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Schedule 2 - Acquisition of land
886. Schedule 2 makes further provision regarding the acquisition of land and new rights over land by the HCA.
887. It applies the Acquisition of Land Act 1981 (with modifications) to the acquisition of land and new rights over land. The 1981 Act sets out the standard compulsory purchase procedure, which is applied in the case of most compulsory acquisitions. In summary:
888. Various statutory bodies - including the Urban Regeneration Agency under the 1993 Act - have the power to acquire land which is, or forms part of, a common, open space or allotment. The Acquisition of Land Act 1981 makes separate procedural provision in relation to such land. A compulsory purchase order in respect of any of these types of land will be subject to special parliamentary procedure (which ensures a high level of parliamentary scrutiny) unless the Secretary of State is satisfied that equivalent land has been given in exchange for such land or that certain other limited circumstances (for example, that the land area does not exceed a set maximum) apply. Provision is also made in respect of notice requirements, an opportunity for objections to be made and a power for the Secretary of State to hold a public local inquiry.
889. Part 1 of the Schedule makes provision for the extinguishment of private rights of way or rights in relation to apparatus and for apparatus to vest in the HCA (subject to any agreement between the HCA and the person in whom the right or apparatus is vested). Compensation is payable to any person who suffers loss as a result of the extinguishment of any such right or the vesting of any apparatus. These provisions do not apply to any right vested in, or apparatus belonging to, statutory undertakers for the purpose of carrying on their undertaking.
890. Schedule 2 also ensures that following a compulsory acquisition the usual regime for compensation applies. The compulsory acquisition legislation applied by Schedule 2 contains various provisions for the recovery or award of costs. Where any provision is made in respect of costs, or where there is a power to make an order in respect of costs, such provision would be governed by usual administrative law principles of reasonableness.
891. Part 2 of Schedule 2 also applies Part 1 (except section 31) of the Compulsory Purchase Act 1965 to the acquisition of land by agreement (so far as applicable).
Schedule 3 - Main powers in relation to land of the HCA
892. Part 1 of Schedule 3 makes provision in respect of powers to override easements.
893. The HCA (or any person working on behalf of the HCA) will be able to carry out development or regeneration works on its land even if the works interfere with a right or interest in respect of that land. However any works undertaken under this provision must still comply with the relevant planning permission. This power does not authorise interference with rights of statutory undertakers that are for the purpose of their statutory undertaking. Part 1 is modelled on paragraph 5 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993 (as it is proposed to be amended by the Planning Bill) which gave the Urban Regeneration Agency similar powers.
894. A right to compensation may arise under section 7 or 10 of the Compulsory Purchase Act 1965 in relation to an interference or breach in pursuance of this power. In addition, if compensation is payable by a third party and is not paid by them, the HCA can be held liable to pay that compensation.
895. Part 2 of Schedule 3 makes provision in respect of powers to extinguish public rights of way.
896. The Secretary of State may by order extinguish any public right of way over land owned by the HCA provided that the Secretary of State is satisfied that an alternative right of way has been, or will be, provided or that an alternative right of way is not required.
897. Part 2 sets out the statutory procedure that must be followed if the Secretary of State proposes to make an order to extinguish a public right of way. It includes a duty to consider objections and the power to hold a public local inquiry.
898. The Secretary of State must publish a notice stating the effect of the order and the time by when, and manner in which, any objections to the order must be made. The Secretary of State must serve a copy of the notice on the relevant local planning authority and the relevant highway authority. The procedure also includes a duty to consider any objections that are properly made, a power to give an objector an opportunity to have their objection heard, and a power for the Secretary of State to hold a public local inquiry if the Secretary of State considers the matters being discussed require such investigation.
899. Where an order under this power is made and any electronic communications apparatus is installed for the purposes of an electronic communications code network under, in, on, over, along or across the land over which the right of way subsisted, provision is made in this Part of the Schedule for the operator of the network to remove, or to serve a notice on the HCA of an intention to abandon, the apparatus within a three month period from the date the right of way is extinguished. The operator is entitled to recover the expense of providing any substitute apparatus from the HCA as a result of the removal or abandonment of the apparatus.
900. Part 3 of Schedule 3 makes provision in relation to burial grounds and consecrated land etc.
901. This Part makes provision in respect of burial grounds (which are defined as including any churchyard, cemetery or other ground, whether or not consecrated, which has at any time been set apart for the purposes of interment), consecrated land and other land connected to religious worship belonging to the HCA. This Part is modelled on equivalent powers given to the Urban Regeneration Agency in paragraph 6 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.
