3)(b) may be
30
absolute or until a prescribed consent is obtained.
Other land connected to religious worship
21    (1)
This paragraph applies in relation to any land of the HCA which—
(a)
is neither consecrated land nor land which consists in, or forms part
of, a burial ground, and
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(b)
at the time of acquisition included—
(i)
a church or other building used, or formerly used, for
religious worship, or
(ii)
the site of such a church or other building.
      (2)
Any use of the land is subject to prescribed requirements about the disposal
40
of monuments.

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 3 — Powers in relation to burial grounds and consecrated land etc.
134

Regulations: general
22    (1)
Regulations under this Part of this Schedule must secure that any use of land
which is subject to compliance with the regulations is (so far as possible)
subject to an appropriate level of control.
      (2)
For the purposes of sub-paragraph (1) an appropriate level of control is the
5
same control—
(a)
as imposed by law in relation to a similar use authorised by an
enactment not contained in this Part of this Act,
(b)
as imposed by a Measure, or
(c)
as it would be proper to impose on a disposal of the land concerned
10
otherwise than in pursuance of an enactment or Measure.
      (3)
Regulations under this Part of this Schedule must impose such requirements
in relation to the disposal of the land as the Secretary of State considers
appropriate to secure that the requirements and other provisions in the
regulations about the use of the land are complied with.
15
      (4)
Regulations made for the purposes of paragraphs 19 to 21 may, in particular,
include incidental or consequential provision about the closing of registers.
Regulations about human remains and monuments
23    (1)
Regulations under this Part of this Schedule about the removal and
reinterment of human remains and the disposal of monuments must require
20
the persons in whom the land is vested to publish notice of their intention to
carry out the removal and reinterment of any human remains or the disposal
of any monuments.
      (2)
Regulations under this Part of this Schedule about the removal and
reinterment of human remains and the disposal of monuments must make
25
provision for—
(a)
enabling the personal representatives or relatives of any deceased
person themselves—
(i)
to undertake the removal and reinterment of the remains of
the deceased, and
30
(ii)
the disposal of any monument commemorating the
deceased, and
(b)
requiring the persons in whom the land is vested to meet the
expenses of such removal, reinterment and disposal provided that
they are not more than such amount as may be prescribed.
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      (3)
Regulations under this Part of this Schedule about the removal and
reinterment of human remains and the disposal of monuments must require
compliance with such reasonable conditions (if any) as may be imposed, in
the case of consecrated land, by the bishop of the diocese, in relation to—
(a)
the manner of removal of any human remains,
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(b)
the place and manner of reinterment of any human remains, and
(c)
the disposal of any monuments.
      (4)
Regulations under this Part of this Schedule about the removal and
reinterment of human remains must require compliance with any directions
given in any case by the Secretary of State in relation to the removal and
45
reinterment of any human remains.