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Coal Industry Act 1994

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E+W+S+N.I.

Coal Industry Act 1994

1994 CHAPTER 21

An Act to provide for the establishment and functions of a body to be known as the Coal Authority; to provide for the restructuring of the coal industry, for transfers of the property, rights and liabilities of the British Coal Corporation and its wholly-owned subsidiaries to other persons and for the dissolution of that Corporation; to abolish the Domestic Coal Consumers’ Council; to make provision for the licensing of coal-mining operations and provision otherwise in relation to the carrying on of such operations; to amend the Coal Mining Subsidence Act 1991 and the Opencast Coal Act 1958; and for connected purposes.

[5th July 1994]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Modifications etc. (not altering text)

C1Act amended (1.4.1996) by S.I. 1996/593, reg. 2, Sch. 1

Commencement Information

I1Act partly in force: Specified provisions in force at 19.9.1994 by S.I. 1994/2189, art. 2, Sch.; Act partly in force at 31.10.1994 by S.I. 1994/2552, art. 2 Sch. 1; Act in force for specified purposes at 31.10.1994 by S.I. 1994/2553, art. 2; Act in force for specified purposes at 24.12.1994 by S.I. 1994/3063, art. 2; Act in force for specified purpose at 31.1.1994 by S.I. 1995/159, art. 2; Act partly in force at 1.3.1995 by S.I. 1995/273, art. 2 Sch.; Act partly in force at Royal Assent see s. 68.

Part IE+W+S+N.I. Re-organisation of Coal Industry

The Coal AuthorityE+W+S

1 Establishment of the Coal Authority.E+W+S

(1)There shall be a body corporate to be known as the Coal Authority (in this Act referred to as “the Authority”) for the purpose of—

(a)holding, managing and disposing of interests and rights in or in relation to the unworked coal and other property which is transferred to or otherwise acquired by it by or under this Act;

(b)carrying out functions with respect to the licensing of coal-mining operations;

(c)carrying out functions with respect to coal-mining subsidence and in connection with other matters incidental to the carrying on of any opencast or other coal-mining operations;

(d)facilitating the establishment and maintenance of arrangements for the information to which persons are to be entitled under this Act to be made available to them; and

(e)carrying out the other functions conferred on it by virtue of this Act.

(2)The Authority shall consist of not less than two nor more than eight members appointed by the Secretary of State.

(3)The Secretary of State shall designate one of the members appointed under this section as the chairman of the Authority and may, if he thinks fit, designate another such member as its deputy chairman.

(4)In appointing a person to be a member of the Authority, the Secretary of State shall have regard to the desirability of appointing a person who has experience of, and has shown capacity in, some matter relevant to its functions.

(5)The Authority shall not be regarded—

(a)as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown; or

(b)by virtue of any connection with the Crown, as exempt from any tax, duty, rate, levy or other charge whatsoever, whether general or local;

and the Authority’s property shall not be regarded as property of, or property held on behalf of, the Crown.

(6)The provisions of Schedule 1 to this Act shall have effect with respect to the Authority and its finances.

2 Duties of the Authority with respect to licensing.E+W+S

(1)It shall be the duty of the Authority to carry out its functions under Part II of this Act in the manner that it considers is best calculated to secure, so far as practicable—

(a)that an economically viable coal-mining industry in Great Britain is maintained and developed by the persons authorised by virtue of that Part to carry on coal-mining operations;

(b)that such persons are able to finance both the proper carrying on of the coal-mining operations that they are authorised to carry on and the discharge of liabilities arising from the carrying on of those operations; and

(c)that persons to whom obligations are owed in respect of subsidence damage caused at any time (whether before or after the passing of this Act) do not sustain loss in consequence of any failure by a person who is or has been a licensed operator to make such financial provision for meeting present and future liabilities as might reasonably have been required of that person.

(2)Subject to section 4 below, it shall be the duty of the Authority, in carrying out its functions under Part II of this Act, to have regard to the desirability of securing—

(a)that persons authorised by virtue of that Part to carry on coal-mining operations are persons who have at their disposal such experience and expertise in the carrying on of such operations as are appropriate for ensuring that any authorised operations are properly carried on; and

(b)that competition is promoted between the different persons carrying on, or seeking to carry on, coal-mining operations.

(3)It shall also be the duty of the Authority, in carrying out its functions under Part II of this Act in cases where it appears that subsidence damage may be caused to any land or other property that does not consist in unworked coal or in a coal mine, to have regard—

(a)to the extent of the damage which is likely to be caused; and

(b)to the character of the land or other property in question and to the uses to which it is or is likely to be put.

3 Duties of the Authority with respect to property.E+W+S

(1)It shall be the duty of the Authority, in carrying out the functions mentioned in section 1(1)(a) above, to have regard to—

(a)the need to co-ordinate its practice in relation to relevant property dealings with the carrying out of its functions under Part II of this Act; and

(b)the need to secure the safety of members of the public.

(2)Subject to subsection (4) below, it shall be the duty of the Authority, so far as practicable, to make available for acquisition by others such of its land and other property as—

(a)does not consist in an interest in any unworked coal or coal mine;

(b)is not being put to a use which justifies its retention by the Authority; and

(c)in the opinion of the Authority, is unlikely to be required for any such use.

(3)For the purposes of subsection (2) above the only uses for land and other property which justify its retention by the Authority are—

(a)use by any person for or in connection with the carrying on of any coal-mining operations; and

(b)use by the Authority in connection with the administration of its own activities or with the management of the land and other property which it is entitled to retain or is unable to dispose of;

and for this purpose the management of land and other property shall include the performance of every obligation to which the Authority is subject in relation to any of that land or other property.

(4)Subject to subsection (6) below, it shall be the duty of the Authority, where it disposes of any interests or rights in or in relation to any land or other property, to secure the best terms reasonably available for the disposal.

(5)Subject to subsection (6) below, it shall be the duty of the Authority, in the exercise and performance of its powers and duties with respect to its land and other property, to have regard to the desirability of the exploitation, so far as that is economically viable, of coal-bed methane in Great Britain.

(6)It shall be the duty of the Authority, in determining the terms on which it may dispose of any interest or right in or in relation to any unworked coal or coal mine to a person who requires the interest or right for purposes connected with activities to be carried on under the authority of a licence under [F1section 3 of the Petroleum Act 1998], to act in accordance with such arrangements and principles as it may, with the approval of the Secretary of State, have determined for the purposes of subsection (5) above.

(7)It shall be the duty of the Authority, in formulating any proposals for works on or in relation to any of its land or other property which has been used for the carrying on of any coal-mining operations but is no longer to be put to such use—

(a)to have regard to the desirability of preserving natural beauty, of conserving flora and fauna and geological or physiographical features of special interest and of protecting sites, buildings, structures and objects of architectural, historic or archaeological interest; and

(b)to take into account the effect of the proposals on the natural beauty of any area or on any such flora, fauna, features, sites, buildings, structures or objects.

(8)In this section “relevant property dealings”, in relation to the Authority, means the grant of such interests and rights in or in relation to its land or other property as appear to it to be appropriate for the purpose of enabling or facilitating its use for, or in connection with, the carrying on of any coal-mining operations.

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Amendments (Textual)

4 Duty of the Authority with respect to safety.E+W+S

(1)It shall be the duty of the Authority—

(a)in conjunction with the Health and Safety Executive, to prepare and from time to time revise a document setting out such means as may, with the approval of the Health and Safety Commission, be agreed between the Authority and that Executive for securing co-operation and the exchange of information between them; and

(b)without prejudice to the effect or operation of any relevant statutory provisions (within the meaning of Part I of the M1Health and Safety at Work etc. Act 1974), to conduct itself in the carrying out of its functions in accordance with any agreement contained in that document.

(2)As soon as practicable after agreement is reached for the purposes of—

(a)the preparation of a document in accordance with subsection (1) above, or

(b)any revision of a document prepared in accordance with that subsection,

the Authority shall send a copy of the document or, as the case may be, of the revised version of it to the Secretary of State, and the Secretary of State shall lay the copy before each House of Parliament.

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Marginal Citations

5 General powers of the Authority.E+W+S

(1)Subject to subsections (6) and (7) below, the Authority shall have power to do anything which, in the opinion of the Authority, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions.

(2)Subject to subsections (6) and (7) below, the powers of the Authority shall include power, for the purposes of or in connection with the carrying out of its functions—

(a)to acquire land by agreement and to hold and dispose of land; and

(b)in exercise of rights attached to its interests in land, or of any such rights in relation to other land as are granted to it by the owner or occupier, to carry out any works on or with respect to land.

(3)Subject to subsection (7) below, where the Authority has land which it is required under this Act to make available for acquisition by others, its powers shall include—

(a)power, in exercise of any rights attached to its interest in the land, to develop or improve the land, or to join with others in developing or improving the land, with a view to its disposal for use or enjoyment by another; and

(b)power by agreement to acquire other land with a view (with or without developing or improving it) to disposing of the other land together with the land in question.

(4)The powers of the Authority shall include power to enter into arrangements with a person who is or has been a licensed operator to act on that person’s behalf in relation to any of the following matters, that is to say—

(a)the giving and publication of notices under or for the purposes of section 38 or 49 below or any provisions of the 1991 Act; or

(b)the handling of any matter arising under the 1991 Act and the performance of that person’s obligations in relation to any subsidence damage.

(5)The powers of the Authority shall include power, where it—

(a)provides a service to anyone in the course of the exercise or performance of its powers or duties,or

(b)receives any application for the grant of, or any offer for, any such interest or right in or in relation to any of its land or other property as may be required by any person for the purpose of exploring for coal or of carrying on coal-mining operations,

to make a charge for the provision of that service or, as the case may be, for considering that application or offer.

(6)The Authority shall not have power—

(a)for commercial purposes or with a view to itself using any coal or product of coal, to carry on any coal-mining operations consisting in—

(i)the winning, working or getting (with or without other minerals) of any coal,

(ii)the treatment of coal in the strata for the purpose of winning any product of coal, or

(iii)the winning, working or getting of any product of coal resulting from such treatment;

or

(b)with a view to any such operations being so carried on by the Authority or any other person, to explore for coal or, subject to subsection (4) above, to take any steps for the benefit of another for obtaining planning permission or any other authorisation required for carrying on coal-mining operations.

(7)The Authority shall not—

(a)acquire any land or acquire or hold shares in or other securities of any body corporate or otherwise become a member of a body corporate, or

(b)lend money to any person or guarantee or otherwise provide security for a loan made to any person,

except with the agreement of the Secretary of State.

(8)The consent of the Treasury shall be required for the giving of the Secretary of State’s agreement under subsection (7) above.

(9)Subsections (2) to (5) above shall be without prejudice to the generality of subsection (1) above.

6 Directions to the Authority by the Secretary of State.E+W+S

(1)It shall be the duty of the Authority to comply with such directions of a general character as may be given to it by the Secretary of State with respect to the carrying out of any of its functions, or to its activities generally.

(2)It shall be the duty of the Authority to comply with such specific directions as may be given to it by the Secretary of State with respect to—

(a)whether or not it exercises any of its powers and the manner in which any of its powers is to be exercised;

(b)the manner in which any of its duties is to be performed; or

(c)any other conduct by the Authority in connection with the carrying out of any of its functions or with its activities generally.

(3)Without prejudice to the generality of the preceding provisions of this section, directions under this section may be given, in relation to any information which is in the possession of or available to the Authority, requiring the Authority to do one or both of the following, that is to say—

(a)publish it in such manner as may be described in the direction;

(b)furnish it, together with such explanations as he may reasonably require, to the Secretary of State.

(4)A direction under this section shall not authorise the publication of any information if, apart from the direction, the publication of that information would be in contravention of arrangements for the time being in force for the purposes of section 59 below.

(5)The power to give a direction under this section shall be exercisable, except in an emergency, only after consultation with the Authority.

The Corporation’s exploitation rightsE+W+S+N.I.

7 Exploitation rights: general.E+W+S+N.I.

(1)From the passing of this Act until such date as the Secretary of State may by order made by statutory instrument appoint for the purposes of this section (“the restructuring date”), section 36 of the 1946 Act (power of the Corporation, subject to limits contained in subsection (2)(a) and (c), to grant licences by way of exception to its exclusive rights) shall have effect with the omission—

(a)in subsection (2)(a), of the words from “with respect to which” to “150”; and

(b)in subsection (2)(c), of the words from “where” to “250,000 tonnes”.

(2)On the restructuring date the Corporation shall cease to have the exclusive right, under section 1 of the 1946 Act, of searching for, boring for, working and getting coal in Great Britain.

(3)On the restructuring date the Corporation’s interests in unworked coal and coal mines, including its interests in any coal that, notwithstanding having been worked at some time, is so attached to or incorporated in any coal mine or other land as to be, in law, a part of it, shall vest without further assurance in the Authority.

(4)Subsection (3) above shall have effect subject to sections 8 and 9 below and to the powers conferred by virtue of section 12(1) below and, in its application to Scotland, shall have effect with the omission of the words “without further assurance”.

(5)The Secretary of State shall not under this section appoint a date as the restructuring date unless he is satisfied that such schemes have been or are to be made under section 12 below as will ensure that the Authority is entitled or subject, from that date, to all such property, rights and liabilities as it requires for carrying out the functions which become its functions on that date.

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Subordinate Legislation Made

P1Power exercised (31.10.1994 appointed as the restructuring date for the purposes of this Act) by S.I. 1994/2553, art. 2

8 Exploitation rights: territorial waters and continental shelf.E+W+S+N.I.

(1)Subject to section 9 below, the interests in unworked coal and coal mines which are vested in the Corporation immediately before the restructuring date shall be deemed to include—

(a)the interests and rights of a freehold owner in and in relation to any such coal under the territorial sea adjacent to the United Kingdom as is coal with respect to which the Corporation has rights immediately before that date by virtue of section 1 of the M2Continental Shelf Act 1964, as read with section 2(3) of the M3Territorial Sea Act 1987; and

(b)the exclusive right, for the purposes of the rights of the United Kingdom mentioned in section 1(1) of that Act of 1964 and without the consent of the Secretary of State, of authorising the carrying on, in relation to the coal in any designated area, of any of the coal-mining operations to which section 25 below applies or of any operation carried on for the purpose of searching or boring for coal.

(2)Section 7(3) above shall not vest in the Authority any interest or rights in or in relation to any coal or coal mines outside Great Britain and the territorial sea adjacent to Great Britain except those mentioned in subsection (1)(b) above.

(3)Where on the coming into force on or after the restructuring date of any Order in Council under section 1 of the M4Territorial Sea Act 1987 any area outside the United Kingdom and the territorial sea adjacent to the United Kingdom is brought within that territorial sea, that Order in Council shall have the effect of vesting the interests and rights of a freehold owner in and in relation to coal under the seabed in that area in such person as may be specified in the Order in Council or, if no person is so specified, in the Authority.

(4)Nothing shall be vested in any person by virtue of subsection (3) above which would by virtue of section 9 below have been excluded, had the Order in Council come into force before the restructuring date, from the interests and rights which are deemed to be vested in the Corporation immediately before that date.

(5)In this section “designated area” means any area which is for the time being both outside the territorial sea adjacent to the United Kingdom and comprised in an area designated (whether before or after the beginning of the restructuring date) under section 1(7) of the M5Continental Shelf Act 1964.

(6)References in this section to the interests and rights of a freehold owner shall be construed, in relation to any coal the interests or rights in or in relation to which fall to be determined according to the law of Scotland, as references to the interests and rights of a proprietor of thedominium utile.

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Marginal Citations

9 Exploitation rights: oil and gas.E+W+S+N.I.

(1)It is hereby declared, without prejudice to [F2section 9(1) of the Petroleum Act 1998] (petroleum set free in the course of mining and other lawful operations), that the interests and rights which are vested or deemed to be vested in the Corporation immediately before the restructuring date do not include—

(a)any interest in, or any entitlement to an interest in, any oil or gas which, in its natural condition in strata, is or becomes absorbed in or adsorbed to any coal; or

(b)any right, without a licence under [F3section 3 of that Act of 1998], to search for, bore for or get any oil or gas which is or becomes so absorbed or adsorbed.

(2)Accordingly, nothing in any enactment or subordinate legislation relating to interests or rights in or in relation to any coal, or in or in relation to any oil or gas, shall be taken to have prevented any such interest or entitlement as is mentioned in subsection (1)(a) above from having become by virtue of any enactment or subordinate legislation, or from continuing to be, an interest or entitlement of the Crown.

(3)The exclusions confirmed by virtue of the preceding provisions of this section from the interests and rights which are vested or deemed to be vested in the Corporation immediately before the restructuring date shall not, in the case of any coal won, worked, treated or got in pursuance of any of those interests or rights, be taken to have, or at any time to have had, the effect of giving rise to any liability in respect of the winning, working, treatment, getting or disposal of—

(a)any of that coal having oil or gas occluded in it at the time of its being brought from the strata to the surface or, as the case may be, of its treatment in the strata; or

(b)any product of that coal resulting from any such treatment.

