Section 43 Power to exempt
200.This section gives the appropriate national authority the power to make an order exempting certain works from the controls in section 38. Any exemption order made by the Secretary of State will, by virtue of section 59(4), be subject to the negative resolution procedure.
201.Under subsection (1), an order may exempt a particular person in respect of specified works on land identified in the order. Alternatively, an order may exempt such a person, or a class of persons, in respect of works of a particular type on any land, or on any specified category of land. ‘Person’ includes a body such as a local authority. Subsection (2) provides that the appropriate national authority may issue an exemption for specific works only if it is satisfied that the exempted works are necessary or expedient for any of the purposes in subsection (4), and subsection (3) provides that it may issue a generic exemption only if it is satisfied that the works are likely to be necessary or expedient for any of these purposes on any land, or on land of the type in question.
202.In addition, under subsections (5) and (6) an order may provide for an exemption in two cases where immediately before commencement, land was exempted from the operation of section 194 of the Law of Property Act 1925:
under subsection (3)(a) of that section, because the rights of common had been extinguished under any statutory provision(44), or
by a resolution made by the local authority under subsection (3)(b) of that section, and confirmed by the Secretary of State (or the National Assembly for Wales, as the case may be).
203.An exemption for either purpose would ensure that common land to which the controls in section 194 had already been disapplied under subsection (3) of the 1925 Act, would not again become subject to the controls in section 38. Subsection (7) enables the appropriate national authority to provide in the order that any exemption will apply only to works carried out in accordance with the terms of the order.
See, for example, section 1 of the Defence Act 1854, which enables the Secretary of State for Defence to compulsorily acquire rights of common over common land acquired under the Defence Act 1842.
