Housing and Regeneration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Housing and Regeneration Bill

Housing and Regeneration Bill
Schedule 3 — Main powers in relation to land of the HCA
Part 4 — Powers in relation to open spaces
151

Disapplication of faculties
24    (1)
No faculty is required for—
(a)
the removal and reinterment of any human remains, or
(b)
the removal or disposal of any monuments,

in accordance with regulations under this Part of this Schedule.
5
      (2)
Sub-paragraph (1) is subject to any provision to the contrary made by
regulations under this Part of this Schedule.
Disapplication of section 25 of the Burial Act 1857
25
Section 25 of the Burial Act 1857 (c. 81) (which prohibits the removal of
human remains without the licence of the Secretary of State except in certain
10
cases) does not apply to a removal of human remains carried out in
accordance with regulations under this Part of this Schedule.
Interpretation: Part 3
26    (1)
In this Part of this Schedule—
“burial ground” includes any churchyard, cemetery or other ground
15
(whether or not consecrated) which has at any time been set apart for
the purposes of interment,
“monument” includes a tombstone or other memorial,
“prescribed” means prescribed by regulations made by the Secretary of
State.
20
      (2)
Any power conferred by paragraph 19(2) or 20(2) to use land is to be read as
a power to use the land, whether or not it involves—
(a)
the erection, construction or carrying out of any building or work, or
(b)
the maintenance of any building or work.
Part 4
25
Powers in relation to open spaces
27    (1)
This paragraph applies to land of the HCA which is, or forms part of—
(a)
a common,
(b)
open space, or
(c)
an allotment.
30
      (2)
The HCA or any other person may use the land in any way which accords
with planning permission despite anything in any enactment—
(a)
which relates to land of that kind, or
(b)
by which the land is specially regulated.
      (3)
The power conferred by sub-paragraph (2) to use land is to be read as a
35
power to use the land, whether or not it involves—
(a)
the erection, construction or carrying out of any building or work, or
(b)
the maintenance of any building or work.

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 1 — Extinguishment or removal powers for the HCA
152

Schedule 4
Section 12

Powers in relation to, and for, statutory undertakers
Part 1
Extinguishment or removal powers for the HCA
Notice for extinguishment of rights of undertakers or for removal of their apparatus
5
1     (1)
Sub-paragraph (2) applies if—
(a)
a protected right subsists over land of the HCA and is vested in, or
belongs to, statutory undertakers for the purpose of carrying on their
undertaking, or
(b)
apparatus vested in, or belonging to, statutory undertakers for the
10
purpose of carrying on their undertaking is on, under or over land of
the HCA.
      (2)
The HCA may serve a notice on the statutory undertakers.
      (3)
The notice may, in the case of a protected right, state that, at the end of the
relevant period, the right will be extinguished.
15
      (4)
The notice may, in the case of apparatus, require that, before the end of the
relevant period, the apparatus must be removed.
      (5)
In this paragraph—
“protected right” means—
(a)
a right of way on, under or over land, or
20
(b)
a right of laying down, erecting, continuing or maintaining
apparatus on, under or over land,
“relevant period” means—
(a)
the period of 28 days beginning with the date of service of the
notice, or
25
(b)
any longer period beginning with that date and specified in
the notice.
Counter-notices
2     (1)
Sub-paragraph (2) applies if the HCA serves a notice under paragraph 1 on
statutory undertakers.
30
      (2)
The statutory undertakers may, before the end of the period of 28 days
beginning with the date of the service of the notice, serve a counter-notice on
the HCA.
      (3)
The counter-notice is a notice stating that the statutory undertakers object to
all or any provisions of the notice under paragraph 1.
35
      (4)
The counter-notice must also specify the grounds of their objection.
Effect of unopposed notice
3     (1)
This paragraph applies if—
(a)
a notice is served under paragraph 1, and
(b)
no counter-notice is served under paragraph 2.
40

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 1 — Extinguishment or removal powers for the HCA
153

      (2)
Any right to which the notice under paragraph 1 relates is extinguished at
the end of the period specified for that purpose in the notice.
      (3)
The HCA may—
(a)
remove any apparatus, and
(b)
dispose of it as it considers appropriate,
5

if any requirement of the notice under paragraph 1 as to the removal of the
apparatus has not been complied with by the end of the period specified for
that purpose in the notice.
Opposed notices and Ministerial orders
4     (1)
This paragraph applies if—
10
(a)
a notice is served under paragraph 1, and
(b)
a counter-notice is served under paragraph 2.
      (2)
The HCA may—
(a)
withdraw the notice served under paragraph 1, or
(b)
apply to the Secretary of State and the appropriate Minister for an
15
order under sub-paragraph (3).
      (3)
The Secretary of State and the appropriate Minister may make an order
embodying, with or without modifications, the provisions of the notice.
      (4)
The fact that a notice has been withdrawn under sub-paragraph (2)(a) does
not prejudice the service of a further notice.
20
5     (1)
Before making an order under paragraph 4(3), the Secretary of State and the
appropriate Minister must give the statutory undertakers on whom notice
was served an opportunity to object to the application for the order.
      (2)
The Secretary of State and the appropriate Minister—
(a)
must consider any objections made by virtue of sub-paragraph (1),
25
and
(b)
must give—
(i)
the statutory undertakers who made the objections, and
(ii)
the HCA,