(4)So long as the Authority retains—

(a)the interest of a freehold owner in any coal or coal mine vested in it by virtue of section 7(3) above, or

(b)in Scotland, the interest of proprietor of thedominium utile as respects any such coal or coal mine,

the ownership of the coal or coal mine or, as the case may be, the possession of the interest of such a proprietor shall entitle the Authority to grant such rights in relation to that coal or coal mine as are required by any person for the purpose, under the authority of any licence which has been or may be granted to that person under section 2 of the Petroleum (Production) Act 1934 [F4or section 3 of the Petroleum Act 1998], of searching for, boring for or getting any oil or gas in that coal or coal mine.

(5)The grant under subsection (4) above to any person of any rights—

(a)shall, in favour of that person, bind any other person who has or acquires an interest or right in or in relation to the coal or coal mine in question; but

(b)shall be without prejudice, in a case where there is a person other than the Authority with an interest or right in that coal or coal mine at the time of the grant, to any such person’s rights as against the Authority in respect of—

(i)any interference by virtue of the grant with the enjoyment of his interest or right; or

(ii)any contravention of an undertaking given in relation to that interest or right.

(6)In this section “oil or gas” means—

(a)any mineral oil or any relative hydrocarbon which, in its natural state, is not a solid; or

(b)methane or any other natural gas.

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Amendments (Textual)

F2Words in s. 9(1) substituted (15.2.1999) by 1998 c. 17, s. 50, Sch. 4 para. 38(3)(a)(with Sch. 3 para. 5(1)); S.I. 1999/161, art. 2(1)

F3Words in s. 9(1)(b) substituted (15.2.1999) by 1998 c. 17, s. 50, Sch. 4 para. 38(3)(b)(with Sch. 3 para. 5(1)); S.I. 1999/161, art. 2(1)

F4Words in s. 9(4) inserted (15.2.1999) by 1998 c. 17, s. 50, Sch. 4 para. 38(3)(c)(with Sch. 3 para. 5(1)); S.I. 1999/161, art. 2(1)

10 Protection for certain interests in coal and coal mines.E+W+S

(1)This section applies to any coal or coal mine the ownership of which—

(a)is vested in the Corporation immediately before the restructuring date; and

(b)has not, at any time on or after that date, become vested in a person other than the Corporation or the Authority by virtue of being conveyed or transferred to that person either—

(i)by the Authority or the Corporation; or

(ii)in accordance with a scheme under section 12 below.

(2)No interest or right adverse to the title of the Authority or the Corporation in any coal or coal mine to which this section applies shall be capable of being acquired—

(a)under section 15 or 17 of the M6Limitation Act 1980 (time limits on actions to recover land and extinction of titles); or

(b)under section 1 or 2 of the M7Prescription and Limitation (Scotland) Act 1973 (prescriptive possession on ex facie valid deed).

(3)Subject to section 13(8) of the M8Gas Act 1965 (compulsory purchase for purposes of underground gas storage), where any power to acquire land compulsorily is conferred by or under any enactment (including, unless it otherwise provides, an enactment passed after this Act), that power shall not be exercisable on or after the restructuring date in respect of any coal or coal mine to which this section applies except in so far as—

(a)the coal is coal that it is necessary to dig or carry away in the course of operations for the purposes of which the power is conferred; or

(b)the coal mine is one that it is necessary to use in the course of any such operations.

(4)Subsections (2) and (3) above, in their application to England and Wales, shall not restrict the acquisition as mentioned in either of those subsections of any such liberty, privilege, easement, advantage or other right as adversely affects any coal or coal mine to which this section applies and is either annexed to any land or, without being so annexed, is acquired under any enactment.

(5)Subsection (3) above, in its application to Scotland, shall not restrict the acquisition, as mentioned in that subsection—

(a)of any such servitude as adversely affects any coal or coal mine to which this section applies; or

(b)of any other right so affecting (but not adverse to the title in) such coal or coal mine.

(6)For the purposes of subsection (4) above the reference to a liberty, privilege, easement, advantage or other right being annexed to any land is a reference to its appertaining to that land or any part of it, to its being demised, occupied or enjoyed with that land or any part of it or to its being reputed or known as part or parcel of the land or as appurtenant to the land or to any part of it.

(7)The reference in subsection (1) above to the ownership of any coal or coal mine is a reference—

(a)in relation to England and Wales, to the interest of the freehold owner of that coal or coal mine; and

(b)in relation to Scotland, to the interest as respects that coal or coal mine of proprietor of the dominium utile.

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Modifications etc. (not altering text)

C2S. 10(3) applied (28.7.1998) by 1998 c. iii, s. 1, Sch., Order 40(2).

Marginal Citations

Restructuring of the Corporation’s undertakingE+W+S+N.I.

Prospective

11 Restructuring of the Corporation’s functions.E+W+S

(1)On and after the restructuring date the Corporation shall continue to exist until dissolved under section 23 below but with its functions confined to—

(a)carrying on its undertaking for the time being, and

(b)managing and otherwise dealing with the interests and rights in or in relation to property which are for the time being vested in it,

in such manner as, having regard to what is economically viable, it considers is best calculated for the purposes specified in subsection (2) below.

(2)The purposes mentioned in subsection (1) are those of securing—

(a)that all of the Corporation’s undertaking and property is in due course transferred out of the ownership and control of the Corporation;

(b)that any transfers for the removal of any of that undertaking or property from the ownership or control of the public sector are on the best available terms; and

(c)that the Corporation’s undertaking and property are put to the best available use for so long as they remain in its ownership or under its control.

(3)Where the Secretary of State notifies his opinion to the Corporation as to—

(a)what is economically viable in any case,

(b)the activities most likely to secure that any transfer for the removal of any of the Corporation’s undertaking, or any property, from the ownership or control of the public sector will be on the best available terms, or

(c)the best available use to which any of the Corporation’s undertaking or property may be put while owned by or under the control of the Corporation,

the Corporation shall be required for the purposes of this section to accept that opinion.

(4)Subject to subsection (6) below, on and after the restructuring date the following powers, that is to say—

(a)the powers conferred on the Corporation by subsection (2) of section 1 of the 1946 Act (incidental activities) and described in that subsection as functions,

(b)those conferred on the Corporation by subsection (3) of that section (power to enter into certain transactions), and

(c)a power, so far as not comprised in the powers conferred by subsection (2) or (3) of that section, to carry on any activities consisting in or connected with the working or getting of coal,

shall be exercisable by the Corporation for the purposes of, and in connection with, the carrying out of the Corporation’s functions under subsection (1) above as they were exercisable, before the restructuring date, for or in connection with the discharge of its duties under subsection (1) of that section.

(5)The requirement for the matters secured under subsection (4) of section 1 of the 1946 Act (which specifies policy objectives for the Corporation) to be secured consistently with the proper discharge of the Corporation’s duties under subsection (1) of that section shall have effect on and after the restructuring date as a requirement for those matters to be secured consistently with the carrying out of the Corporation’s functions under subsection (1) above.

(6)On and after the restructuring date the Corporation—

(a)shall not be entitled to carry on any coal-mining operations in respect of which a licence under Part II of this Act is required except under and in accordance with such a licence;

(b)shall no longer have the powers conferred on it by the M9National Coal Board (Additional Powers) Act 1966 and section 9 of the M10Coal Industry Act 1977 (powers with respect to petroleum); and

(c)shall have no power, by virtue of the preceding provisions of this section, to carry on any business which it would not have had power to carry on apart from this Act.

(7)It shall be the duty of the Corporation to comply with such general or specific directions with respect to the exercise of any of its powers, or otherwise with respect to the carrying on of any of its activities, as may be given to it at any time by the Secretary of State.

(8)The consent of the Treasury shall be required for the giving of any notification for the purposes of subsection (3) above; and the power of the Secretary of State to give such a notification and his power to give directions under subsection (7) above shall each be exercisable, except in an emergency, only after consultation with the Corporation.

(9)Subsection (1) above shall be without prejudice to any powers conferred on the Corporation by the M11British Coal and British Rail (Transfer Proposals) Act 1993.

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Marginal Citations

12 Restructuring schemes in relation to property etc.E+W+S+N.I.

(1)The Secretary of State may, at any time before the restructuring date, make a scheme providing for the creation, as from that date, in favour of—

(a)the Corporation, or

(b)any person to whom any part of the Corporation’s undertaking is to be transferred on that date in accordance with a scheme under this section,

of such interests and rights in or in relation to any of the property transferred to the Authority by section 7(3) above as he thinks appropriate for the purposes of the Corporation’s functions on and after that date or, as the case may be, for the purposes of the carrying on by that person of the part of the Corporation’s undertaking which is to be transferred to him.

(2)The Secretary of State may from time to time make a scheme for the transfer of property, rights and liabilities from the Corporation or any of its wholly-owned subsidiaries to the Authority or to any one or more other persons who—

(a)have entered into an agreement under section 13 below to accept the transfers; or

(b)otherwise appear to him to be persons in whom it is appropriate to vest the property, rights and liabilities in question;

and the persons to whom a transfer may be made by virtue of paragraph (b) above shall include the Secretary of State himself.

(3)The consent of the Treasury shall be required for the making of any scheme under this section (“a restructuring scheme”).

(4)Subject to subsection (5) below, a restructuring scheme shall not, by virtue of subsection (2)(b) above, contain any provision in accordance with which any person other than—

(a)the Secretary of State,

(b)the Authority,

(c)the Corporation or any of its wholly-owned subsidiaries, or

(d)a company wholly owned by the Crown,

becomes entitled or subject to any property, rights or liabilities unless it appears to the Secretary of State that that person has consented to the provisions of the scheme so far as they relate to him.

(5)Subsection (4) above shall not require the consent of any person to so much of any restructuring scheme as—

(a)relates to property, rights or liabilities to which that person is already entitled or subject; and

(b)appears to the Secretary of State to be made for purposes that are no more than supplemental or incidental to the other provisions of the scheme.

(6)It shall be the duty of the Secretary of State, in exercising his powers under this section to make a restructuring scheme in accordance with which any person other than—

(a)a person mentioned in subsection (4)(a) to (d) above, or

(b)a body of whom all the members are appointed by a Minister of the Crown,

is to become subject to any liabilities, to have regard to the fact that it would not be appropriate for the scheme to provide for the transfer of any of those liabilities to any person except where it is reasonable to believe that that person is a person who will be able to finance their discharge.

(7)The Secretary of State—

(a)shall retain and preserve a copy of every restructuring scheme made under this section; and

(b)at the request of any person who, in accordance with such a scheme, has become entitled to any interest or right in or in relation to any property, shall furnish that person with a list of the names and addresses of the other persons who have become entitled to interests or rights in or in relation to property in accordance with that or with any other such scheme.

(8)Schedule 2 to this Act shall have effect with respect to restructuring schemes.

13 Agreements with respect to restructuring schemes.E+W+S+N.I.

(1)The Secretary of State may enter into any such agreement with another person as he thinks fit for the purpose of accepting or imposing contractual obligations with respect to, or to anything connected with, any or all of the following matters, that is to say—

(a)the manner and circumstances in which his powers by virtue of section 12 above are to be exercised; and

(b)the property, rights or liabilities to which any proposed restructuring scheme relates.

(2)An agreement under this section may, in particular, provide for the making of payments to the Corporation or the Secretary of State (by way of consideration or otherwise) in respect of anything created or transferred in accordance with a restructuring scheme.

(3)An agreement under this section may also contain provision in pursuance of which the Secretary of State binds himself as to the manner and circumstances in which he will exercise his power to give directions under section 11(7) above.

(4)The consent of the Treasury shall be required for the making of an agreement under this section.

(5)Any sums received by the Secretary of State in pursuance of an agreement under this section shall be paid into the Consolidated Fund.

14 Duty to assist in preparation of restructuring schemes.E+W+S

(1)It shall be the duty of the Corporation and of the Authority to furnish the Secretary of State with all such information and other assistance as he may require for the purposes of, or in connection with—

(a)the making of any restructuring scheme or of any agreement under section 13 above; or

(b)the exercise of any of his powers in relation to any such scheme.

(2)The assistance that may be required under this section in relation to the making of any scheme or agreement includes—

(a)assistance required by the Secretary of State in connection with the exercise of any power conferred on him by section 26(6) below; and

(b)the taking of any step which the Corporation has power to take for the purpose of facilitating the implementation of any proposals of the Secretary of State which involve the inclusion of anything in the scheme or agreement or otherwise relate, in connection with the making of the scheme or agreement, to the Corporation’s undertaking.

(3)The obligations of the Corporation under this section shall include a duty to secure, so far as practicable, that its subsidiaries furnish all such information and assistance as the Secretary of State may require for the purposes of, or in connection with, the making of any such scheme or agreement, or the exercise of any such power, as is mentioned in subsection (1) above.

(4)A duty under this section to furnish information or assistance, or to secure that it is furnished, shall be performed within such period after the requirement giving rise to the duty as the Secretary of State may allow.

The Corporation’s successorsE+W+S

15 Financial structure of successor companies.E+W+S

Schedule 3 to this Act (which makes provision as to the financial structure of the companies and related matters) shall have effect in relation to successor companies.

16 Target investment limit for Government holding in successor companies.E+W+S

(1)The following provisions of this section shall apply separately in relation to every successor company which is limited by shares.

(2)As soon as he considers it expedient, and in any case not later than six months after the date when the company ceases to be wholly owned by the Crown, the Secretary of State shall by order fix a target investment limit in relation to the aggregate of the shares in the company which are for the time being held by any of the following, that is to say, the Treasury, the Secretary of State or any nominee of the Treasury or the Secretary of State (“the Government shareholding”).

(3)The target investment limit for the Government shareholding in the company shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of that company (“the ordinary voting rights”).

(4)The first target investment limit fixed under this section for the Government shareholding in the company shall not exceed, by more than one half of one per cent. of the ordinary voting rights, the proportion of those rights which is carried by the Government shareholding in the company at the time when the order fixing the limit is made.

(5)The Secretary of State may from time to time by order fix a new target investment limit for the Government shareholding in the company in place of the one previously in force under this section; but—

(a)any new limit must be lower than the one it replaces; and

(b)an order under this section may be revoked only by an order fixing a new limit.

(6)It shall be the duty of the Treasury and of the Secretary of State so to exercise—

(a)their powers under paragraph 3 of Schedule 3 to this Act and any power to dispose of any shares in the company held by either of them, and

(b)their power to give directions to their respective nominees,

as to secure that the Government shareholding in the company does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this section.

(7)Notwithstanding subsection (6) above but subject to subsection (8) below, the Treasury or the Secretary of State may take up, or direct any of their respective nominees to take up, any rights for the time being available to them or him, or to that nominee—

(a)as an existing holder of shares in or other securities of the company; or

(b)by reason of the rescission of any contracts of sale of any such shares or securities.

(8)If, as a result of anything done under subsection (7) above, the proportion of the ordinary voting rights carried by the Government shareholding at any time exceeds the target investment limit, it shall be the duty of the Treasury or, as the case may be, the Secretary of State to comply with subsection (6) above as soon after that time as is reasonably practicable.

(9)For the purposes of this section the temporary suspension of any of the ordinary voting rights shall be disregarded.

(10)The consent of the Treasury shall be required for the exercise by the Secretary of State of any power conferred on him by this section; and the power to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Financial arrangements in connection with restructuringE+W+S

17 Grant-making powers.E+W+S

(1)The Secretary of State shall not—

(a)include provision in any restructuring scheme for the transfer to any person of a right to a grant or other payment specified in subsection (2) below; or

(b)make any such grant or payment at any time after such date as the Secretary of State may by order made by statutory instrument appoint for the purposes of this paragraph;

but different dates may be appointed for the purposes of paragraph (b) above in relation to different grants and payments.

(2)The grants and payments mentioned in subsection (1) above are—

(a)payments under section 4 of the M12Coal Industry Act 1967 or section 3 of the M13Coal Industry Act 1982 (payments providing re-imbursement of contributions to early retirement benefits etc.);

(b)payments under section 2 of the M14National Coal Board (Finance) Act 1976 (payments towards mineworkers’ pension scheme deficiency);

(c)grants under—

(i)section 6 of the M15Coal Industry Act 1977 (pit closure grants for certain financial years); or

(ii)section 4 of the M16Coal Industry Act 1987 (grants in respect of expenditure referable to costs incurred in those financial years or in respect of other approved expenditure);

(d)such payments under a scheme made in pursuance of section 7 of that Act of 1977 (payments to redundant workers or in respect of arrangements relating to concessionary coal) as may be made otherwise than to persons to whom the scheme applies in accordance with subsection (1) of that section;

(e)grants under section 3 of that Act of 1987 (grants for workforce redeployment and reduction etc.);

(f)grants under section 1 of the M17Coal Industry Act 1990 (deficiency grants).

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Marginal Citations

Prospective

18 Residual payments grant.E+W+S

(1)The Secretary of State may, with the approval of the Treasury, make payments by way of grant (“residual payments grant”) to—

(a)the Corporation, or

(b)any successor company which is for the time being wholly owned by the Crown,

with a view to reducing or eliminating any amount falling to be shown in any accounts of the Corporation or that company as a deficit on its cash flow for any accounting period.