902. Any burial ground which has been used for the burial of the dead may not be used by the HCA until prescribed requirements about the removal and reinterment of human remains, and the disposal of monuments, have been complied with. Regulations made under this power must specifically make provision to enable relatives or personal representatives of any deceased person themselves to undertake the removal and reinterment of the remains of the deceased, and the disposal of any monument commemorating the deceased. The regulations must also require the persons in whom the burial ground is vested to meet the cost of the removal, reinterment and disposal (although the regulations may prescribe a maximum amount). The Secretary of State may also give directions regarding the removal and reinterment of human remains in any case, and the regulations must require compliance with any directions given.
903. The HCA may use consecrated land (other than burial grounds) provided that such use complies with requirements in regulations (which may be made by the Secretary of State under this Schedule) about the disposal of monuments and any provisions prohibiting or restricting use of the land while any church or other building (including any part of) used, or formerly used, for religious worship is on the land.
904. Use of any other land which is connected to religious worship (which is not consecrated land nor land which consists of, or forms part of, a burial ground) and at the time of acquisition by the HCA included a church or other building used, or formerly used, for religious worship, or the site of such a church or building, is subject to requirements in regulations (which may be made by the Secretary of State under this Schedule) about the disposal of monuments.
905. Subject to the regulations providing otherwise, the Schedule provides that no faculty (in ecclesiastical law a faculty is a privilege granted to allow something which is otherwise prevented by law) is required where the removal and reinterment of human remains, or the removal or disposal of any monuments, is carried out in accordance with regulations made under the power in this Schedule. In addition, the Schedule provides that section 25 of the Burials Act 1857 (which prohibits the removal of human remains without the licence of the Secretary of State except in certain cases) does not apply to a removal of human remains carried out in accordance with regulations made under this Schedule.
906. Part 4 of Schedule 3 makes provision in respect of powers in relation to open spaces.
907. The HCA may use any of its land which is, or forms part of, a common, an open space or an allotment in any way provided it is in accordance with planning permission, despite anything in legislation relating to that type of land or under which that land is specifically regulated. This clause is modelled on a power applied to the Urban Regeneration Agency contained in paragraph 7 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.
908. Schedule 4 is modelled on provisions in paragraphs 12 to 19 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.
909. "Statutory undertakers" for the purposes of Schedule 4 are defined as those persons who are or who are deemed to be "statutory undertakers" for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990. For example, this includes persons authorised by any enactment to carry on any railway, light railway, tramway, road or water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking as well as aviation, gas, water and electricity undertakers.
910. Part 1 of the Schedule enables the HCA to serve a notice on a statutory undertaker extinguishing certain rights over land of the HCA vested in, or belonging to, the statutory undertaker or stating that apparatus vested in, or belonging to, the statutory undertaker must be removed from land of the HCA. The statutory undertaker may serve a counter-notice objecting to the provisions of the notice and detailing the grounds of their objection. The provisions set out the subsequent procedure to be followed. A statutory undertaker is entitled to compensation if a right is extinguished or any requirement is imposed upon them under this Part of this Schedule. These provisions apply to the operator of an electronic communications code network as a statutory undertaker in certain circumstances.
911. Part 2 of the Schedule applies where apparatus of the statutory undertaker is situated on, under or over the land of the HCA and the statutory undertaker needs to remove or re-site the apparatus in order to carry out development. In such circumstances a statutory undertaker may serve notice on the HCA claiming the right to enter land of the HCA and remove or re-site the apparatus. The HCA may serve a counter-notice objecting to the provisions of the notice and detailing the grounds of objection. The provisions set out the subsequent procedure to be followed. If works are to be carried out, the statutory undertaker and the HCA may arrange for the HCA to carry out the works under the supervision of the undertaker. Statutory undertakers are entitled to compensation from the HCA in respect of any works carried out under this Part of this Schedule.
912. Part 3 of the Schedule enables statutory undertakers to make representations to the Secretary of State and appropriate Minister for an extension or modification to their functions. The HCA may also make representations for the extension or modification of the functions of a statutory undertaker. Subject to specified conditions the Secretary of State and the Minister may make an order accordingly. The statutory undertaker or the HCA (that is, whoever made the representations) must publish a notice specifying the time by when, and manner in which objections may be made, and any other details the Secretary of State and Minister direct should be included. The provisions set out the subsequent procedure to be followed by the Secretary of State and the Minister in considering any objections and include the power to hold a public local inquiry. An order may, for example, give a statutory undertaker power to acquire land (whether compulsorily or by agreement) and to apply enactments relating to the acquisition of land, which would ensure compensation would be payable as usual in such cases. An order may give effect to any financial arrangements agreed between the HCA and the statutory undertaker, or specify a tribunal to determine the issue in the absence of any such financial arrangement. Orders under this Part of the Schedule are subject to special parliamentary procedure, which ensures a high level of parliamentary scrutiny.