an opportunity to appear before, and be heard by, a person
30
appointed for this purpose by the Secretary of State and the
appropriate Minister.
      (3)
The Secretary of State and the appropriate Minister may then—
(a)
decide not to make an order, or
(b)
proceed to make an order in accordance with the application (with or
35
without modifications).
6     (1)
This paragraph applies if an order is made under paragraph 4(3).
      (2)
Any right to which the order relates is extinguished at the end of the period
specified for that purpose in the order.
      (3)
The HCA may—
40
(a)
remove any apparatus, and
(b)
dispose of it as it considers appropriate,

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 2 — Powers for undertakers to carry out works
154


if any requirement of the order as to the removal of the apparatus has not
been complied with by the end of the period specified for that purpose in the
order.
Compensation
7     (1)
Statutory undertakers are entitled to compensation from the HCA if—
5
(a)
any right vested in, or belonging to, the statutory undertakers is
extinguished, or
(b)
any requirement is imposed on the statutory undertakers,

by virtue of this Part of this Schedule.
      (2)
Sections 280 and 282 of the Town and Country Planning Act 1990 (c. 8)
10
(measure of compensation to statutory undertakers) apply to compensation
under this paragraph as they apply to compensation under section 279(4) of
that Act.
Electronic communications
8     (1)
The reference in paragraph 1(1)(a) to a protected right vested in, or
15
belonging to, statutory undertakers for the purpose of carrying on their
undertaking includes a reference to a protected right conferred by, or in
accordance with, the electronic communications code on the operator of an
electronic communications code network.
      (2)
The reference in paragraph 1(1)(b) to apparatus vested in, or belonging to,
20
statutory undertakers for the purpose of carrying on their undertaking
includes a reference to electronic communications apparatus kept installed
for the purposes of any such network.
      (3)
Sub-paragraphs (1) and (2) do not apply where paragraphs 12 and 13 of Part
2 of Schedule 3 apply (orders under paragraph 3 of that Schedule which
25
relate to electronic communications apparatus).
      (4)
Where paragraph 1 has effect as mentioned in sub-paragraphs (1) and (2)
above—
(a)
any reference in this Part of this Schedule to statutory undertakers
has effect as a reference to the operator of the electronic
30
communications code network, and
(b)
any reference in this Part of this Schedule to the appropriate Minister
has effect as a reference to the Secretary of State for Business,
Enterprise and Regulatory Reform.
Part 2
35
Powers for undertakers to carry out works
Notices to carry out works
9     (1)
Sub-paragraph (2) applies if—
(a)
apparatus vested in, or belonging to, statutory undertakers is on,
under or over land of the HCA, and
40
(b)
the statutory undertakers claim that development to be carried out
on the land will require, on technical or other grounds connected

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 2 — Powers for undertakers to carry out works
155

with carrying on their undertaking, the removal or re-siting of the
apparatus affected by the development.
      (2)
The statutory undertakers may serve on the HCA a notice claiming the right
to—
(a)
enter on the land, and
5
(b)
carry out such works for the removal or re-siting of the apparatus or
any part of it as may be specified in the notice.
      (3)
No notice may be served under sub-paragraph (2) more than 21 days after
the beginning of the development on the land.
Counter-notices
10
10    (1)
Sub-paragraph (2) applies if statutory undertakers serve a notice under
paragraph 9 on the HCA.
      (2)
The HCA may, before the end of the period of 28 days beginning with the
date of the service of the notice, serve a counter-notice on the statutory
undertakers.
15
      (3)
The counter-notice is a notice stating that the HCA objects to all or any
provisions of the notice under paragraph 9.
      (4)
The counter-notice must also specify the grounds of the HCA’s objection.
Effect of unopposed notice
11    (1)
This paragraph applies if—
20
(a)
a notice is served under paragraph 9,
(b)
no counter-notice is served under paragraph 10, and
(c)
the period of 28 days beginning with the date of the service of the
notice under paragraph 9 has ended.
      (2)
The statutory undertakers have the rights claimed in their notice under
25
paragraph 9.
Opposed notices and Ministerial orders
12    (1)
This paragraph applies if—
(a)
a notice is served under paragraph 9, and
(b)
a counter-notice is served under paragraph 10.
30
      (2)
The statutory undertakers may—
(a)
withdraw the notice served under paragraph 9, or
(b)
apply to the Secretary of State and the appropriate Minister for an
order under sub-paragraph (3).
      (3)
The Secretary of State and the appropriate Minister may by order confer on
35
the statutory undertakers—
(a)
the rights claimed in the notice under paragraph 9, or
(b)
such modified rights as the Secretary of State and the appropriate
Minister consider it appropriate to confer on the statutory
undertakers.
40