(2)The payment of residual payments grant may be made by advancing sums during any accounting period in anticipation of what it appears will be the deficit on cash flow for that period.

(3)Residual payments grant shall not be paid to any person in respect of any deficit which appears to the Secretary of State to be attributable to any failure of the Corporation to be paid, or to apply for, any amount which could have been paid, or would have been payable, to the Corporation by way of any payment or grant mentioned in subsection (2) of section 17 above.

(4)Where payments by way of residual payments grant have been made to the Corporation or any successor company and it appears to the Secretary of State that, after those payments have been taken into account in relation to the accounting period in respect of which they are made, there is a surplus on its cash flow for that accounting period or for any subsequent accounting period, an amount equal to whichever is the smaller of—

(a)so much of the aggregate amount of payments made by way of grant under this section to the Corporation or, as the case may be, that company as has not already been repaid under this subsection, and

(b)the amount of the surplus,

shall be paid by the Corporation or, as the case may be, that company to the Secretary of State.

(5)Any sums falling to be paid to the Secretary of State under subsection (4) above shall bear interest at such rate as the Secretary of State may, with the consent of the Treasury, determine.

(6)No amount shall fall to be paid to the Secretary of State under subsection (4) or (5) above in respect of any surplus on the cash flow of any successor company for any accounting period ending after the company has ceased to be wholly owned by the Crown; but a successor company which ceases to be wholly owned by the Crown shall be deemed to be required to produce accounts for the purposes of this section for the period between the end of its previous accounting period and the time when it ceases to be wholly owned by the Crown.

(7)Any sums required by the Secretary of State for making any grant under this section shall be paid out of money provided by Parliament; and any sums received by the Secretary of State by virtue of subsections (4) and (5) above shall be paid into the Consolidated Fund.

(8)Subject to subsection (6) above, in this section “accounting period”, in relation to the Corporation or any successor company, means any period for which the Corporation or that company is required by or under any enactment to produce accounts.

19 Concessionary coal.E+W+S

(1)The Secretary of State may, out of money provided by Parliament, make such payments to such persons as he may think fit for the purpose of securing any of the following, that is to say—

(a)that supplies of concessionary coal are made on and after the restructuring date to persons who would have received such supplies from the Corporation under relevant arrangements if those arrangements had not been affected by steps taken in connection with the restructuring of the coal industry;

(b)that provision is made for sums to be paid in lieu of concessionary coal to persons such as are mentioned in paragraph (a) above; and

(c)that provision is made for sums to be so paid to persons who (but for any steps so taken) would, under relevant arrangements, have received payments in lieu of concessionary coal.

(2)The consent of the Treasury shall be required for the making of payments under this section.

(3)In this section—

  • concessionary coal” means coal or other solid fuel supplied free of charge or at reduced prices; and

  • relevant arrangements” means any arrangements which—

    (a)

    whether or not they are legally enforceable, are in operation immediately before the restructuring date; and

    (b)

    provide for the supply of concessionary coal or for the making of payments in lieu of concessionary coal.

20 Extinguishment of loans to the Corporation.E+W+S

(1)Where—

(a)any sum has been lent (whether before or after the passing of this Act) to the Corporation out of money provided by Parliament, or

(b)any sum is for the time being to be taken as having been so lent,

the Secretary of State may by order extinguish any present or contingent liabilities of the Corporation to make repayments of capital or payments of interest in respect of that sum.

(2)Subject to the following provisions of this section, section 400(1) of the M18Income and Corporation Taxes Act 1988 (restriction of tax losses in case of any write-off of government investment) shall not have effect in relation to any extinguishment of liabilities by an order under subsection (1) above.

(3)Subsection (6) of section 400 of that Act of 1988 shall apply in relation to any such extinguishment as is mentioned in subsection (2) above as if the reference to the body in question were a reference to the Corporation.

(4)The consent of the Treasury shall be required for the making of an order under this section.

(5)The power to make an order under subsection (1) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

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Marginal Citations

21 Taxation effects of restructuring.E+W+S

Schedule 4 to this Act (which makes provision about taxation in relation to provisions contained in, or made in connection with, a restructuring scheme) shall have effect.

22 Pensions and miners’ welfare organisations.E+W+S

(1)Schedule 5 to this Act (which makes provision, in connection with the restructuring of the Corporation’s undertaking, in relation to the pensions paid to or in respect of its present and former employees and other persons) shall have effect.

(2)The M19Miners’ Welfare Act 1952 shall cease to have effect.

(3)Subsection (3) of section 12 of that Act of 1952 (transfer of the functions under that Act of the Coal Industry Social Welfare Organisation) shall have effect, pending its ceasing to have effect under subsection (2) above, as if the reference to that Organisation’s functions under that Act were a reference to all its functions, whether or not under that Act.

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Commencement Information

I2S. 22 (except subsection (2)) in force at 31.10.1994 by S.I. 1994/2552, art. 2, Sch.

Marginal Citations

Reduction in membership and dissolution of the CorporationE+W+S

23 Reduction in membership and dissolution of the Corporation.E+W+S

(1)As from such date as the Secretary of State may by order appoint—

(a)the minimum number of members of the Corporation, in addition to the chairman, shall be one;

(b)the requirements of section 2(3) of the 1946 Act and section 1(2) of the M20Coal Industry Act 1949 as to the persons from amongst whom members of the Corporation are to be appointed shall cease to have effect;

(c)there shall be no requirement for a member of the Corporation to be appointed to act as its deputy chairman; and

(d)the Secretary of State may at any time, if he considers it appropriate to do so in consequence of the coming into force of any provision of this Act or of any restructuring scheme, by notice in writing remove from office any member of the Corporation, including the chairman;

and different dates may be appointed under this subsection for the purposes of its different paragraphs.

(2)As soon after the restructuring date as it appears to the Secretary of State that it is no longer necessary for the Corporation to continue to exist, he may by order dissolve the Corporation on a day specified in the order (“the dissolution date”).

(3)Where an order under subsection (2) above provides for the Corporation to be dissolved with effect from a time which would not, apart from this subsection, be the end of a financial year of the Corporation, the financial year of the Corporation which is current at that time shall be deemed to end at that time and that order may contain such provision as the Secretary of State thinks fit for modifying the effect of any enactment with respect to—

(a)the preparation of accounts for the financial year of the Corporation ending with its dissolution; and

(b)the making and laying before Parliament of a final report relating to the carrying out of the Corporation’s functions during that financial year.

(4)The Secretary of State shall consult the Corporation and the Authority before making an order dissolving the Corporation.

(5)Where any person ceases, by virtue of any provision of this section, to be the chairman or a member of the Corporation before his term of office would otherwise have expired—

(a)the Secretary of State shall, with the consent of the Treasury, determine an amount to be paid to that person by way of compensation for loss of office; and

(b)any amount determined under paragraph (a) above shall be paid to that person—

(i)in the case of loss of office by virtue of a notice under subsection (1)(d) above, by the Corporation; and

(ii)in the case of loss of office by virtue of the dissolution of the Corporation, by the Secretary of State out of money provided by Parliament.

(6)Without prejudice to the generality of the powers conferred by virtue of section 12 above, where provision is made by any restructuring scheme for the transfer to any person of any liability of the Corporation under subsection (5) above or under subsection (6) of section 2 of the 1946 Act (salaries, pensions etc. for members), the subsection in question shall have effect subject to the transfer, and the transferred liability shall continue to have effect notwithstanding the coming into force on the dissolution date of any repeal made by this Act.

(7)Any power to make an order under this section shall be exercisable by statutory instrument; and an order dissolving the Corporation shall not be amended or revoked by any order made on or after the dissolution date.

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Commencement Information

I3S. 23 partly in force: s. 23 not in force at Royal Assent but in force on the restructuring date, see s. 68; 31.10.1994 appointed as the restructuring date for the Act, see S.I. 1994/2553, art. 2; S. 23(1)(a)(b)(c)(d) in force at 30.6.1995 by S.I. 1995/1507, art. 3

Marginal Citations

Abolition of the Domestic Coal Consumers’ CouncilE+W+S

24 Abolition of the Domestic Coal Consumers’ Council.E+W+S

(1)The Domestic Coal Consumers’ Council shall cease to exist on such day as the Secretary of State may by order made by statutory instrument appoint.

(2)The Secretary of State may, out of money provided by Parliament, pay such compensation to the person who is the chairman of the Domestic Coal Consumers’ Council when it ceases to exist as the Secretary of State may determine to be appropriate in respect of that person’s loss of office.

(3)The consent of the Treasury shall be required for the making of a determination under subsection (2) above.

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Subordinate Legislation Made

P2Power exercised (1.3.1995) by S.I. 1995/255, art. 2

Part IIE+W+S Licensing of Coal-mining Operations

Coal-mining operations to be licensedE+W+S

25 Coal-mining operations to be licensed.E+W+S

(1)Subject to subsection (3) below, coal-mining operations to which this section applies shall not, at any time on or after the restructuring date, be carried on by any person except under and in accordance with a licence under this Part.

(2)This section applies to any coal-mining operations in so far as they—

(a)consist in the winning, working or getting (with or without other minerals) of any coal, in the treatment of coal in the strata for the purpose of winning any product of coal or in the winning, working or getting of any product of coal resulting from such treatment;

(b)are carried on in relation to coal in any part of Great Britain, in relation to coal under the territorial sea adjacent to Great Britain or in relation to coal in any designated area; and

(c)are neither carried on exclusively for the purpose of exploring for coal nor confined to the digging or carrying away of coal that it is necessary to dig or carry away in the course of activities carried on for purposes which do not include the getting of coal or any product of coal.

(3)Subject to the following provisions of this Act and to the provisions of any restructuring scheme, where—

(a)a licence under subsection (2) of section 36 of the 1946 Act (licences from the Corporation to work or get coal) is in force immediately before the restructuring date, and

(b)that licence authorises the carrying on of any coal-mining operations to which this section applies,

the authorisation contained in that licence shall have effect on and after that date as an authorisation for the carrying on of those operations without a licence under this Part and, accordingly, so as to prevent the carrying on of any operations under and in accordance with that authorisation from constituting a contravention of subsection (1) above.

(4)Where any authorisation has effect in accordance with subsection (3) above, it shall so have effect, except to the extent that a restructuring scheme otherwise provides—

(a)subject to the same conditions and to the same powers of revocation and other provisions for expiry and termination as, immediately before the restructuring date, applied to the licence under section 36(2) of the 1946 Act; but

(b)as if the powers of the Corporation under that licence were powers of the Authority.

(5)In this section “designated area” has the same meaning as in section 8 above.

Licences under Part IIE+W+S

26 Grant of licences.E+W+S

(1)Subject to subsection (6) below, it shall be the Authority which shall have the power to grant a licence under this Part.

(2)An application for a licence under this Part may be made by any person who has acquired, or is proposing to acquire, (whether from the Authority or some other person)—

(a)such an interest in land comprised in the area with respect to which the application is made,or

(b)such rights in relation to coal in that area,

as, apart from the need for a licence, would entitle him to carry on the coal-mining operations to which the application relates.

(3)Where any area of Great Britain, of the territorial sea adjacent to Great Britain or of the continental shelf is one—

(a)interests or rights in or in relation to the whole or any part of which may be acquired (in addition to any such rights as may be contained in a licence under this Part) from the Authority, and

(b)in relation to which the Authority considers that it is appropriate to do so,

the Authority may issue such specific or general invitations as it thinks fit for applications or, as the case may be, further applications to be made in respect of that area for the grant of licences under this Part.

(4)An applicant for a licence under this Part shall pay to the Authority such fee (if any) in respect of the Authority’s handling of that application as, having regard to—

(a)the nature of the application, and

(b)any information published under section 30 below with respect to the fixing of the fees for handling applications,

the Authority may reasonably require.

(5)Without prejudice to the Authority’s power (subject to its duties under sections 2 to 4 above) to take into account all such factors as it thinks fit in determining whether, and subject to what conditions, to grant a licence under this Part, the factors that may be taken into account shall include, in particular, the terms on which the applicant, or any other applicant with respect to the same area, is offering to acquire from the Authority any such interests or rights as are mentioned in subsection (2) above.

(6)Where—

(a)provision is made by any restructuring scheme for any interest or rights in or in relation to any coal or coal mine to be created in any person’s favour or to be transferred to any person, and

(b)that person requires the interest or rights for the purpose of enabling him to continue, resume or begin the carrying on (whether from the coming into force of the scheme or from some future time) of any coal-mining operations,

this Act shall have effect as if the Secretary of State, as well as the Authority, was entitled, at any time before the coming into force of the scheme, to exercise the Authority’s power to grant a licence to that person authorising the carrying on of those operations and, for that purpose, was entitled to act on the Authority’s behalf in the exercise of any of its other powers.

27 Authorisation contained in licence.E+W+S

(1)The provisions of a licence under this Part shall specify or describe the coal-mining operations which, subject to its conditions, are authorised by the licence.

(2)The provisions included in a licence in pursuance of subsection (1) above —

(a)shall identify the area of Great Britain, of the territorial sea adjacent to Great Britain or of the continental shelf where the operations are to be carried on; and

(b)may restrict the authorisation contained in the licence to operations carried on within such period as may be specified in the licence or as may be determined in a manner so specified;

and provision made by virtue of paragraph (a) above may include restrictions as to the depth at which any operations are to be carried on.

(3)Without prejudice to the generality of subsection (2)(b) above, a licence under this Part may provide—

(a)for the coming into force of the authorisation contained in the licence, or of any conditions or other provisions of the licence, to be postponed until after the acquisition by the holder of the licence of any interest or right in or in relation to any land or other property or until after such other requirements as may be specified or described in the licence have been satisfied; and

(b)for the licence to lapse if the interest or right is not acquired, or the other requirements are not satisfied, within such period as may be so specified.

(4)Without prejudice to subsection (5) below, the persons who, so long as the authorisation remains in force, are authorised to carry on the operations to which a licence under this Part relates are the holder of the licence and such other persons as may be authorised by the licence or, without any contravention of the conditions of the licence, by the holder of the licence to carry on those operations on his behalf.

(5)A licence under this Part may contain provision which, in such cases, in such manner and subject to such conditions or consents as may be specified in or required by the provisions of the licence, authorises the transfer of any person’s rights and obligations as holder of the licence to another person.

(6)Without prejudice to any provision made by virtue of section 28(7) below, the conditions and other provisions of a licence under this Part may be modified by the Authority with the agreement of the holder of the licence.

28 Conditions of licence: general.E+W+S

(1)A licence under this Part may include such conditions as the Authority, subject to its having regard to its duties under sections 2 to 4 above and to the following provisions of this Act, may think fit.

(2)The conditions that may be included in a licence under this Part with respect to the carrying on of the coal-mining operations authorised by the licence shall include conditions having effect in relation to the carrying on, in association with those operations, of—

(a)coal-mining operations for which no authorisation is required by virtue of this Act;

(b)coal-mining operations the authorisation for which is contained in another licence under this Part or is conferred by virtue of section 25(3) above; or

(c)any activities carried on for purposes connected with any coal-mining operations to which the conditions relate.

(3)Conditions included in a licence under this Part may contain provision requiring the holder of the licence to render to the Authority either or both of the following in respect of the exercise of its functions in connection with, or in consequence of, the grant of the licence, that is to say—

(a)payments on the grant or coming into force of the licence of such amount as may be determined by or under the conditions; and

(b)payments, at times while the licence is in force for any of the purposes of this Act, of such amounts as may be so determined.

(4)Conditions included in a licence under this Part may contain provision requiring the holder of the licence to secure that—

(a)agreements for such purposes as may be specified in the conditions are entered into between the holder of the licence and such other persons as may be specified or described in the licence; and

(b)that the terms of those agreements satisfy such requirements as may be so specified or described.

(5)Conditions included in a licence under this Part may contain provision requiring the holder of the licence to comply with any direction given by the Authority as to such matters as are specified in the licence or are of a description so specified.

(6)Conditions included in a licence under this Part may contain provision for disputes between the Authority and the holder of the licence as to any matter to which the licence relates to be referred to the determination of such person or persons as may be specified in, or appointed in accordance with, the conditions; and any dispute to which any such provision applies shall be determined accordingly.

(7)Conditions included in a licence under this Part may contain provision for any of the following, that is to say—

(a)the authorisation contained in the licence, and

(b)any of the conditions of the licence, apart from any included by virtue of this subsection,

to cease to have effect, or to be revoked or otherwise modified, at such times, in such manner and in such circumstances as may be specified in or determined under the conditions.

(8)Conditions included in a licence under this Part may provide for—

(a)obligations imposed on any person by the conditions of the licence, and

(b)liabilities arising in respect of contraventions by any person of the conditions so included,

to continue in accordance with the provisions of that licence, and to be capable of arising, after the authorisation contained in the licence has been revoked or is otherwise no longer in force or, where they have already arisen, to continue after the rights and obligations of the holder of the licence have been transferred to another person.

(9)Subsections (2) to (8) above and section 29 below shall be without prejudice to the generality of subsection (1) above.