913. Part 4 of the Schedule enables a statutory undertaker to be relieved of carrying out some of their obligations where they have made representations to the appropriate Minister and the Minister is satisfied that meeting those obligations has been made impracticable following certain specified acts or events. Subject to specified conditions the Minister may make an order accordingly. The statutory undertaker must publish and/or serve notices in accordance with any directions given by the Minister. The provisions set out the subsequent procedure to be followed by the Minister in considering any objections received and include the power to hold a public local inquiry. If an objection is properly made and not withdrawn the order will be subject to special parliamentary procedure. The provisions also set out how an order may be challenged.
Schedule 5 - Amendments to the New Towns Act 1981
914. Schedule 5 transfers certain functions of the Commission for the New Towns in Wales to the Welsh Ministers. In England the functions of the Commission for the New Towns will be carried out by the HCA. It also makes other consequential amendments to the New Towns Act 1981.
Schedule 6 - Transfer schemes
915. Schedule 6 provides for transfer schemes.
916. In relation to the transfer of employment rights and liabilities, Schedule 6 provides for an equivalent of regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended).
917. Schedule 7 makes provision relating to the tax implications of transfers of property, rights or liabilities under transfer schemes made under Clauses 53 or 67 and Schedule 6. It ensures that unwanted tax charges and reliefs do not arise as a consequence of such schemes.
918. Paragraph 1 introduces the Schedule.
919. Paragraph 2 defines the key concepts 'transfer', 'transfer scheme', 'transfer between bodies' and 'transfer to government' used elsewhere in the Schedule.
920. Paragraph 3 contains other definitions used elsewhere in the Schedule.
921. Paragraph 4 provides continuity of trade in connection with the computation of profits and losses for purposes of corporation tax in respect of periods wholly partly after the commencement of a transfer scheme.
922. Paragraphs 5 and 6 provide for continuity of treatment for capital allowances in respect of property transferred under a transfer scheme.
923. Paragraph 7 provides that, in respect of property transferred under a transfer scheme, for capital gains purposes, the transfer is to be taken as being for a consideration such that no gain nor loss accrues.
924. Paragraph 8 provides that section 30 of the Taxation of Chargeable Gains Act 1992 shall be disregarded in respect of a transfer made under a transfer scheme.
925. Paragraph 9 makes a consequential amendment to section 35(3)(d) of the Taxation of Chargeable Gains Act 1992.
926. Paragraph 10 ensures continuity of treatment for transfers made under a transfer scheme for the purposes of intangible assets.
927. Paragraph 11 ensures continuity of treatment for transfers made under a transfer scheme for the purposes of loan relationships.
928. Paragraph 12 ensures that no stamp duty liability arises on a transfer made under a transfer scheme.
Schedule 8 - Amendments of enactments: Part 1
929. Schedule 8 contains consequential amendments to various enactments. The majority of these amendments remove references to the bodies that will be abolished, (i.e. the Urban Regeneration Agency, the Commission for New Towns and/ or "English Partnerships" (the name under which the Urban Regeneration Agency and the Commission for the New Towns have jointly operated)) and insert appropriate references to the HCA.
Schedule 9 - Penalty charge notices
930. Schedule 9 sets out what must be included in a penalty charge notice (paragraph 1). It provides for the penalty sum to be such sum not exceeding £1,000 as may be prescribed in regulations by the appropriate national authority (paragraph 2), and for this to be payable within 28 days or such extended period as the authority may allow (paragraph 3). It provides for review of notices by the enforcement authority on request made within that period (paragraph 4), for withdrawal of the notice by the authority if appropriate (paragraph 5), and for appeal to a county court from a confirmation of the notice upon review (paragraph 6). Provision is made for recovery of the penalty charge by the enforcing authority (paragraph 7), and for evidence to be given in writing in recovery proceedings (paragraph 8). There is provision for the enforcement authority to return payments of any charge where a notice is withdrawn or quashed (paragraph 9). Provision for service of notices is made (paragraph 10). The appropriate national authority may by regulations make provision supplementary or incidental to Schedule 9 for subjects including the form of penalty charge notices, circumstances in which they may not be given, methods of payment, and service (paragraph 11).