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 3 — Extension or modification of functions of undertakers
156

      (4)
The fact that a notice has been withdrawn under sub-paragraph (2)(a) does
not prejudice the service of a further notice.
Power to arrange for the works to be done by the HCA
13    (1)
Sub-paragraph (2) applies if statutory undertakers have the right to carry
out works for the removal or re-siting of apparatus by virtue of this Part of
5
this Schedule.
      (2)
The statutory undertakers may arrange with the HCA for the works to be
carried out by the HCA, under the superintendence of the statutory
undertakers, instead of by the statutory undertakers themselves.
Compensation
10
14    (1)
Statutory undertakers are entitled to compensation from the HCA if works
are carried out for the removal or re-siting of their apparatus which they
have the right to carry out by virtue of this Part of this Schedule.
      (2)
Sections 280 and 282 of the Town and Country Planning Act 1990 (c. 8)
(measure of compensation to statutory undertakers) apply to compensation
15
under this paragraph as they apply to compensation under section 279(4) of
that Act.
Electronic communications
15    (1)
The reference in paragraph 9(1)(a) to apparatus vested in, or belonging to,
statutory undertakers includes a reference to electronic communications
20
apparatus kept installed for the purposes of an electronic communications
code network.
      (2)
Where paragraph 9(1)(a) has effect as mentioned in sub-paragraph (1)
above—
(a)
any reference in this Part of this Schedule to statutory undertakers
25
has effect as a reference to the operator of the electronic
communications code network, and
(b)
any reference in this Part of this Schedule to the appropriate Minister
has effect as a reference to the Secretary of State for Business,
Enterprise and Regulatory Reform.
30
Part 3
Extension or modification of functions of undertakers
Ministerial order following representations by statutory undertakers
16    (1)
The Secretary of State and the appropriate Minister may by order provide
for an extension or modification of the functions of particular statutory
35
undertakers if conditions 1 and 2 are met.
      (2)
Condition 1 is that the statutory undertakers have made representations on
the subject to the Secretary of State and the appropriate Minister.
      (3)
Condition 2 is that the Secretary of State and the appropriate Minister
consider it appropriate to extend or modify the functions of the statutory
40
undertakers—

Housing and Regeneration Bill
Schedule 4 — Powers in relation to, and for, statutory undertakers
Part 3 — Extension or modification of functions of undertakers
157

(a)
to secure the provision of services which—
(i)
would not otherwise be provided, or
(ii)
would not otherwise be satisfactorily provided,

in relation to relevant land, or
(b)
to facilitate an adjustment of the carrying on of the undertaking
5
necessitated by any of the acts and events mentioned in sub-
paragraph (4).
      (4)
The acts and events are—
(a)
the acquisition by the HCA under this Part of this Act of any land—
(i)
in which an interest was held for the purpose of carrying on
10
the undertaking concerned, or
(ii)
which was used for that purpose, and
(b)
the extinguishment of a right, or the imposition of any requirement,
by virtue of Part 1 of this Schedule.
      (5)
In this Part of this Schedule “relevant land” means land in respect of which
15
any of the functions of the HCA under this Part of this Act are being, or have
been, exercised.
Ministerial order following representations by the HCA
17    (1)
The Secretary of State and the appropriate Minister may by order provide
for an extension or modification of the functions of particular statutory
20
undertakers if conditions 1 and 2 are met.
      (2)
Condition 1 is that the HCA has made representations on the subject to the
Secretary of State and the appropriate Minister.
      (3)
Condition 2 is that the Secretary of State and the appropriate Minister
consider it appropriate to extend or modify the functions of the statutory
25
undertakers to secure—
(a)
the provision of new services in relation to relevant land, or
(b)
the extension of existing services in relation to such land.
Examples of contents of orders
18    (1)
An order under paragraph 16 or 17 may, in particular—
30
(a)
give power to statutory undertakers—
(i)
to acquire (whether compulsorily or by agreement) any land
specified in the order, or
(ii)
to erect or construct any buildings or works specified in the
order,
35
(b)
apply, in relation to the acquisition of any such land or the erection
or construction of any such buildings or works, enactments relating
to the acquisition of land or the erection or construction of buildings
or works.
      (2)
An order under paragraph 16 which is for the purposes mentioned in sub-
40
paragraph (3)(a) of that paragraph or an order under paragraph 17 may, in
particular, give effect to any financial arrangements—
(a)
agreed between the HCA and the statutory undertakers, or
(b)
in the absence of agreement, decided to be equitable in such manner,
and by such tribunal, as may be specified in the order.
45