29 Conditions for the provision of security.E+W+S

(1)Conditions included in a licence under this Part may include provision requiring the holder of the licence, on or before the coming into force of the authorisation contained in the licence and at such subsequent times as may be determined by or under the conditions—

(a)to provide such security as may be so determined for his performance of any of the obligations to which he is or may become subject, either in accordance with the licence itself or otherwise by virtue of his being at any time the holder of that licence; and

(b)for the purposes of that security and in relation to any property or rights in which it consists, to take such steps for or in connection with the establishment and maintenance of any trust or other arrangements as may be so determined.

(2)Where—

(a)any security for the performance of any person’s obligations has been provided in accordance with any condition included by virtue of subsection (1) above in a licence under this Part, and

(b)any trust or other arrangements which have, in pursuance of that condition, been established and maintained for the purposes of that security are for the time being registered under section 35(1)(f) below,

the manner in which, and the purposes for which, that security and any property or rights in which it consists are to be applied and enforceable (whether in the event of that person’s insolvency or otherwise) shall be determined in accordance with the trust or other arrangements and without regard to so much of the M21Insolvency Act 1986 or any other enactment or rule of law as, in its operation in relation to that person or any conduct of his, would prevent or restrict their being applied in accordance with the trust or other arrangements or would prevent or restrict their enforcement for the purpose of being so applied.

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Marginal Citations

30 Publication of licensing arrangements.E+W+S

(1)It shall be the duty of the Authority from time to time to publish such details as it thinks fit of—

(a)the manner in which it proposes to exercise and perform its powers and duties under the preceding provisions of this Part; and

(b)the arrangements it has made for purposes connected with the exercise and performance of those powers and duties.

(2)The arrangements referred to in subsection (1) above shall include any arrangements made with respect to the receipt and consideration, together with any application for a licence under this Part, of any application to the Authority for such interests or rights in or in relation to land or other property as the applicant may wish to acquire from the Authority for purposes connected with the operations to which the application for the licence relates.

(3)Without prejudice to the generality of subsection (1) above or to the Authority’s power in accordance with the preceding provisions of this Act to incorporate such provision as it may think fit in any licence under this Part, it shall be the duty of the Authority to publish model provisions for inclusion in licences under this Part and to have regard to the published provisions in determining what provision to incorporate in any such licence.

(4)Anything published under this section shall be published in such manner, and periodically given such further publicity, as appears to the Authority to be appropriate for securing that it is brought to the attention of persons who are likely from time to time to be interested.

EnforcementE+W+S

31 Enforcement orders.E+W+S

(1)Subject to subsections (2) and (5) and section 32 below, where the Authority is satisfied—

(a)that any person is carrying on any coal-mining operations in contravention of section 25(1) above, or is likely so to carry on any coal-mining operations, or

(b)that any person is contravening, or is likely to contravene, any of the conditions of a licence under this Part,

the Authority may, by a final enforcement order, make such provision in relation to that person as is requisite for the purpose of securing that there is no contravention of section 25(1) above or, as the case may be, that that condition is complied with.

(2)Subject to subsection (5) below, where—

(a)it appears to the Authority as mentioned in subsection (1)(a) or (b) above, and

(b)it appears to the Authority that it is appropriate that a provisional enforcement order be made,

the Authority may (instead of taking steps towards the making of a final enforcement order) by a provisional enforcement order make such provision in relation to the person in question as appears to it requisite for the purpose of securing that there is no contravention of section 25(1) above or, as the case may be, that the condition is complied with.

(3)In determining for the purposes of subsection (2)(b) above whether it is appropriate that a provisional enforcement order be made, the Authority shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of section 25(1) above or the condition in question, is likely to be done, or omitted to be done, before a final enforcement order may be made.

(4)Subject to subsection (5) and section 32 below, where a provisional enforcement order has been made, the Authority shall consider whether, for the purpose of giving it final effect, it should be confirmed and shall be entitled to confirm it, with or without modifications, if—

(a)it is satisfied that the person to whom the order relates—

(i)is carrying on any coal-mining operations in contravention of section 25(1) above, or is likely so to carry on any coal-mining operations; or

(ii)is contravening, or is likely to contravene, any of the conditions of a licence under this Part;

and

(b)the provision made by the order (with any modifications) is requisite for the purpose of securing that there is no contravention of section 25(1) above or, as the case may be, that that condition is complied with.

(5)The Authority shall not make a final enforcement order or make or confirm a provisional enforcement order in relation to any person if it is satisfied—

(a)that that person has agreed to take, and is taking, all such steps as it appears to the Authority for the time being to be appropriate for him to take for the purpose of securing that there is no contravention of section 25(1) above or that the condition in question is complied with; or

(b)that the contraventions of section 25(1) above or of that condition were, or the apprehended contraventions are, of a trivial nature.

(6)An enforcement order—

(a)shall require the person to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b)shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c)may be revoked at any time by the Authority.

(7)In this Part—

  • enforcement order” means a final enforcement order or a provisional enforcement order;

  • final enforcement order” means an order under this section other than a provisional enforcement order; and

  • provisional enforcement order” means an order under this section which, if not previously confirmed under subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order.

(8)This section and sections 32 and 33 below shall be without prejudice to the right of the Authority, where the conditions of any licence under this Part contain provision for a sum determined by or under those conditions to be paid to the Authority, to enforce that condition in proceedings for the recovery of the sum as an amount due to the Authority by virtue of an enactment.

Prospective

32 Procedural requirements for enforcement orders.E+W+S

(1)Before making a final enforcement order or confirming a provisional enforcement order, the Authority shall give notice—

(a)stating that the Authority proposes to make or confirm the order and setting out its effect;

(b)setting out—

(i)any condition of a licence for the purpose of securing compliance with which the order is to be made or confirmed;

(ii)the acts or omissions which, in the Authority’s opinion, constitute or would constitute contraventions of section 25(1) above or, as the case may be, that condition; and

(iii)any other matters which, in the Authority’s opinion, justify the making or confirmation of the order;

and

(c)specifying the period (not being less than twenty-eight days from the date of the service of the notice on the person to whom it relates) within which representations or objections with respect to the proposed order or proposed confirmation may be made;

and, before making or confirming the order, the Authority shall consider any representations or objections which are duly made and not withdrawn.

(2)A notice under subsection (1) above shall be given—

(a)by serving it, together with a copy of the proposed order or of the order as proposed to be confirmed, on the person to whom the order relates; and

(b)by taking such steps (if any) for publishing a copy of the notice as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them and of enabling them to make representations and objections within the period specified in the notice.

(3)The Authority, having given notice under subsection (1) above, shall not make the final enforcement order with modifications that are not contained in the notice or confirm the provisional enforcement order with any such modifications, except—

(a)with the consent to the modifications of the person to whom the order relates; or

(b)after complying with the requirements of subsection (4) below.

(4)The requirements mentioned in subsection (3) above are that the Authority shall—

(a)serve on the person to whom the order relates such notice as appears to the Authority requisite of its proposal to make or confirm the order with modifications;

(b)in that notice specify the period (not being less than twenty-eight days from the date of its service on the person to whom the order relates) within which representations or objections with respect to the proposed modifications may be made;

(c)take such steps (if any) for publishing a copy of the notice as it considers appropriate for the purpose of bringing the proposal to the attention of persons likely to be affected by it and of enabling them to make representations and objections within the period specified in the notice; and

(d)consider any representations or objections which are duly made and not withdrawn.

(5)As soon as practicable after making a final enforcement order or making or confirming a provisional enforcement order, the Authority shall—

(a)serve a copy of the order or, as the case may be, of the order as confirmed on the person to whom it relates; and

(b)take such steps (if any) for publishing notice of the order and, where the case so requires, of its confirmation and any modifications subject to which it is confirmed as the Authority considers appropriate for the purpose of bringing the matters contained in the notice to the attention of persons likely to be affected by them.

(6)Before revoking an enforcement order, other than an unconfirmed provisional enforcement order, the Authority shall give notice—

(a)stating that it proposes to revoke the order and setting out the effect of the order; and

(b)specifying the period (not being less than twenty-eight days from the date of the service of the notice on the person to whom the order relates) within which representations or objections with respect to the proposed revocation may be made;

and, before revoking the order, the Authority shall consider any representations or objections which are duly made and not withdrawn.

(7)If, after giving a notice under subsection (6) above, the Authority decides not to revoke the order to which the notice relates, it shall give notice of its decision.

(8)A notice under subsection (6) or (7) above shall be given—

(a)by serving it on the person to whom the order relates; and

(b)by taking such steps (if any) for publishing a copy of the notice as the Authority considers appropriate for the purpose of bringing the matters contained in the notice to the attention of persons likely to be affected by them and, in the case of a notice under subsection (6) above, of enabling them to make representations and objections within the period specified in the notice.

Prospective

33 Validity and effect of enforcement orders.E+W+S

(1)If the person to whom an enforcement order relates is aggrieved by the order and desires to question its validity on the ground—

(a)that its making or confirmation was not within the powers conferred by section 31 above, or

(b)that any of the requirements of section 32 above have not been complied with in relation to it,

he may, within forty-two days from the date of service on him of a copy of the order or, as the case may be, of the order as confirmed, make an application to the court under this section.

(2)On any such application the court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

(3)Except as provided by this section, the validity of an enforcement order shall not be questioned by any legal proceedings whatever.

(4)The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.

(5)Where a duty is owed by any person to another person by virtue of subsection (4) above, any breach of the duty which causes that other person to sustain loss or damage shall be actionable against the person in breach at the suit or instance of that other person.

(6)In any proceedings brought against any person in pursuance of subsection (5) above, it shall be a defence for him to show that he took all reasonable steps and exercised all due diligence to avoid the contravention of the order.

(7)Without prejudice to any right which any person may have by virtue of subsection (4) or (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of an enforcement order, compliance with any such order shall be enforceable by civil proceedings by the Authority for an injunction or for interdict or for any other appropriate relief.

(8)In this section and section 34 below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.

Prospective

34 Power to require information for the purposes of enforcement.E+W+S

(1)Where it appears to the Authority—

(a)that there is or may have been a contravention of section 25(1) above, or

(b)that any person is contravening, or may have contravened, any condition of a licence under this Part,

the Authority may, for any purpose connected with such of its functions under section 31 above as are exercisable in relation to that matter, serve a notice under subsection (2) below on any person.

(2)A notice under this subsection is a notice which—

(a)requires the person on whom it is served to produce, at a time and place specified in the notice, to the Authority or to any person appointed by the Authority for the purpose, any documents which are specified or described in the notice and are in that person’s possession or under his control; or

(b)requires that person, if he is carrying on a business, to furnish the Authority, at a time and place and in the form and manner specified in the notice, with such information as may be specified or described in the notice.

(3)No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to disclose any information which he could not be compelled to give in evidence in any such proceedings.

(4)A person who without reasonable excuse fails to do anything required of him by a notice under subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(5)A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (2) above to produce shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(6)If a person makes default in complying with a notice under subsection (2) above, the court may, on the application of the Authority, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

(7)No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Authority or the Director of Public Prosecutions.

SupplementalE+W+S

35 Register of licences and orders.E+W+S

(1)Subject to subsections (2) and (3) below, the Authority shall establish and maintain a register in which it shall enter particulars of—

(a)every licence granted under this Part and every pending application for such a licence;

(b)every licence in pursuance of which any person is or has been entitled to carry on coal-mining operations by virtue of section 25(3) above;

(c)every transfer, in accordance with the provisions of a licence under this Part, of the rights and obligations of any person as the holder of that licence;

(d)every revocation of, or of the authorisation contained in, a licence falling within paragraph (a) or (b) above;

(e)every other such modification of a licence falling within paragraph (a) or (b) above as relates to the particulars of that licence which are entered in the register;

(f)such trusts and other arrangements as for the time being have effect for the purposes of any security provided under the conditions included in licences under this Part in pursuance of the Authority’s duty under section 2(1)(c) above; and

(g)every enforcement order made under section 31 above, every confirmation of a provisional enforcement order, the terms on which every confirmed order is confirmed and every revocation of an enforcement order.

(2)The particulars entered in the register in relation to any licence shall be confined to—

(a)the date of the grant of the licence and the time of the coming into force of the authorisation contained in the licence;

(b)the identity of the person to whom the licence is granted and a description of any other persons who are entitled, under the licence, to carry on the coal-mining operations to which it relates;

(c)the area to which the authorisation contained in the licence relates;

(d)any restrictions contained in the licence as to the depth at which the coal-mining operations authorised by the licence may be carried on;

(e)any other provisions of the licence restricting the coal-mining operations that are authorised by the licence to specified descriptions of operations;

(f)any area designated by the licence under section 37 below as the area of responsibility of the holder of the licence;

(g)any provision included in the licence for the purposes of section 58 below and any conditions requiring the disclosure of information which may be of the description specified for those purposes; and

(h)any provisions of the licence for the expiry of the authorisation contained in the licence or for determining when an area ceases to be the area of responsibility of the holder of the licence.

(3)The particulars entered in the register in relation to any pending application for a licence under this Part shall be confined to so much of the application as contains proposals with respect to any of the matters mentioned in subsection (2) above.

(4)The particulars entered in the register in relation to any trust or other arrangements falling within subsection (1)(f) above shall be confined to particulars identifying the form (but not the value or amount) of the security in question, the person who provided the security and the trustees or other person responsible for administering the security or determining the use to which it is put.

Prospective

36 Insolvency of licensed operators etc.E+W+S

(1)A licence under this Part and the obligations arising out of, or incidental to, such a licence shall not be treated as property for any of the purposes of the M22Insolvency Act 1986 (“the 1986 Act”); but this subsection shall be without prejudice to so much of any licence as, by virtue of section 27(4) or (5) above, authorises the official receiver or any person who is for the time being acting as an insolvency practitioner in relation to the holder of the licence to carry on any of the coal-mining operations to which the licence relates or to transfer the rights and obligations of the holder of the licence to another person.

(2)Where, in the case of the winding up of a company which is or has been a licensed operator, the liquidator or official receiver sends to the registrar of companies—

(a)any such account or return as is mentioned in section 94(3) or 106(3) of the 1986 Act (account of the winding up and return of final meeting or meetings),

(b)any notice for the purposes of section 172(8) of that Act (notice of final meeting and of its decisions),

(c)an application under section 202(2) of that Act (applications for early dissolution),

(d)a copy of such an order for dissolution of the company as is mentioned in section 204(4) of that Act (order for early dissolution in Scotland), or

(e)such a notice as is mentioned in section 205(1)(b) of that Act (notice that winding up complete),

the liquidator or official receiver, on sending it to the registrar of companies, shall also send a copy to the Authority.

(3)A liquidator who contravenes subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(4)In any proceedings against any person for an offence under subsection (3) above it shall be a defence for that person to show that at the time of the contravention he did not know and had no grounds for suspecting that the company in question had ever been a licensed operator.

(5)In the case of any company which is either—

(a)the holder of a licence under this Part, or

(b)a licensed operator by virtue of section 25(3) above,

the Authority shall be included in the persons who are entitled to make an application under section 651(1) or 653(2) of the M23Companies Act 1985 (application to cancel the dissolution of a company) or under section 201(3), 202(5), 204(5) or 205(3) or (5) of the 1986 Act (applications in the case of a winding up for the deferment of a company’s dissolution).

(6)Accordingly, subsection (1) of section 653 of that Act of 1985 (section to apply where specified persons feel aggrieved) shall be disregarded where an application under subsection (2) of that section is made by virtue of subsection (5) above.

(7)In this section “registrar of companies” has the same meaning as in the M24Companies Act 1985; and the reference in subsection (1) above to a person’s acting as an insolvency practitioner shall be construed in accordance with section 388 of the 1986 Act.

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Marginal Citations

36 Insolvency of licensed operators etc.E+W+S

(1)A licence under this Part and the obligations arising out of, or incidental to, such a licence shall not be treated as property for any of the purposes of the M141Insolvency Act 1986 (“the 1986 Act”); but this subsection shall be without prejudice to so much of any licence as, by virtue of section 27(4) or (5) above, authorises the official receiver or any person who is for the time being acting as an insolvency practitioner in relation to the holder of the licence to carry on any of the coal-mining operations to which the licence relates or to transfer the rights and obligations of the holder of the licence to another person.

(2)Where, in the case of the winding up of a company which is or has been a licensed operator, the liquidator or official receiver sends to the registrar of companies—

(a)any such account or return as is mentioned in section 94(3) or 106(3) of the 1986 Act (account of the winding up and return of final meeting or meetings),

(b)any notice for the purposes of section 172(8) of that Act (notice of final meeting and of its decisions),

(c)an application under section 202(2) of that Act (applications for early dissolution),

(d)a copy of such an order for dissolution of the company as is mentioned in section 204(4) of that Act (order for early dissolution in Scotland), or

(e)such a notice as is mentioned in section 205(1)(b) of that Act (notice that winding up complete),

the liquidator or official receiver, on sending it to the registrar of companies, shall also send a copy to the Authority.

[F51(2A)Where the administrator of a company which is or has been a licensed operator files a notice with the registrar of companies under paragraph 84(1) of Schedule B1 to the Insolvency Act 1986 (c. 45) (administration: moving to dissolution), he shall at the same time send a copy to the Authority.]