931. Part 1 of Schedule 10 amends the Housing Act 1985, the Housing Act 1988, and the Housing Act 1996 to provide that where a possession order has been made against a tenant, secure, assured, introductory and demoted tenancies will end on the date the tenant is evicted (unless the tenant ends the tenancy before that date). The provisions will prevent the creation in future of "tolerated trespassers" who remain in occupation in the property but without the tenancy agreement or the relevant statutory provisions applying. Part 2 of the Schedule provides that where before commencement a tenant has already become a tolerated trespasser, a new tenancy will arise. Provision is made for the details of how this new tenancy will relate to the original tenancy.
932. Paragraphs 1 to 4 amend the Housing Act 1985. The amendments in paragraph 2 to section 82 ensure that where a possession order has been made in relation to a secure tenancy, the tenancy ends when the tenant is evicted. Paragraph 3 makes consequential amendments to section 85 which deals with the discretion of the court in possession proceedings, and gives the court wider powers to discharge or rescind a possession order.
933. Paragraph 4 amends Ground 1 of Schedule 3 to the Housing Act 1985, which sets out a landlord's grounds for refusing to allow a secure tenant to exchange homes with another tenant. The amended wording ensures that the ground applies in all cases where a possession order has been made, regardless of the wording of the possession order.
934. Paragraphs 5 to 9 amend the Housing Act 1988. The amendments in paragraph 6 to section 5 ensure that the tenancy will continue until the tenant is evicted. Paragraph 7 amends section 7(7) to the same effect with respect to fixed term tenancies which have ended.
935. Paragraph 8 makes consequential amendments to section 9 which deals with the discretion of the court in possession proceedings, and gives the court wider powers to discharge or rescind a possession order.
936. Paragraph 9 amends section 21 with respect to when possession orders in respect of assured shorthold tenancies take effect. Where the court grants a possession order terminating a fixed term or periodic assured shorthold tenancy, including any statutory periodic tenancy arising on or after the end of the fixed term, the tenancy will end when the tenant is evicted.
937. Paragraphs 10 to 13 amend the Housing Act 1996. Paragraphs 11 and 12 amend sections 127 and 130 to provide that where a possession order has been made in relation to an introductory tenancy, the tenancy will end when the tenant is evicted, and paragraph 13 makes similar provision for demoted tenancies by amending section 143D.
938. Paragraph 14 makes transitional provisions. The amended statutory provisions in Part 1 of the Schedule on when tenancies end will not apply where a possession order has already been made, except in two circumstances. These exceptions are, firstly, that they will apply where the tenancy ended after a possession order was made but a new tenancy arises under Part 2 of the Schedule; and secondly, that they will apply where a possession order was made before commencement and the tenancy has not yet ended (because commencement occurs before the date for possession specified in the possession order).
939. Paragraph 14(3) ensures that the wider powers of the court to discharge or rescind possession orders apply to all possession orders whenever made.
940. Paragraph 14(4) contains clarification of the reference to tenancies ending. Tenancies at present end on the date for possession specified in the possession order, but it is possible for the court subsequently to make an order varying the possession date to a date in the future. The effect of such an order is that the tenancy is restored without a break. Paragraph 14(4) clarifies that, where this has happened, the tenancy has not ended for the purposes of these provisions.
941. In Part 2 of the Schedule, paragraph 15 defines "an original tenancy" as a tenancy which ended as a result of a possession order (but not as a result of execution of the order - i.e. eviction).
942. Paragraph 16(1) provides that a new tenancy of the dwelling-house let under the original tenancy is treated as arising on the commencement date, between the ex-landlord and the ex-tenant, if three conditions are satisfied. These conditions are, firstly, that the home condition is met; secondly, that the ex-landlord is entitled to let the dwelling-house (for instance, that there has not been a stock transfer to a new landlord); and thirdly, that the ex-landlord and ex-tenant have not in the meantime entered into a new tenancy.
943. The remaining sub-paragraphs of paragraph 16 set out details in relation to the home condition. Paragraph 16(2) provides that the dwelling-house must have been the only or principal home of the ex-tenant throughout the termination period, and still be so on the commencement date. Paragraph 16(3) defines the termination period. Sub-paragraphs (4) to (6) ensure that the home condition will be met where the ex-tenant has been evicted from the property, but the warrant of eviction is subsequently set aside (leaving the possession order still in force). Where this happens, if the ex-tenant returns to the property the new tenancy arises on the first day of resuming occupation.
944. Paragraph 16(7) gives the appropriate national authority power by order to provide for other circumstances where the home condition is met.
