SCHEDULES

SCHEDULE 28 Urban Development Corporations: Land

Part IV Acquisition of Rights

Adaptation of Part I of 1965 Act

23

(1)

In the M1Compulsory Purchase Act 1965 (hereafter in this Part of this Schedule referred to as “the Act”) for section 7 (which relates to compensation) there shall be substituted the following—

“7

(1)

In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent, if any, to which the value of the land over which the right is purchased is depreciated by the purchase but also to the damage, if any, to be sustained by the owner of the land by reason of injurious affection of other land of the owner by the exercise of the right.

(2)

The modifications subject to which subsection (1) of section 44 of the M2Land Compensation Act 1973 is to have effect, as applied by subsection (2) of that section to compensation for injurious affection under this section, are that for the words “land is acquired or taken" there shall be substituted the words “ a right over land is purchased ” and for the words “acquired or taken from him" there shall be substituted the words “ over which the right is exercisable ””.

F1(2)

Section 8(1) of the Compulsory Purchase Act 1965 has effect as if references to acquiring land were to acquiring a right in the land, and Schedule 2A to that Act is to be read as if, for that Schedule, there were substituted—

“SCHEDULE 2ACounter-notice requiring purchase of land

Introduction

1

(1)

This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over the whole or part of a house, building or factory.

(2)

But see section 2A of the Acquisition of Land Act 1981 (under which a compulsory purchase order can exclude from this Schedule land that is 9 metres or more below the surface).

2

In this Schedule “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3

A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory.

4

A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

5

On receiving a counter-notice the acquiring authority must decide whether to—

(a)

withdraw the notice to treat,

(b)

accept the counter-notice, or

(c)

refer the counter-notice to the Upper Tribunal.

6

The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7

If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.

8

If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period.

9

If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory.

Determination by Upper Tribunal

10

On a referral under paragraph 7 the Upper Tribunal must determine whether the acquisition of the right would—

(a)

in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b)

in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11

In making its determination, the Upper Tribunal must take into account—

(a)

the effect of the acquisition of the right,

(b)

the proposed use of the right, and

(c)

if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12

If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10 it must determine how much of the house, building or factory the authority ought to be required to take.

13

If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land.

14

(1)

If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2)

If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3)

Any dispute as to the compensation is to be determined by the Upper Tribunal.”

(3)

The following provisions of the Act (which state the effect of a deed poll executed in various circumstances, where there is no conveyance by persons with interests in the land), namely—

  • section 9(4) (failure of owners to convey);

  • paragraph 10(3) of Schedule 1 (owners under incapacity);

  • paragraph 2(3) of Schedule 2 (absent and untraced owners); and

  • paragraphs 2(3) and 7(2) of Schedule 4 (common land),

shall be so modified as to secure that, as against persons with interests in the land which are expressed to be overriden by the deed, the right which is to be purchased compulsorily is vested absolutely in the acquiring authority.

(4)

Section 11 of the Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, it has power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on F2enforcement officer's or sheriff's warrant in the event of obstruction) of the Act shall be modified correspondingly.

(5)

Section 20 of the Act (compensation for short-term tenants) shall apply with the modifications necessary to secure that persons with such interests as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition of the interests but taking into account only the extent (if any) of such interference with such interests as is actually caused, or likely to be caused, by the exercise of the right in question.

(6)

Section 22 of the Act (protection of acquiring authority’s possession of land where by inadvertence an interest in the land has not been purchased) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right in question, subject to compliance with that section as respects compensation.