(3)A liquidator [F52or administrator]who contravenes subsection (2) [F53or 2A] above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(4)In any proceedings against any person for an offence under subsection (3) above it shall be a defence for that person to show that at the time of the contravention he did not know and had no grounds for suspecting that the company in question had ever been a licensed operator.

(5)In the case of any company which is either—

(a)the holder of a licence under this Part, or

(b)a licensed operator by virtue of section 25(3) above,

the Authority shall be included in the persons who are entitled to make an application under section 651(1) or 653(2) of the M142Companies Act 1985 (application to cancel the dissolution of a company) or under section 201(3), 202(5), 204(5) or 205(3) or (5) of the 1986 Act (applications in the case of a winding up for the deferment of a company’s dissolution).

(6)Accordingly, subsection (1) of section 653 of that Act of 1985 (section to apply where specified persons feel aggrieved) shall be disregarded where an application under subsection (2) of that section is made by virtue of subsection (5) above.

(7)In this section “registrar of companies” has the same meaning as in the M143Companies Act 1985; and the reference in subsection (1) above to a person’s acting as an insolvency practitioner shall be construed in accordance with section 388 of the 1986 Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F52Words in s. 36(3) inserted (prosp.) by 2002 c. 40, ss. 248, 279, Sch. 17 para. 48(3)(a) (with s. 249(1)-(3))

F53Words in s. 36(3) inserted (prosp.) by 2002 c. 40, ss. 248, 279, Sch. 17 para. 48(3)(b) (with s. 249(1)-(3))

Marginal Citations

Part IIIE+W+S Rights and Obligations in connection with Coal Mining

Areas of responsibilityE+W+S

37 Areas of responsibility.E+W+S

(1)A licence under Part II of this Act may designate, in relation to the person who is the holder of the licence, the area which is to be treated for the purposes of this Part as that person’s area of responsibility.

(2)The area designated under this section may comprise—

(a)the whole or any one or more parts of the area where the operations to which the licence relates are to be carried on; or

(b)the whole or any parts of that area together with such other areas appearing to the Authority to be capable of being affected by those operations as may be described in the licence.

(3)Subject to subsection (4) below, an area designated under this section as an area of responsibility shall continue to be treated for the purposes of this Part as the area of responsibility of the holder of the licence in question until such time as may be determined, in accordance with the provisions of the licence, to be the time for responsibilities in respect of the designated area to revert (subject to any further designation of the whole or any part of that area) to the Authority.

(4)The conditions included in a licence under Part II of this Act may provide for the modification from time to time of the area of responsibility of the holder of the licence.

(5)For the purposes of subsection (3) above it shall be immaterial that the authorisation contained in the licence in question is revoked or otherwise ceases to have effect before the time determined for the purposes of that subsection.

Withdrawal of support from landE+W+S

38 Rights to withdraw support.E+W+S

(1)Subject to the following provisions of this Part, on and after the restructuring date, any licensed operator shall be entitled, so far as may be reasonably requisite for the carrying on of any coal-mining operations to which section 25 above applies, to withdraw support from any land to which this section applies.

(2)This section applies to any land, not being land comprised in an underground coal mine, if—

(a)a notice under this section relating to that land has been given in accordance with section 39 below and has come into force;

(b)immediately before the restructuring date the Corporation was entitled under and in accordance with section 2 of the 1975 Act (rights to withdraw support) to withdraw support from that land;or

(c)the following conditions are satisfied, that is to say—

(i)the relevant date of publication of a notice under section 2 of the 1975 Act relating to that land is a date not more than three months before the restructuring date;

(ii)the Corporation would (apart from subsection (7) below) have become entitled as mentioned in paragraph (b) above at the end of the period of three months beginning on the relevant date of publication; and

(iii)that period has expired;

and a right under this section shall have effect whether the coal in relation to which the operations concerned are carried on lies under the land to which this section applies or under adjacent land.

(3)A notice under this section shall come into force with whichever is the later of the following, that is to say—

(a)the expiry of the period of three months beginning with the day after the relevant date of publication; and

(b)the time when particulars of the notice are first registered by the Authority in accordance with section 56 below.

(4)In the case of any licensed operator who is entitled by virtue of this section to withdraw support from any land, the rights comprised in his entitlement shall also be exercisable by any person authorised as mentioned in section 27(4) above to act on his behalf in the carrying on of any of the operations which the operator is authorised to carry on.

(5)In this section and section 39 below “relevant date of publication”—

(a)in relation to a notice under section 2 of the 1975 Act, has the same meaning as in that section;and

(b)in relation to a notice under this section, means whichever is the later of—

(i)the date of the publication of the notice in the London or Edinburgh Gazette; and

(ii)the date of the first of the publications for the purposes of section 39(3)(b) below.

(6)In this section “underground coal mine” means any coal mine which is a mine within the meaning of the M25Mines and Quarries Act 1954.

(7)Subject to the preceding provisions of this section, the rights conferred on the Corporation by section 2 of the 1975 Act shall not be exercisable at any time on or after the restructuring date.

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Marginal Citations

39 Notices under section 38.E+W+S

(1)A notice under section 38 above shall not be given except—

(a)by a person who on the relevant date of publication is a licensed operator and, as the holder of a licence under Part II of this Act, has an area of responsibility that consists of or includes all the land to which the notice relates; or

(b)by a person who on that date—

(i)is authorised by such a licence, or by virtue of subsection (3) of section 25 above, to carry on coal-mining operations to which that section applies; and

(ii)has the approval of the Authority for the giving of a notice relating to the land in question.

(2)A notice under section 38 above—

(a)shall indicate the land to which it relates either by reference to a map or in any other manner which, in the circumstances, is sufficient to identify it;

(b)shall identify the person by whom the notice is given and summarise the respects in which the requirements of subsection (1) above are satisfied in relation to that person; and

(c)shall state that there are proposals to carry on coal-mining operations which may require the exercise in relation to that land of such a right as is mentioned in section 38(1) above.

(3)A notice under section 38 above shall be given by being published—

(a)in the London Gazette or the Edinburgh Gazette, according to whether the land to which the notice relates is in England and Wales or in Scotland; and

(b)at least once in each of two successive weeks, in newspapers circulating in the locality where that land is situated.

(4)Not later than the relevant date of publication of a notice under section 38 above, the person giving that notice shall—

(a)serve a copy of the notice on every planning authority within whose area or district any part of the land to which the notice relates is situated; and

(b)post a copy or copies of the notice in some conspicuous place or places on that land.

(5)In subsection (4) above “planning authority” means any local planning authority within the meaning of the M26Town and Country Planning Act 1990 or any planning authority within the meaning of Part IX of the M27Local Government (Scotland) Act 1973.

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Marginal Citations

40 Savings for special cases.E+W+S

(1)Where the Corporation is bound, immediately before the restructuring date, by—

(a)the provisions of an agreement which—

(i)was made between the Corporation or any predecessor of the Corporation and a person who (within the meaning of the M28Coal Act 1938) was interested in any land, and

(ii)has effect so as to require the Corporation to comply with an undertaking which is contained in the agreement and is an undertaking not to work any coal, not to work minerals or not to withdraw support from any land,

(b)any provisions containing any restriction, terms or conditions applicable to the working of coal by virtue of any agreement entered into after 1st July 1942 and before the restructuring date,or

(c)the provisions of any coal-mining lease (within the meaning of that Act of 1938) prohibiting the withdrawal of support from any land specified in the lease,

section 38 above shall have effect subject to those provisions, but only so far as they have effect in relation to the Corporation or any other person who is for the time being bound by them.

(2)Section 38 above shall not affect any restrictions, terms or conditions applicable to the working of coal by virtue of—

(a)any order made (whether before or after the restructuring date) under section 1 or 7 of the M29Mines (Working Facilities and Support) Act 1966 (acquisition of rights to work minerals);or

(b)section 33 of the M30Coal Act 1938 (restriction on working of coal vested in statutory undertakers) or any consent required by virtue of that section;

and section 38 above shall be without prejudice to the effect in relation to any restrictions, terms or conditions falling within paragraph (a) or (b) above of the provisions of any restructuring scheme.

(3)Section 38 above shall have effect subject to any such right as was referred to in section 34(1) of the M31Coal Act 1938 (statutory and corresponding rights of the Crown, local authorities and statutory undertakers) and is a right to which the activities of the Corporation were subject immediately before the restructuring date.

(4)Nothing in section 38 above shall confer any entitlement to withdraw support in connection with the working of any coal or coal mines comprised in land in the Forest of Dean or any other part of the area of what was the Hundred of Saint Briavels in the county of Gloucester, being land in respect of which the privileges of free miners are exercisable.

(5)References in this section, in relation to an agreement which has effect with respect to the working of any coal, to a predecessor of the Corporation are references to the Coal Commission or the person in whom the fee simple of the coal (or, in Scotland, the interest of proprietor of the dominium utile of the coal) was vested when the agreement was entered into.

(6)The reference in subsection (5) above to a person in whom the interest of proprietor of the dominium utile was vested when the agreement was entered into shall, as regards coal in the undivided ownership of the Crown at that time, be construed as a reference to the Crown.

(7)Nothing in this Act or in any other enactment shall be taken as preventing any person from entering, at any time on or after the restructuring date, into an agreement by virtue of which he accepts a prohibition or restriction on the exercise of his rights under section 38 above.

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Marginal Citations

41 Revocation of right to withdraw support.E+W+S

(1)Where the Authority gives a notice under this section in relation to any land to which section 38 above applies, that section shall cease to apply to that land in relation to any coal-mining operations carried on after the relevant date of publication.

(2)The Authority shall not give a notice under this section unless it appears to the Authority that there is not for the time being any person who is authorised, by a licence under Part II of this Act or by virtue of section 25(3) above, to carry on coal-mining operations which might involve the withdrawal of support from the land in question.

(3)A notice under this section—

(a)shall indicate the land to which it relates either by reference to a map or in any other manner which, in the circumstances, is sufficient to identify it;

(b)shall state that section 38 above is to cease to apply to the land; and

(c)shall be given by being published—

(i)in the London Gazette or the Edinburgh Gazette, according to whether the land to which the notice relates is in England and Wales or in Scotland; and

(ii)at least once in each of two successive weeks, in newspapers circulating in the locality where that land is situated.

(4)Not later than the relevant date of publication of a notice under this section, the Authority shall serve a copy of the notice on every planning authority within whose area or district any part of the land to which the notice relates is situated.

(5)Subsection (1) above shall be subject to the effect of any notice under section 38 above which is given at any time after the relevant date of publication of the notice under this section.

(6)In this section—

  • planning authority” means any local planning authority within the meaning of the M32Town and Country Planning Act 1990 or any planning authority within the meaning of Part IX of the M33Local Government (Scotland) Act 1973; and

  • relevant date of publication”, in relation to a notice under this section, means whichever is the later of—

    (a)

    the date of the publication of the notice in the London or Edinburgh Gazette; and

    (b)

    the date of the first of the publications of that notice for the purposes of subsection (3)(c)(ii) above.

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Marginal Citations

SubsidenceE+W+S

42 Subsidence damage to which 1991 Act applies.E+W+S

(1)Section 1 of the 1991 Act (preliminary) shall have effect so far as it relates to operations carried on at any time on or after the restructuring date with the substitution for subsection (3) (meaning of “lawful coal-mining operations”) of the following subsection, that is to say—

(3)In subsection (1) above “lawful coal-mining operations” means any coal-mining operations to which section 25 of the Coal Industry Act 1994 applies (including operations carried on in contravention of subsection (1) of that section and those that are actionable apart from this Act) which—

(a)are carried on by a person who is for the time being a licensed operator within the meaning of that Act; or

(b)are carried on by a person who has been such a licensed operator and in continuation of operations begun by that person before he ceased to be such an operator;

but for the purposes of this subsection any operations carried on or begun by any person as a person who is for the time being authorised to carry on coal-mining operations on behalf of a person who is or has been a licensed operator shall be treated as carried on or begun by the latter person, whether or not the authorisation extends to the operations in question.

(2)Sections 34 and 35 of the 1991 Act (which make provision with respect to the construction of any building, structure or works on land from which the Corporation is entitled to withdraw support) shall cease to have effect on the restructuring date.

43 Persons responsible for subsidence.E+W+S

(1)Except where Schedule 6 to this Act otherwise provides, the 1991 Act and the regulations under that Act which are in force immediately before the restructuring date shall have effect on and after that date with the substitution, in relation to any subsidence damage, for references to the Corporation of references to the person who is the responsible person in relation to that damage.

(2)Subject to the following provisions of this section and to section 44 below, the responsible person, in relation to any subsidence damage, shall for the purposes of this Part be—

(a)the person with responsibility for subsidence affecting the land which has been damaged or, as the case may be, the damaged part of it; or

(b)in the case of damage to other property, the person with responsibility for subsidence affecting the land where that property or, as the case may be, the damaged part of it was situated at the time of the damage.

(3)For the purposes of this Part, the person with responsibility for subsidence affecting any land shall be—

(a)where that land is for the time being within the area of responsibility of any person as the holder of a licence under Part II of this Act, that person; and

(b)in any other case, the Authority.

(4)For the purposes of this Part a person is the responsible person in relation to any subsidence damage whether that damage was caused or occurred before or after the time when that person became the person with responsibility for subsidence affecting the land in question.

(5)Accordingly, but subject to section 44 below, where, by virtue of any designation or of any transfer of rights and obligations or of the operation of any such provision as is mentioned in section 37(3) above, any person (“the successor”) becomes the person with responsibility for subsidence affecting any land—

(a)all the rights and liabilities under the 1991 Act, or under any regulations made under that Act or this Part, of the successor’s predecessor as the person with responsibility for subsidence affecting that land (“the predecessor”) shall be transferred, by virtue only of his becoming the person with responsibility, to the successor; and

(b)anything which—

(i)has been done under or for any of the purposes of the 1991 Act or those regulations by or in relation to the predecessor, or

(ii)is deemed to have been so done,

shall be deemed, so far as necessary for that purpose and for the purposes of the continuation by or against the successor of any proceedings under or for the purposes of that Act or those regulations, to have been done by or in relation to the successor.

(6)It shall be the duty of a person who becomes as mentioned in subsection (5) above the person with responsibility for subsidence affecting any land to take all reasonable steps to secure that the change in the person with that responsibility does not result in any undue delay in the performance of any obligations falling by virtue of that change to be performed by that person.

(7)Subsections (5) and (6) above shall have effect in relation to the coming into force of subsection (1) above on the restructuring date as they have effect in relation to any other transfer of rights and obligations but as if the references to the predecessor were references to the Corporation.

(8)Schedule 6 to this Act shall have effect for making provision, in addition to or instead of that made by subsection (1) above, for or in connection with the modification of references to the Corporation in the 1991 Act.

44 Cases where there is more than one responsible person.E+W+S

(1)Where, in the case of any subsidence damage, the area of responsibility of any person as holder of a licence under Part II of this Act includes only part of the damaged land or, as the case may be, of the land where the damaged property was situated, then for the purposes of this Part—

(a)that person, together with—

(i)every other person within whose area of responsibility any part of that land is situated,and

(ii)if any part of that land is not situated within the area of responsibility of any person, the Authority,

shall be the responsible persons in relation to that damage; and

(b)the obligations and liabilities by virtue of section 43 above of the responsible person shall be obligations and liabilities imposed jointly and severally on the persons mentioned in paragraph (a) above.

(2)Subsection (5) of section 43 above shall have effect as modified by subsection (3) below in any case where—

(a)a person ceases at any time to be the person with responsibility for subsidence affecting any land but continues, after that time, to be the person with responsibility for subsidence affecting other land; and

(b)the effect of subsection (1) above in relation to the circumstances specified in paragraph (a) above is that both the predecessor and the successor are responsible persons in relation to any subsidence damage to which any of the predecessor’s rights or liabilities relate.

(3)In any case where, by virtue of subsection (2) above, this subsection has effect—

(a)the rights and liabilities of the predecessor, so far as they relate to subsidence damage in relation to which the predecessor continues to be a responsible person, shall continue to be vested in the predecessor, as well as being vested in the successor; and

(b)subsection (5) of section 43 above shall not authorise the continuation against the successor of any proceedings under or for the purposes of the 1991 Act which—

(i)have been begun, or are deemed to have been begun, against the predecessor; and

(ii)may be continued against the predecessor by virtue of paragraph (a) above;

but paragraph (b) above shall be without prejudice to any rules of court in accordance with which the successor may be joined as a party to any proceedings in respect of any such rights or liabilities as are mentioned in paragraph (a) above.

(4)In subsection (1) above the reference to the damaged land and to the damaged property are references, where only part of the land or property has been damaged, to the damaged part of that land or property.

45 Information to be provided by responsible persons.E+W+S

(1)The Secretary of State may by regulations make provision imposing requirements on a person with responsibility for subsidence affecting any land—

(a)to furnish information, on request, to the owner or occupier of any part of that land;

(b)to furnish information to the Authority about any such request for information relating to, or to the possibility of, subsidence damage as is made otherwise than by the owner or occupier of any part of that land;

(c)to notify a person who has made a request to which regulations made by virtue of paragraph (b) above apply of its being forwarded to the Authority in pursuance of those regulations; and

(d)to ensure that such forms and documents as may be described in the regulations accompany information furnished under the regulations.