945. Paragraph 17 specifies the nature in each case of the replacement tenancy. In all but one case, the replacement tenancy is of the same type as the original tenancy. The exception, in paragraph 17(a)(ii), is where the original tenancy was an introductory tenancy but during the termination period the landlord revoked the introductory tenancy regime. In such circumstances the replacement tenancy will be secure.
946. Paragraph 18 provides that the terms and conditions of the original tenancy immediately before it ended will apply to the new tenancy, subject to sub-paragraphs (2) to (6). Paragraph 18(2) enables changes made in the termination period in the amount of 'rent' to apply to the new tenancy, and paragraph 18(3) ensures that arrears of 'rent' owed for the termination period will be owed in respect of the new tenancy. Paragraph 18(4) gives the appropriate national authority a power to provide by order for other modifications of the terms and conditions of the new tenancy.
947. Paragraph 18(5) provides a safeguard by specifying that nothing in the preceding sub-paragraphs permits a term to be read into the new tenancy which could not have been applied to the original tenancy if it had not ended. For example, if the ex-landlord had been charging the ex-tenant higher "rent" during the termination period than would have been permissible had the tenancy been in force, the rent under the new tenancy will not be modified to take account of this.
948. Paragraph 18(6) refers to the situation where an original introductory tenancy has to be replaced by a new secure tenancy, and requires the terms and conditions to be modified as necessary to reflect this.
949. Paragraph 19(1) provides that any statutory provisions relating to secure, assured, introductory or demoted tenancies apply to such a tenancy arising as a new tenancy under Part 2 of the Schedule.
950. Paragraph 19(2) and (3) provides that where the new tenancy is an introductory or demoted tenancy, the statutory provisions providing for the length of the tenancy are modified so as to secure that the new tenancy does not consist simply of the remainder of the one year period after taking into account the time spent under the original tenancy.
951. Paragraph 19(4) gives the appropriate national authority power by order to modify any statutory provision as it applies to a new tenancy.
952. Paragraph 20 deals with the effect which court orders made in the course of the possession proceedings in respect of the original tenancy have on the new tenancy. The possession order itself is to be treated, so far as practicable, as applying to the new tenancy, and paragraph 20(2) provides that any other court orders relating to occupation of the dwelling-house and made in contemplation of, in consequence of, or otherwise in connection with the possession order, must also be treated (so far as practicable) as applying to the new tenancy.
953. Paragraph 21 sets out circumstances in which the original tenancy and the new tenancy must be treated as the same and continuous tenancy, and deals with related matters. The two tenancies must be treated as the same and continuous for relevant purposes, which are listed in paragraph 21(2). These are succession rights; calculation of qualification periods for the right to buy (which includes the preserved right to buy and the right to acquire); and enabling the landlord to rely on ground 8 of Schedule 2 to the Housing Act 1985. In addition, the appropriate national authority may by order specify other relevant purposes.
954. Paragraph 21(3) gives the court a power to order that the original tenancy and the new tenancy are to be treated as the same and continuous for the purpose of a relevant claim, so that the claim may apply to the termination period. A relevant claim is defined in paragraph 21(4) as being a claim by either ex-landlord or ex-tenant against the other for breach of the tenancy agreement, or a claim by the ex-tenant against the ex-landlord for breach of statutory duty. Where a claim has already been made before the commencement date, it will only be a relevant claim if the proceedings have not yet been finally determined at that date. A power is given to the appropriate national authority to specify other types of claim as relevant for this purpose. Paragraph 21(5) defines when a claim is finally determined.
955. Paragraph 22 ensures that where tenants have been consulted pursuant to statutory requirements, the fact that occupants who were ex-tenants at the time were or were not allowed to vote does not mean that the consultation requirements were not complied with. The appropriate national authority is given a power to specify consultation requirements additional to those listed in paragraph 22(2).
956. The effect of paragraph 23 is that where there are ex-tenants who were formerly joint tenants, the occupation of the dwelling-house as only or principal home by at least one of them is sufficient for the home condition to be met. It also gives the appropriate national authority power by order to modify the way Part 2 of the Schedule applies to joint tenancies.
957. Paragraph 24 repeats in relation to Part 2 of the Schedule the provision in paragraph 14(4), clarifying that where a tenancy which had formerly ended was restored (by the court varying the possession date in the order) such a tenancy then no longer counts as a tenancy which has ended for the purposes of these provisions.
958. Paragraph 25 contains definitions and interpretation of words and phrases used in the Schedule, and gives references to the paragraphs in which particular words and phrases are defined.
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|Prepared: 2 April 2008