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The Earl of Caithness: My Lords, can the noble and learned Lord say whether there is any problem in regard to roads? If there is a cut and cover tunnel under a roadI was thinking of Hatfield where they have
Lord Falconer of Thoroton: My Lords, first, dealing with the points raised by the noble Lord, Lord Goodhart. We are grateful to him for his support for Amendment No. 50B. It was his letter that drew attention to the wrong placing in the Bill.
Subject to one matter, I do not believe that our legal or factual analysis differs. That one point of disagreement is that the noble Lord, Lord Goodhart, said that the problem that impliedly exists in the 1993 Actthat rightly identifies where the problem lieshas not yet caused any difficulty. Therefore he says that there is no need to make this amendment. The obverse of that is that by making this amendment we will avoid the right to enfranchised or managed companies getting control of the operational railway. The noble Lord acknowledges that that is the real problem. It has not yet arisen as a difficulty and therefore making it clear that that will not be allowed to happen equally will not cause any difficulty.
We are both on slightly uncharted territory because any conclusion can be drawn, in the face of the fact that the problem has not yet caused any difficulty, as to what is the right course. I am sure everybody in the House will agree that we need to have a situation where leaseholders do not end up having control over the operational railway; any other course is not sensible. This is the most effective way of dealing with it.
The noble Lord, Lord, Lord Goodhart, did not put forward any other alternative way of dealing with the issue. We believe that we have taken the right course. As regards the questions from the noble Earl, having given the opportunity, we have received no representations from either road or canal bodies that a problem is caused to them whereas we have received representations, which we have considered, in relation to Railtrack and London Underground. We have investigated them. I cannot give answers to the questions about how many blocks of flats are on top of cut and cover tunnels and how many are on top of deep-bore tunnels. But as the noble Lord said, we can see that there are some above cut and cover tunnels, but I am unable to say what is the scale of the problem. We believe that we have taken the right and sensible course, but we shall obviously keep the matter under review.
Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for what he said. I take some comfort from what was not an undertaking on his part, but he said that his department would consider whether it might look at this matter again with a view to introducing legislation next time we have another leasehold Bill to enable leaseholders in railway flats, if I may call them that, to have the right of enfranchisement or something equivalent to it. Having said that, this is obviously not a matter on which I would wish to divide the House. I beg leave to withdraw my amendment.
50B Lord Falconer of Thoroton rose to move, as an amendment to the Motion that the House do agree with the Commons in their amendment, at the end insert "and do propose the following consequential amendment to the Bill
Transpose new Clause (Premises including railway track) from after Clause 141 to after Clause 113."
For section 20 of the 1985 Act (limitation of service charges: estimates and consultation) substitute
"20 Limitation of service charges: consultation requirements
(1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either
(a) complied with in relation to the works or agreement, or
(b) dispensed with in relation to the works or agreement by (or on appeal from) a leasehold valuation tribunal.
(2) In this section "relevant contribution", in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement.
(3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount.
(4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement-
(a) if relevant costs incurred under the agreement exceed an appropriate amount, or
(b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount.
(5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount
(a) an amount prescribed by, or determined in accordance with, the regulations, and
(b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations.
(6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount.
(7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution
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would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is limited to the amount so prescribed or determined.
20ZA Consultation requirements: supplementary
(1) Where an application is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.
(2) In section 20 and this section
"qualifying works" means works on a building or any other premises, and
"qualifying long term agreement" means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months.
(3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement
(a) if it is an agreement of a description prescribed by the regulations, or
(b) in any circumstances so prescribed.
(4) In section 20 and this section the consultation requirements" means requirements prescribed by regulations made by the Secretary of State.
(5) Regulations under subsection (4) may in particular include provision requiring the landlord
(a) to provide details of proposed works or agreements to tenants or the recognised tenants' association representing them,
(b) to obtain estimates for proposed works or agreements,
(c) to invite tenants or the recognised tenants' association to propose the names of persons from whom the landlord should try to obtain other estimates,
(d) to have regard to observations made by tenants or the recognised tenants' association in relation to proposed works or agreements and, estimates, and
(e) to give reasons in prescribed circumstances for carrying out works or entering into agreements.
(6) Regulations under section 20 or this section
(a) may make provision generally or only in relation to specific cases, and
(b) may make different provision for different purposes.
(7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."