(2)Regulations under this section may contain such provision as the Secretary of State thinks fit with respect to—

(a)the descriptions of information to which any request made for the purposes of any such regulations is to be confined; and

(b)the particulars to be included in, or omitted from, information furnished in accordance with any such regulations.

(3)In this section the reference to an owner, in relation to any land, shall be construed in accordance with section 52(1) of the 1991 Act (interpretation); and section 50 of the 1991 Act (regulations and orders) shall apply in relation to the power to make regulations under this section as it applies in relation to any power of the Secretary of State to make regulations under that Act.

(4)In subsection (5)(c) of section 46 of the 1991 Act and subsection (4)(c) of section 47 of that Act (regulations with respect to information which is to accompany notices), for “which is”, in each case, there shall be substituted “ , forms and documents which are ”.

46 The subsidence adviser.E+W+S

(1)The Secretary of State may by regulations make such provision as he considers necessary or expedient—

(a)for the appointment of an independent person (“the subsidence adviser”) to carry out, in prescribed cases, the functions specified in subsection (2) below; and

(b)for regulating and facilitating the carrying out of those functions by the subsidence adviser.

(2)The functions referred to in subsection (1) above are—

(a)the provision of advice and assistance to persons (other than those with responsibility for subsidence affecting land) in connection with the making of complaints, or the taking of any other steps, in relation to any matter arising under the 1991 Act or any question falling within section 47(1) below;

(b)the making to persons with responsibility for subsidence affecting land of recommendations as to the manner in which they conduct themselves where such a matter has arisen or any such question falls to be determined;

(c)the making of reports dealing generally with the way in which persons with responsibility for subsidence affecting land conduct themselves where such matters arise or such questions fall to be determined; and

(d)the making of reports about the carrying out by the subsidence adviser of his functions, whether in particular cases or generally.

(3)Without prejudice to the generality of subsection (1) above, regulations under this section may contain provision which, in prescribed cases, requires—

(a)the publication by the subsidence adviser of his recommendations and reports; and

(b)the giving, to persons concerned with any matter being handled by the subsidence adviser, of opportunities for making representations and objections.

(4)It shall be the duty of the Authority to furnish the subsidence adviser with all such information and assistance as he may reasonably require in respect of any case in which the Authority is the person with responsibility for subsidence affecting the land in question.

(5)The Secretary of State may by regulations make provision for—

(a)expenses incurred by the subsidence adviser in the carrying out of his functions, and

(b)the expense of making payments to or in respect of him by way of remuneration or otherwise,

to be met, in whole or in part, by some or all of the persons with responsibility for subsidence affecting land or in such other manner as may be prescribed.

(6)The provision that may be contained in regulations under this section shall include—

(a)provision for any matter to which the regulations relate to be determined by the Authority in such manner, and by reference to such factors, as may be described in the regulations; and

(b)provision, where any expenses are to be met by the Authority in accordance with the regulations, for amounts in respect of those expenses to be recoverable by the Authority from other persons with responsibility for subsidence affecting land.

(7)In this section “prescribed” means prescribed by regulations under this section; and section 50 of the 1991 Act (regulations and orders) shall apply in relation to the powers to make regulations under this section as it applies in relation to any power of the Secretary of State to make regulations under that Act.

(8)The supplementary, incidental and transitional provision that may be contained, by virtue of subsection (7) above, in regulations under this section may include transitional provision in relation to matters arising under the 1991 Act at times before the restructuring date.

47 Disputes etc. as to subsidence matters.E+W+S

(1)The questions that may be referred to the Lands Tribunal under section 40 of the 1991 Act (disputes generally) shall include—

(a)any question as to who is the person with responsibility for subsidence affecting particular land;

(b)the question whether there has been a contravention of any subsidence requirement; and

(c)the question how any such contravention is to be remedied.

(2)The Secretary of State may by regulations make such provision as he considers appropriate—

(a)for establishing procedures that facilitate the making, by agreement or in accordance with regulations made by virtue of paragraph (b) below, of references to such arbitration as may be prescribed of questions arising under the 1991 Act or falling within subsection (1) above;

(b)for enabling any such question to be referred to and determined by arbitration in a case where (but for the regulations) it would fall to be referred to the Lands Tribunal on account of a failure by the person whose interest in it derives from the fact or assertion that he is a person with responsibility for subsidence affecting land to agree to the arbitration or to any other method of determining the question; and

(c)for regulating the conduct of arbitrations to which questions are referred in accordance with regulations under this subsection.

(3)Subsections (2) and (3) of section 40 of the 1991 Act (burden of proof and incidental powers) shall apply for the determination of a question falling within subsection (1) above as they apply for the determination of questions arising under the 1991 Act.

(4)Subject to subsection (5) below, where a question falling within subsection (1) above is referred to the Lands Tribunal or in accordance with any regulations under subsection (2) above to arbitration, the powers of that Tribunal or of the arbitrator or arbiter shall include (in addition to any powers conferred by virtue of subsection (3) above)—

(a)power to have such regard as may appear appropriate to any recommendations or report made by virtue of any regulations under section 46 above;

(b)power by order to require a person with responsibility for subsidence affecting land to take such steps for remedying any contravention of a subsidence requirement as that Tribunal, arbitrator or arbiter may direct; and

(c)power to award compensation of an amount not exceeding £5,000 in respect of any such inconvenience caused to a person by a contravention of a subsidence requirement as does not fall to be compensated for apart from this paragraph.

(5)In the application of subsection (4)(b) above to an arbitration in so far as relating to subsidence affecting land in Scotland, the words “by order” shall be disregarded and the reference to requiring the person to take remedial steps shall not be construed as prejudicing any other provision of Scots law as respects enforcement of a decree arbitral.

(6)The Secretary of State may by order substitute a higher amount for the amount for the time being specified in subsection (4)(c) above.

(7)The Secretary of State may by regulations make provision—

(a)for the expenses of maintaining procedures for the purposes of any regulations under subsection (2) above to be met, in whole or in part, by some or all of the persons with responsibility for subsidence affecting land or in such other manner as may be prescribed; and

(b)for one or more of the parties to a reference in accordance with any such regulations to be required to pay, or to make a contribution towards, the costs and other expenses incurred in relation to that reference by any person.

(8)The provision that may be contained in regulations under this section shall include—

(a)provision for any matter to which the regulations relate to be determined by the Authority in such manner, and by reference to such factors, as may be described in the regulations; and

(b)provision, where any expenses are to be met by the Authority in accordance with the regulations, for amounts in respect of those expenses to be recoverable by the Authority from other persons with responsibility for subsidence affecting land.

(9)References in this section to a contravention of a subsidence requirement are references to any contravention by a person with responsibility for subsidence affecting any land of any of the following requirements, that is to say—

(a)the requirements imposed on such a person by or under the 1991 Act or by any regulations under section 45 above;

(b)the requirement imposed by section 43(6) above;

(c)the requirement under paragraph 1 of Schedule 6 to this Act to forward a damage notice to the Authority as soon as reasonably practicable after receiving it; and

(d)the requirement to comply with an order made by virtue of subsection (4)(b) above (or, as respects the application of that subsection mentioned in subsection (5) above, a decree granted by virtue of subsection (4)(b)) or section 40(3)(a) of the 1991 Act (orders of the Lands Tribunal).

(10)In this section—

  • the Lands Tribunal”, in relation to Scotland, means the Lands Tribunal for Scotland; and

  • prescribed” means prescribed by regulations under this section;

and section 50 of the 1991 Act (regulations and orders) shall apply in relation to the powers to make regulations under this section, and the power to make orders under subsection (6) above, as it applies in relation to any power of the Secretary of State to make regulations or orders under that Act.

(11)The transitional provision that may be included, by virtue of subsection (10) above, in regulations under this section may include provision in relation to questions arising in relation to times before the restructuring date.

48 Offences with respect to subsidence information.E+W+S

(1)A person shall be guilty of an offence under this section if he engages in any conduct falling within subsection (2) below for the purpose of—

(a)obtaining for himself or any other person any benefit under the 1991 Act; or

(b)facilitating the temporary or permanent avoidance, by himself or any other person, of the whole or any part of—

(i)any obligation under that Act;

(ii)any other requirement mentioned in section 47(9)(a) to (c) above; or

(iii)any liability for contravention of any such obligation or requirement.

(2)A person engages in conduct falling within this subsection if he—

(a)furnishes any other person whatever with any information which he knows to be false in a material particular;

(b)recklessly furnishes any other person whatever with any information which is false in a material particular; or

(c)with intent to deceive, withholds any information from any person whatever.

(3)A person who is or has been a licensed operator shall be guilty of an offence under this section if he—

(a)furnishes the Authority with any subsidence information which he knows to be false in a material particular;

(b)recklessly furnishes the Authority with any subsidence information which is false in a material particular; or

(c)with intent to deceive, withholds any subsidence information from the Authority.

(4)In subsection (3) above “subsidence information”, in relation to a person who is or has been a licensed operator, means information relating to the extent of the existing or potential liabilities of that person in respect of subsidence damage.

(5)Any person who fails to give, in accordance with section 46 or 47 of the 1991 Act (notice to property owners etc. and local authorities), any notice that he is required to give under that section shall be guilty of an offence under this section.

(6)In any proceedings against a person for an offence by virtue of subsection (5) above it shall be a defence for that person to show that he took such steps as were reasonable to avoid the commission of the offence.

(7)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

Rights in relation to former copyhold landE+W

49 Rights to work coal in former copyhold land.E+W

(1)Where—

(a)any coal or coal mine is comprised in or lies under land which was formerly copyhold, and

(b)a notice (“a relevant notice”) specifying the area in which that land is comprised—

(i)has been given in accordance with section 50 below and has come into force, or

(ii)has been published, before the restructuring date, in accordance with section 3 of the 1975 Act (which contains provision equivalent to the provision contained in this section),

the relevant person shall have the like right in relation to that coal or coal mine to carry on coal-mining operations to which section 25 above applies as if all retained interests in that coal or mine subsisting on 31st August 1975 were vested in him, notwithstanding that they are, by virtue of any enactment, in fact vested in another person.

(2)For the purposes of this section the relevant person, in relation to any relevant notice, is—

(a)in the case of a notice given in accordance with section 50 below, the person who gave the notice; and

(b)in the case of a notice published in accordance with section 3 of the 1975 Act, the Corporation.

(3)In so far as—

(a)a person other than the relevant person is for the time being a licensed operator in relation to the coal or mine which is comprised in, or lies under, the land comprised in the area specified in a relevant notice, and

(b)compensation under Part I of Schedule 7 to this Act or, in relation to times before the restructuring date, under section 3(4) of the 1975 Act either—

(i)has become due in respect of any retained interest affected by that notice and has been paid in full, or

(ii)would have become due in respect of such an interest but for an agreement under paragraph 8 of Schedule 7 to this Act or paragraph 8 of Schedule 2 to the 1975 Act,

the person mentioned in paragraph (a) above shall be entitled (instead of the relevant person) to exercise the relevant person’s rights by virtue of subsection (1) above.

(4)In the case of any licensed operator who is entitled by virtue of this section to carry on any coal-mining operations in relation to any coal or coal mine, the rights comprised in his entitlement shall also be exercisable by any person authorised as mentioned in section 27(4) above to act on his behalf in the carrying on of any of the operations which the operator is authorised to carry on.

(5)Nothing in this section shall confer any such right as is mentioned in section 9(1)(b) above or be taken to authorise a contravention of section 25(1) above or of any of the conditions of a licence under Part II of this Act; and the rights that are conferred on the Corporation by this section shall have effect subject to any transfer of those rights, in accordance with any restructuring scheme, to any other person.

(6)A notice given for the purposes of this section at any time on or after the restructuring date shall come into force when particulars of it are first registered by the Authority in accordance with section 56 below.

(7)Schedule 7 to this Act shall have effect with respect to compensation and certain other matters in cases in which a relevant notice is given or has been published.

(8)In this section and section 50 below and in Schedule 7 to this Act “retained interest” means any retained interest within the meaning of the M34Coal Act 1938.

(9)Subject to the preceding provisions of this section, the rights conferred on the Corporation by section 3 of the 1975 Act shall not be exercisable at any time on or after the restructuring date.

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Marginal Citations

50 Notices under section 49.E+W

(1)This section applies with respect to the giving of a notice for the purposes of section 49 above at any time on or after the restructuring date.

(2)The only person who may give the notice is a person who is authorised by a licence under Part II of this Act or by virtue of section 25(3) above to carry on coal-mining operations in the area specified in the notice.

(3)The notice—

(a)shall indicate the land to which it relates either by reference to a map or in any other manner which, in the circumstances, is sufficient to identify it;

(b)shall identify the person by whom the notice is given and summarise the respects in which the requirements of subsection (2) above are satisfied in relation to that person;

(c)shall state that there are proposals to carry on coal-mining operations in relation to any coal or coal mine which may require the exercise in relation to that land of such a right as is mentioned in section 49(1) above; and

(d)shall invite the owners of retained interests in any coal or coal mine comprised in or lying under the land in the area to which the notice relates to give notice of their interests, within the period which begins with the date of the first publication of the notice in accordance with subsection (4) below and ends six years after the coming into force of the notice in accordance with section 49(6) above, to the person who gave the notice.

(4)The notice shall be given by being published—

(a)in the London Gazette; and

(b)at least once in each of two successive weeks, in newspapers circulating in the locality where the land to which the notice relates is situated.

Additional rights in relation to underground landE+W+S

51 Additional rights in relation to underground land.E+W+S

(1)Subject to the following provisions of this section—

(a)a licensed operator, or

(b)any person authorised as mentioned in section 27(4) above to act on his behalf in the carrying on of any of the operations which the operator is authorised to carry on,

shall be entitled, at any time on or after the restructuring date, to exercise the right conferred by this section in relation to any underground land in the area in which the operator in question is authorised to carry on coal-mining operations.

(2)Subject to the following provisions of this section and to section 5(6) above, the Authority and the persons authorised by the Authority to exercise its right under this section shall also be entitled, at any time on or after the restructuring date, to exercise the right conferred by this section in relation to any underground land in relation to which there is not for the time being any person who, as a licensed operator, is authorised to carry on any coal-mining operations to which section 25 above applies.

(3)The right conferred by this section in relation to any underground land is a right, for any of the purposes mentioned in subsection (4) below, to do any of the following, that is to say—

(a)to enter upon, remove, execute works in, pass through or occupy that land; or

(b)to do any acts requisite or convenient for the carrying on of any coal-mining operations.

(4)The purposes mentioned in subsection (3) above are—

(a)in relation to a licensed operator or a person authorised to act on his behalf, the carrying on of any coal-mining operations; and

(b)in relation to the Authority, any purposes connected with the carrying out of its functions under this Act.

(5)Nothing in this section shall authorise—

(a)any interference with the carrying on of any underground operations carried on otherwise than for purposes connected with any coal-mining operations;

(b)the withdrawal of support from any land or any interference with the surface of any land;

(c)the doing of any act which, apart from this section, would be actionable in England and Wales by virtue of—

(i)any liberty, privilege, easement, advantage or other right annexed to any other land,

(ii)any restrictive covenant, or

(iii)any statutory prohibition or restriction,

which adversely affects the land in question;

(d)the doing of any act which, apart from this section, would be actionable in Scotland by virtue of—

(i)any real burden (including a real burdenad factum praestandum), or

(ii)any statutory prohibition or restriction,

which adversely affects the land in question; or

(e)the doing of any act which, apart from this section, would be actionable as a trespass or nuisance and, if done, would be likely to cause actual damage of more than a purely nominal amount.

(6)For the purposes of subsection (5) above the reference to a liberty, privilege, easement, advantage or other right being annexed to any land is a reference to its appertaining to that land or any part of it, to its being demised, occupied or enjoyed with that land or any part of it or to its being reputed or known as part or parcel of the land or as appurtenant to the land or to any part of it.

(7)Nothing in this section shall confer any such right as is mentioned in section 9(1)(b) above or be taken to authorise a contravention of section 25(1) above or of any of the conditions of a licence under Part II of this Act.

(8)The rights conferred on the Corporation by virtue of section 15 of the M35Coal Act 1938, section 8(1) of the 1946 Act and section 25 of the M36Control of Pollution Act 1974 (which made provision similar to that made by this section and extended such provision to waste disposal), or by virtue of any of those provisions, shall not be exercisable at any time on or after the restructuring date.

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Marginal Citations

Opencast operationsE+W+S

52 Opencast operations.E+W+S

(1)The following powers under the M37Opencast Coal Act 1958 (“the 1958 Act”) shall not be exercisable at any time after 31st December 1999, that is to say—

(a)the power to make a compulsory rights order;

(b)the power under section 15 of that Act to make an order suspending a right of way; and

(c)the power to make an order under section 16 of that Act (orders conferring rights for the purposes of drainage or water supply);

and the Secretary of State shall not, at any time after that date, give a direction designating any land for the purposes of section 39(2) of that Act (rights of entry) except on an application made to him before that date by the Authority.

