Schedule 3 – Main powers in relation to land of the HCA
925.Part 1 of Schedule 3 makes provision in respect of powers to override easements.
926.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.
927.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.
928.Part 2 of Schedule 3 makes provision in respect of powers to extinguish public rights of way.
929.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.
930.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.
931.The Secretary of State must be satisfied that an alternative right of way has been, or will be, provided, or the provision of an alternative right of way is not required.
932.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.
933.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.
934.Part 3 of Schedule 3 makes provision in relation to burial grounds and consecrated land etc.
935.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.
936.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.
937.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.
938.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.
939.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.