(2)Subject to subsection (1) above and to any transfers in accordance with a restructuring scheme of any rights or liabilities under the 1958 Act, that Act shall have effect on and after the restructuring date with the amendments specified in Schedule 8 to this Act (which, as well as making other minor amendments of that Act, makes the modifications, in relation to the period before 31st December 1999, which are requisite for enabling orders under that Act to be made in favour of persons other than the Corporation).

(3)Subsection (1) above shall be without prejudice to the effect after 31st December 1999 of anything done under the 1958 Act on or before that date or generally to the operation of that Act in relation to anything so done.

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Marginal Citations

Protection of the environmentE+W+S

53 Environmental duties in connection with planning.E+W+S

(1)This section applies in the case of proposals (“coal-mining proposals”) formulated for inclusion in so much of any application for planning permission as relates to any of the following, that is to say—

(a)the carrying on of any coal-mining operations;

(b)the restoration of land used in connection with the carrying on of any coal-mining operations; and

(c)the carrying on of any other operations incidental to any coal-mining operations or to the restoration of land which has been so used.

(2)Where a planning authority consider any coal-mining proposals included in such an application, they shall have regard—

(a)to the desirability of the preservation of natural beauty, of the conservation of flora and fauna and geological or physiographical features of special interest and of the protection of sites, buildings, structures and objects of architectural, historic or archaeological interest; and

(b)to the extent (if any) to which the person by whom the proposals were formulated has complied with subsection (3) below.

(3)A person who formulates coal-mining proposals shall be required for the purposes of paragraph (b) of subsection (2) above—

(a)to have regard, in formulating those proposals, to the desirability of the matters mentioned in paragraph (a) of that subsection; and

(b)to formulate proposals (as part of or in addition to the coal-mining proposals) for the adoption of such measures (if any) as it is reasonably practicable for that person to adopt for mitigating any adverse effect of the development to which the coal-mining proposals relate on the natural beauty of any area or on any such flora, fauna, features, sites, buildings, structures or objects as are so mentioned.

(4)In this section—

  • development” and “planning permission”—

    (a)

    in relation to England and Wales, have the same meanings as in the M38Town and Country Planning Act 1990; and

    (b)

    in relation to Scotland, have the same meanings as in the M39Town and Country Planning (Scotland) Act 1972; and

  • planning authority” means—

    (a)

    any local planning authority within the meaning of the M40Town and Country Planning Act 1990 or any planning authority within the meaning of Part IX of the M41Local Government (Scotland) Act 1973; or

    (b)

    the Secretary of State in the exercise and performance of such of his powers and duties under those Acts as relate to the grant of planning permission.

(5)Section 3 of the M42Opencast Coal Act 1958 (protection of amenity) shall cease to have effect.

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Modifications etc. (not altering text)

C3S. 53: transfer of functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Marginal Citations

54 Obligations to restore land affected by coal-mining operations.E+W+S

(1)Subject to subsection (5) below, the power of the Secretary of State by a development order to make the planning permission granted by any such order subject to conditions shall include power, in relation to any permission to win or work any minerals in a coal mine started before 1st July 1948, to make it a condition of that permission that there is compliance with such requirements falling within subsection (2) below as may be specified or described in the order.

(2)The requirements which, in relation to any coal mine, fall within this section are such requirements as the Secretary of State thinks fit in relation to—

(a)the demolition or removal of any buildings, plant, machinery, structures or erections used at any time for or in connection with any previous coal-mining operations at that mine; and

(b)the re-instatement, restoration and aftercare of any land used at any time for or in connection with any previous coal-mining operations at that mine.

(3)In subsection (2) above “previous coal-mining operations”, in relation to the requirements imposed by any condition, means—

(a)any coal-mining operations carried on by any person before 1st July 1948; or

(b)any coal-mining operations which—

(i)were carried on by any person at any time on or after that date but before the coming into force of that condition; and

(ii)were operations constituting development for which planning permission was granted by a development order or any corresponding order made, or having effect as if made, under any enactment then in force;

and references in this section to the use of anything in connection with any such operations shall include references to its use for or in connection with activities carried on in association with, or for purposes connected with, the carrying on of those operations.

(4)A condition contained in a development order by virtue of this section may provide—

(a)for the requirements imposed by that condition to include a requirement framed by reference to the opinion or approval of the relevant planning authority; and

(b)for that condition to be capable of being modified by agreement with the relevant planning authority.

(5)The Secretary of State’s powers under this section to modify a development order shall not be exercised at any time after the end of the period of six months beginning with the restructuring date, except for purposes which do not, in relation to any coal mine, include any of the following, that is to say—

(a)imposing a requirement which had not previously been imposed in relation to that coal mine;

(b)making a requirement which had been imposed in relation to that coal mine more onerous; and

(c)making provision by reference to any person’s opinion or approval so as to confer powers that did not exist before and might be exercised for a purpose falling within paragraph (a) or (b) above;

but nothing in this subsection shall be taken as affecting the continuing effect after the end of that period of any modification made after the passing of this Act and before the end of that period.

(6)Expressions used in this section and in the M43Town and Country Planning Act 1990 or [F5the Town and Country Planning (Scotland) Act 1997] shall—

(a)in the application of this section to England and Wales, have the same meanings in this section as in that Act of 1990; and

(b)in the application of this section to Scotland, have the same meanings in this section as in [F5that Act of 1997].

(7)In this section “relevant planning authority”—

(a)in relation to England and Wales, means the mineral planning authority within the meaning of the M44Town and Country Planning Act 1990; and

(b)in relation to Scotland, means the planning authority within the meaning of Part IX of the M45Local Government (Scotland) Act 1973.

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Amendments (Textual)

F5Words in s. 54(6) substituted (27.5.1997) by 1997 c. 11, s. 4, Sch. 2 para. 56(1)

Modifications etc. (not altering text)

C4S. 54: transfer of functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Marginal Citations

Health and safety regulations as to rescue serviceE+W+S

55 Health and safety regulations as to rescue service.E+W+S

(1)The power to make health and safety regulations shall include power, in relation to any requirement of any such regulations that a person carrying on coal-mining operations is to be a participant in a mine rescue scheme approved by the Secretary of State, to provide—

(a)for approval to be given to or withdrawn from any scheme only after such consultation as may be specified or described in the regulations; and

(b)for the approved schemes to be confined to those which appear to the Secretary of State to be such as secure that it is reasonably practicable for every licensed operator who is required to do so to participate, on reasonable terms, in an approved scheme.

(2)In subsection (1) above the references to a mine rescue scheme are references to any scheme or other arrangements the participants in which are entitled, in an emergency, to the services of persons with the expertise and equipment required for rescuing individuals from underground.

(3)In subsection (1) above “health and safety regulations” means regulations under section 15 of the M46Health and Safety at Work etc. Act 1974; and the preceding provisions of this section shall be without prejudice to the generality of any provisions of that Act as to the matters that may be included in any such regulations.

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Marginal Citations

Registration of rightsE+W+S

56 Registration of rights.E+W+S

(1)The Authority shall establish and maintain a register in which it shall enter particulars of—

(a)every notice under section 38 above a copy of which is sent to the Authority by the person giving it;

(b)every notice published under section 2 of the 1975 Act (notices conferring right for Corporation to withdraw support) a copy of which has been supplied to the Authority by the Corporation;

(c)every public notice under paragraph 6(2) of Schedule 2 to the M47Coal Act 1938 (withdrawal of support) a copy of which has been supplied to the Authority by the Corporation;

(d)every notice given by the Authority under section 41 above;

(e)every notice given for the purposes of section 49 above a copy of which is sent to the Authority by the person giving it;

(f)every notice published under section 3 of the 1975 Act (notices conferring right for the Corporation to work coal in copyhold land) a copy of which has been supplied to the Authority by the Corporation;

(g)every notice sent to the Authority under paragraph 9 of Schedule 7 to this Act and so much of any information known to the Authority as—

(i)relates to any compensation paid under section 3(4) of the 1975 Act or to any agreement for the purposes of paragraph 8 of Schedule 2 to the 1975 Act, and

(ii)is information which, in the case of any compensation or agreement under or for the purposes of Part I of Schedule 7 to this Act, would fall to be included in such a notice;

(h)the following, that is to say—

(i)every compulsory rights order under the M48Opencast Coal Act 1958,

(ii)every order under section 15 or 16 of that Act (rights of way, drainage and water supply), and

(iii)every designation under section 39 of that Act,

in so far as it is an order or designation made by the Authority or an order or designation of which a copy has been supplied to the Authority by the Corporation;

(i)every confirmation of an order mentioned in paragraph (h)(i) or (ii) above and every notice or other document for the purposes of that Act of 1958 which is, or a copy of which is, sent to the Authority under that Act or a copy of which has been supplied to the Authority by the Corporation; and

(j)every agreement entered into with a local planning authority (within the meaning of that Act of 1958) for the purposes of section 15(5) of that Act (agreements as to the restoration of a right of way).

(2)Where a copy of any notice under section 38 above is sent to the Authority more than fourteen days before the end of the period of three months mentioned in subsection (3)(a) of that section, the duty of the Authority, subject to subsection (3) below, to enter particulars of that notice in the register maintained under this section shall be discharged before the end of that period of three months.

(3)The Authority shall not enter in the register maintained under this section any particulars of—

(a)any notice under section 38 above, or

(b)any notice given for the purposes of section 49 above on or after the restructuring date,

unless it is satisfied that the notice has been properly given in accordance with the requirements of this Act and, in the case of a notice under section 38 above, that the requirements of section 39(4) above have been complied with in relation to that notice.

(4)It shall be the duty of the Authority to preserve a copy of every document particulars of which are, by virtue of subsection (1) above, for the time being entered in the register maintained under this section.

(5)If any person furnishes the Authority with any information for the purposes of this section which he knows to be false in a material particular or recklessly furnishes the Authority with any information for those purposes which is false in a material particular, he shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(6)References in this section to the supply to the Authority by the Corporation of a copy of any document include references to the transfer in accordance with a restructuring scheme of possession of the document itself or of any copy of that document.

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Marginal Citations

Part IVE+W+S+N.I. General and Supplemental

Information provisionsE+W+S+N.I.

57 Public access to information held by the Authority.E+W+S+N.I.

(1)This section applies to the information contained in any register maintained by the Authority under section 35 or 56 above and to any of the following information which is for the time being in the possession of the Authority, that is to say—

(a)information about the geological or physiographical features or characteristics of any land in which any unworked coal or any coal mine is situated or of any other land;

(b)information about the identity of the persons in whom interests and rights in or in relation to any unworked coal or any coal mine have been vested;

(c)the contents of the plans of any coal mines or coal workings;

(d)any other information about proposals for the carrying on by any person of any coal-mining operations;

(e)information about any subsidence or subsidence damage or about claims made under the 1991 Act; and

(f)information about such other matters as the Secretary of State may by regulations prescribe for the purposes of this section.

(2)Subject to subsections (3) and (4) below, it shall be the duty of the Authority to establish and maintain arrangements under which every person is entitled, in such cases, on payment to the Authority of such fee and subject to such other conditions as the Authority may consider appropriate—

(a)to be furnished with any information to which this section applies;

(b)to have the contents of so much of the records maintained by the Authority as contains any information to which this section applies made available to him, at such office of the Authority as it may determine, for inspection at such times as may be reasonable; and

(c)to make or be supplied with copies of, or of extracts from, so much of the records maintained by the Authority as contains any information to which this section applies.

(3)Subject to subsection (5) below, nothing in this section shall require or authorise the disclosure by the Authority of any information which—

(a)relates to the affairs of an individual or specifically to the affairs of any body of persons (whether corporate or unincorporate), including the Authority itself, and

(b)is not contained in a register maintained under section 35 or 56 above,

if the disclosure of that information would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or, as the case may be, of that body.

(4)Subject to subsection (5) below, nothing in this section shall require or authorise the disclosure by the Authority, without the consent of the person to whom the Authority owes the obligation of confidence, of any information which—

(a)has been furnished to the Authority—

(i)in pursuance of the provisions of a licence under Part II of this Act;

(ii)in pursuance of any provisions of an agreement entered into in connection with, or with any proposals for, the carrying on of any activities in the course of any exploration for coal or of any activities for which a licence under section 2 of the M49Petroleum (Production) Act 1934 is required; or

(iii)for the purposes of any application to the Authority for the grant of a licence under Part II of this Act, for the making of such an agreement or for the transfer or creation of any interests or rights in or in relation to any land;

and

(b)under the provisions of the licence under Part II of this Act, of that agreement or of any undertaking given by the Authority to the applicant for the purposes of that application, is to be treated as subject to an obligation of confidence owed by the Authority to any other person.

(5)The information that is to be excluded by virtue of subsections (3) and (4) above from the information which is to be made available to any person in pursuance of arrangements under this section shall not include any information of a description that appears to the Authority to comprise information relating to matters which are or may be relevant to the safety of members of the public or of any particular individual or individuals other than the person whose consent is required for its disclosure.

(6)For the purposes of this section it shall be the duty of the Authority to maintain such records as it considers appropriate of any information which comes into its possession and is information to which this section applies.

(7)The power to make regulations for the purposes of this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(8)In this section “records” includes registers, maps, plans and accounts, as well as computer records and other records kept otherwise than in documentary form.

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Marginal Citations

58 Liability for inaccurate information furnished to the Authority.E+W+S

(1)This section applies where the conditions of a licence under Part II of this Act contain provision stating—

(a)that information of a specified description which is furnished to the Authority in pursuance of the conditions of the licence may be disclosed by the Authority for specified purposes in pursuance of arrangements under section 57 above; and

(b)that any information of that description that is disclosed by the Authority for any of those purposes is to be treated, for the purposes of this section, as information whose accuracy the operator has undertaken to secure.

(2)The licensed operator shall owe a duty to the Authority and to every person likely to be affected by any inaccuracy in information disclosed by the Authority for any of the specified purposes to exercise all due diligence to secure—

(a)that the Authority is furnished, in accordance with the conditions of the licence, with all the information of the specified descriptions which the operator is required by those conditions to furnish to the Authority; and

(b)that the information of those descriptions which is furnished by the operator to the Authority is accurate in every material particular.

(3)Where a duty is owed by any person to another person by virtue of subsection (2) above, any breach of that duty which causes that other person to sustain loss or damage shall be actionable against the person in breach at the suit or instance of the other person.

(4)A person shall not be liable for any breach of a duty mentioned in subsection (2) above except—

(a)in respect of a disclosure of information made by the Authority for a specified purpose; and

(b)to the Authority or the person to whom the disclosure was made.

(5)This section shall be without prejudice to the liability of any person for breach of the duty to comply with an enforcement order (within the meaning of Part II of this Act).

59 Information to be kept confidential by the Authority.E+W+S

(1)Subject to the following provisions of this section, it shall be the duty of the Authority to establish and maintain such arrangements as it considers best calculated to secure that information which—

(a)is in the Authority’s possession in consequence of either the carrying out of any of its functions or the transfer to the Authority, in accordance with a restructuring scheme, of any records, and

(b)relates to the affairs of any individual or to any particular business,

is not, during the lifetime of that individual or so long as that business continues to be carried on, disclosed to any person without the consent of that individual or, as the case may be, of the person for the time being carrying on that business.

(2)Nothing in subsection (1) above shall authorise or require the making of arrangements which prevent the disclosure of information—

(a)for the purpose of facilitating the carrying out by the Secretary of State, the Treasury or the Authority of any of his, their or, as the case may be, its functions under this Act;

(b)in pursuance of arrangements made under section 57 above;

(c)for the purpose of facilitating the carrying out by any relevant authority of any of the functions in relation to which it is such an authority;

(d)in connection with the investigation of any criminal offence or for the purposes of criminal proceedings;

(e)for the purposes of any civil proceedings brought under this Act or any relevant enactment, of any proceedings before the Lands Tribunal or the Lands Tribunal for Scotland under the 1991 Act or of any arbitration for which provision is made by regulations under section 47(2) above;or

(f)in pursuance of any Community obligation.

(3)For the purposes of this section—

(a)every Minister of the Crown and local weights and measures authority in Great Britain is a relevant authority in relation to his or, as the case may be, their functions under any relevant enactment;

[F6(b)the Secretary of State, the Treasury and the Financial Services Authority are relevant authorities in relation to their functions under the Financial Services and Markets Act 2000 and the enactments relating to companies and insolvency;]

(c)an inspector appointed under the enactments relating to companies, an official receiver and any recognised professional body for the purposes of section 391 of the M50Insolvency Act 1986 are relevant authorities in relation to their functions as such;

(d)every enforcing authority, within the meaning of Part I of the M51Health and Safety at Work etc. Act 1974, is a relevant authority in relation to its functions under any relevant statutory provision, within the meaning of that Act;

[F7(dd)the Civil Aviation Authority is a relevant authority in relation to its functions under Part I of the Transport Act 2000;]and

(e)the following are relevant authorities in relation to all of their functions, that is to say—

(i)the Comptroller and Auditor General;

(ii)the Health and Safety Executive and the Health and Safety Commission;

(iii)the National Rivers Authority;

(iv)the [F8Competition Commission];

(v)the Director General of Fair Trading and the Director General of Electricity Supply;

[F9(vi)the Scottish Environment Protection Agency.]

(4)In subsections (2) and (3) above “relevant enactment” means any of the following, that is to say—

(a)the M52Trade Descriptions Act 1968;

(b)the M53Fair Trading Act 1973;

(c)the Consumer Credit Act 1974;

(d)Part II of the M54Control of Pollution Act 1974;

F10(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)the M55Estate Agents Act 1979;

(h)the M56Competition Act 1980;

(i)the M57Consumer Protection Act 1987;

(j)the M58Electricity Act 1989;

(k)the M59Water Resources Act 1991;

(l)the M60Land Drainage Act 1991;

(m)any subordinate legislation made for the purpose of securing compliance with the Directive of the Council of the European Communities dated 10th September 1984 (No. 84/450/EEC) on the approximation of the laws, regulations and administrative provisions of the member States concerning misleading advertising.

[F11(n)the Competition Act 1998.]

(5)Nothing in any arrangements under this section shall—

(a)limit the matters which may be contained in a report under section 60 below or section 49 of the 1991 Act (report on operation of that Act); or

(b)restrict or prohibit the disclosure of any information which has already been made public—

(i)as part of such a report;

(ii)in pursuance of any arrangements under section 57 above;

(iii)under any provision of section 31 or 32 above or Part III of this Act requiring the publication of any notice or other matter; or

(iv)in the exercise of any power or the performance of any duty which is conferred or imposed on any person apart from this Act.

(6)The Secretary of State may by order made by statutory instrument modify subsections (2) to (5) above so as to add to or restrict the descriptions of disclosures which are to be excluded from any prohibition contained in arrangements under subsection (1) above; and the power to make an order under this subsection shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(7)Subject to subsection (8) below, where any licence under Part II of this Act or any such undertaking as is mentioned in section 57(4)(b) above contains provision for any information furnished to the Authority to be treated as subject to such an obligation of confidence as restricts the disclosure or use of that information without the consent of the person to whom that obligation is to be owed—

(a)the requirement to comply with that obligation shall be a duty owed by the Authority to that person; and

(b)any such disclosure or use, in contravention of that provision, of any information as causes the person to whom it is owed to sustain loss or damage shall be actionable against the Authority at the suit or instance of that person.

(8)Subsection (7) above shall not apply, except in so far as the provisions of the licence or undertaking contain express provision to the contrary, to any disclosure of information which is for the time being excluded by virtue of subsections (2) to (5) above from the prohibition contained in arrangements under subsection (1) above.

(9)In this section “records” has the same meaning as in section 57 above.

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Amendments (Textual)

F6S. 59(3)(b) substituted (3.7.2002) by S.I. 2002/1555, art. 23

F8Words in s. 59(3)(e)(iv) substituted (1.4.1999) by S.I. 1999/506, art. 34

F9S. 59(3)(e)(vi) substituted (1.4.1996) by S.I. 1996/973, reg. 16.

Modifications etc. (not altering text)

C5S. 59(2): disclosure powers extended (14.12.2001) by 2001 c. 24, s. 17, Sch. 4 Pt. I para. 35

Marginal Citations

60 Annual report of the Authority.E+W+S

(1)As soon as reasonably practicable after the end of each financial year the Authority shall prepare a report on its activities during that year and shall send a copy of that report to the Secretary of State.

(2)The Authority’s annual report—

(a)shall set out—

(i)all such directions under section 6 above, this section or Part II of Schedule 1 to this Act, and

(ii)all such determinations under that Part of that Schedule,

as have been given to it or made during the financial year to which the report relates;

(b)shall incorporate the statement of accounts prepared by the Authority in respect of the accounting year ending with the financial year in question, together with a copy of the report on those accounts which is required to be laid before Parliament under paragraph 15(4) of Schedule 1 to this Act; and

(c)shall otherwise be in such form, and contain such information, as may be specified in a direction given to it by the Secretary of State.

(3)The information contained in the Authority’s annual report shall not include any such information as falls to be excluded by virtue of subsection (3) or (4) of section 57 above from the information which is to be made available in pursuance of arrangements under that section.

(4)Nothing in subsection (3) above shall prevent the inclusion in the Authority’s annual report of any information which has already been made public by virtue of any provision of this Act or of any other enactment.

(5)In consequence of section 49 of the 1991 Act (report on operation of that Act), it shall not be necessary for the Authority’s annual report to include any report on the operation of that Act.

(6)As soon as reasonably practicable after he has received the Authority’s annual report for any financial year the Secretary of State shall lay a copy of it before each House of Parliament.

(7)It shall be the duty of the Authority—

(a)to arrange for copies of every annual report of the Authority to be published in such manner as it considers appropriate for securing that the information contained in it is available to the persons likely to be interested in it; and

(b)to send the Secretary of State such number of copies of the published report as he may require.

61 Report on financial assistance for coal-mining museums.E+W+S

As soon as reasonably practicable after the end of the period of three years beginning with the restructuring date, the Secretary of State shall prepare and lay before Parliament a report setting out particulars of—

(a)the financial assistance provided during that period to coal-mining museums, so far as it has involved the making of payments for that purpose to any person by the Secretary of State;

(b)the manner in which the provision of that financial assistance has been administered; and

(c)the use to which that financial assistance has been put by the coal-mining museums which have received it.

SupplementalE+W+S+N.I.

62 Financial provisions.E+W+S

There shall be paid out of money provided by Parliament—

(a)any administrative expenses incurred by the Secretary of State or the Treasury in consequence of the provisions of this Act;

(b)any sums required by any Minister of the Crown or Government department for meeting obligations arising in consequence of that Minister or department becoming entitled or subject, in accordance with any restructuring scheme, to any property, rights or liabilities; and

(c)any increase attributable to this Act in the sums payable out of money so provided under any other Act.

63 Provisions relating to the service of documents.E+W+S

(1)Any document required or authorised by virtue of this Act to be served on any person may be served—

(a)by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address;

(b)if the person is a body corporate, by serving it in accordance with paragraph (a) above on the secretary or clerk of that body; or

(c)if the person is a partnership, by serving it in accordance with paragraph (a) above on a partner or a person having the control or management of the partnership business;

and any document required or authorised by this Act to be served on the Authority or the Corporation may be served by leaving it at, or sending it by post to, any office of the Authority or, as the case may be, of the Corporation.

(2)For the purposes of this section and section 7 of the M61Interpretation Act 1978 (which relates to the service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—

(a)in the case of service on a body corporate or its secretary or clerk, it shall be the address of the registered or principal office of the body; and

(b)in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the address of the principal office of the partnership;

and for the purposes of this subsection the principal office of a company registered outside the United Kingdom, or of a partnership carrying on business outside the United Kingdom, is its principal office within the United Kingdom.

(3)If a person to be served by virtue of this Act with any document by another has specified to that other an address within the United Kingdom, other than his proper address (as determined in accordance with subsection (2) above), as one at which he or someone on his behalf will accept documents of the same description as that document, that address shall also be treated as a proper address of that person for the purposes of this section and for the purposes of the said section 7 in its application to this section.

(4)References in this section to the service of a document on any person include references to the giving, making or sending to that person of any notice, direction, claim or request which is in writing.

(5)This section shall not apply to any document in relation to the service of which provision is made by rules of court.

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Modifications etc. (not altering text)

C6S. 63 applied (31.10.1994) by 1994 c. 45, s. 51 (as substituted (31.10.1994) by 1994 c. 21, s. 67, Sch. 9 para. 41(3)).

Marginal Citations

64 Offences by bodies corporate etc.E+W+S

(1)Where a body corporate is guilty of an offence under this Act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, then he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2)Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3)Where any partnership in Scotland or any unincorporated association in Scotland which is not a partnership is guilty of an offence under this Act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)any partner in the partnership or, as the case may be, any person concerned in the management or control of the association, or

(b)any person purporting to act in any such capacity,

then he, as well as the partnership or association, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

65 Interpretation.E+W+S+N.I.

(1)In this Act, except in so far as the context otherwise requires—

  • the 1946 Act” means the M62Coal Industry Nationalisation Act 1946;

  • the 1975 Act” means the M63Coal Industry Act 1975;

  • the 1991 Act” means the M64Coal Mining Subsidence Act 1991;

  • the Authority” means the Coal Authority;

  • business” includes any trade or profession;

  • coal” means bituminous coal, cannel coal and anthracite;

  • coal mine” includes—

    (a)

    any space excavated underground for the purposes of coal-mining operations and any shaft or adit made for those purposes,

    (b)

    any space occupied by unworked coal, and

    (c)

    a coal quarry and opencast workings of coal;

  • coal-mining operations” includes—

    (a)

    searching for coal and boring for it,

    (b)

    winning, working and getting it (whether underground or in the course of opencast operations),

    (c)

    bringing underground coal to the surface, treating coal and rendering it saleable,

    (d)

    treating coal in the strata for the purpose of winning any product of coal and winning, working or getting any product of coal resulting from such treatment, and

    (e)

    depositing spoil from any activities carried on in the course of any coal-mining operations and draining coal mines,

    and an operation carried on in relation to minerals other than coal is a coal-mining operation in so far as it is carried on in relation to those minerals as part of, or is ancillary to, operations carried on in relation to coal;

  • company” has the same meaning as in the M65Companies Act 1985;

  • contravention” includes a failure to comply, and cognate expressions shall be construed accordingly;

  • the Corporation” means the British Coal Corporation or, in relation to times before the commencement of section 1 of the M66Coal Industry Act 1987, the National Coal Board;

  • debenture” includes debenture stock;

  • the dissolution date” means the date appointed under section 23 above for the dissolution of the Corporation;

  • financial year” means the twelve months ending with 31st March;

  • holder”, in relation to a licence under Part II of this Act, means the following person (whether or not the authorisation contained in the licence remains in force), that is to say—

    (a)

    in a case where there has been no such transfer in relation to that licence as is mentioned in section 27(5) above, the person to whom the licence was granted, and

    (b)

    in any other case, the person to whom the rights and obligations of the holder of that licence were last transferred;

  • interest”, in relation to land, includes estate;

  • liability”, in relation to the transfer of liabilities from one person to another or to the modification of any liability, does not include any criminal liability;

  • licensed operator” means any person who is for the time being either—

    (a)

    authorised by a licence under Part II of this Act to carry on coal-mining operations to which section 25 above applies, or

    (b)

    authorised by virtue of subsection (3) of that section to carry on any such operations;

  • modifications” includes additions, alterations and omissions, and cognate expressions shall be construed accordingly;

  • the restructuring date” means the date appointed as that date under section 7(1) above;

  • restructuring scheme” means a scheme under section 12 above;

  • securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;

  • shares” includes stock;

  • subordinate legislation” has the same meaning as in the M67Interpretation Act 1978;

  • subsidence damage” has the same meaning as in the 1991 Act;

  • subsidiary” and “wholly-owned subsidiary” have the meanings given by section 736 of the M68Companies Act 1985;

  • successor company” means any company which, at a time when it is wholly owned by the Crown, becomes entitled or subject, in accordance with any restructuring scheme, to any property, rights or liabilities;

  • undertaking”, in relation to the Corporation, includes the undertakings of its wholly-owned subsidiaries.

(2)References in this Act to the treatment of coal in the strata shall be taken not to include references to any operations which—

(a)are carried on in relation to coal in or to which any oil or gas that exists in its natural condition in the strata is absorbed or adsorbed; and

(b)are so carried on wholly for the purpose of winning or getting that oil or gas;

and in this subsection “oil or gas” means oil or gas within the meaning of section 9 above.

(3)References in this Act to the creation, in favour of any person, of an interest in property include references to the vesting in that person of a freehold or leasehold interest in property.

(4)For the purposes of this Act a company shall be regarded as wholly owned by the Crown at any time if it is—

(a)a company limited by shares in which there are at that time no issued shares held otherwise than by, or by a nominee of, the Treasury, the Secretary of State or any other company wholly owned by the Crown; or

(b)a company limited by guarantee of which no person other than the Treasury or the Secretary of State, or a nominee of the Treasury or the Secretary of State, is a member.

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Marginal Citations

66 Crown application.E+W+S

(1)This Act shall have effect in relation to any land or other property in which there is a Crown or Duchy interest as it has effect in relation to land or other property in which there is no such interest.

(2)So much of this Act as contains provision for the modification of the rights or liabilities to which any person is or may become entitled or subject shall bind the Crown.

(3)Nothing in this section shall be taken as requiring a licence under Part II of this Act for the carrying on by or on behalf of the Crown of any coal-mining operations.

(4)Where this Act modifies any enactment in relation to which provision is made for its application to the Crown that differs from the provision made by this section, that provision, and not this section, shall have effect in relation to the modification.

(5)In this section “Crown or Duchy interest” means any interest belonging to Her Majesty or to the Duchy of Cornwall or any interest belonging to a Government department or held in trust for the purposes of a Government department.

67 Amendments, transitional provisions, savings and repeals.E+W+S+N.I.

(1)The enactments mentioned in Schedule 9 to this Act shall have effect subject to the amendments there specified (being minor amendments or amendments consequential on the preceding provisions of this Act).

(2)The Secretary of State may by order made by statutory instrument make such consequential modifications of any provision contained in any Act passed before the relevant commencement date, or in any subordinate legislation made before that date, as appear to him necessary or expedient—

(a)in respect of any reference in that Act or subordinate legislation to the Corporation;

(b)in respect of any reference (in whatever terms) in that Act or subordinate legislation to a person carrying on coal-mining operations or to such operations;

(c)in respect of any reference in that Act or subordinate legislation to any enactment repealed or amended by this Act; or

(d)in the case of a provision contained in subordinate legislation, in respect of any other inconsistency between that subordinate legislation and this Act;

and in this subsection “the relevant commencement date”, in relation to any modifications, means the date of the coming into force of the provisions of this Act on which they are consequential.

(3)If it appears to the Secretary of State to be appropriate to do so—

(a)for the purposes of, or in consequence of, the coming into force of any enactment contained in this Act, or

(b)in consequence of the effect or operation at any time after the restructuring date of any such enactment or of anything done under any such enactment,

he may by order made by statutory instrument repeal, amend or re-enact (with or without modifications) any provision contained in any local Act (whenever passed), including, in the case of an order by virtue of paragraph (b) above, a provision amended by virtue of subsection (2) or paragraph (a) above.

(4)The power of the Secretary of State to make provision by an order under subsection (3) above shall include power—

(a)to provide for general modifications of local Acts of a specified description and for modifications making different provision for different cases;

(b)to make such supplemental, incidental, consequential and transitional provision as the Secretary of State considers appropriate in relation to any other provisions of such an order; and

(c)in the case of an order made after the restructuring date, to require provision contained in the order to be treated as if it came into force on that date.

(5)An order shall not be made under this section for modifying any public general Act unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

(6)A statutory instrument containing an order under this section a draft of which is not required to have been laid before Parliament under subsection (5) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7)The transitional provisions and savings contained in Schedule 10 to this Act shall have effect; and those provisions and savings shall be without prejudice to sections 16 and 17 of the M69Interpretation Act 1978 (effect of repeals).

(8)The enactments mentioned in Schedule 11 to this Act (which include some enactments which are spent) are hereby repealed to the extent specified in the third column of that Schedule.

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Marginal Citations

68 Short title, commencement and extent.E+W+S+N.I.

(1)This Act may be cited as the Coal Industry Act 1994.

(2)The following provisions of this Act shall come into force on the restructuring date, that is to say—

(a)sections 10, 11, 18 and 23;

(b)sections 31 to 34 and section 36;

(c)sections 38 to 44 and 48 to 53, section 55 and Schedules 6, 7 and 8;

(d)Schedule 9, except (subject to the power to appoint the restructuring date under subsection (4) below) for so much of that Schedule as relates to—

(i)the M70Public Health Act 1961,

(ii)the M71Licensing Act 1964,

F12(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv)the M72Gaming Act 1968,

F13(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(vi)the M73Overseas Development and Co-operation Act 1980,

(vii)the M74National Audit Act 1983,

(viii)the M75Road Traffic Regulation Act 1984,

(ix)sections 315(4)(b) and 317 of the M76Town and Country Planning Act 1990, and

(x)the M77Leasehold Reform, Housing and Urban Development Act 1993;

(e)Part II of Schedule 11; and

(f)subsections (1) and (8) of section 67 so far as they relate to provisions coming into force on that date by virtue of paragraphs (d) and (e) above.

(3)The following provisions of this Act shall come into force on the dissolution date, that is to say—

(a)Schedule 9, so far as it relates to—

(i)the M78Public Health Act 1961,

(ii)the M79Overseas Development and Co-operation Act 1980,

(iii)the M80National Audit Act 1983,

(iv)the M81Road Traffic Regulation Act 1984, and

(v)the M82Leasehold Reform, Housing and Urban Development Act 1993;

(b)Part IV of Schedule 11; and

(c)subsections (1) and (8) of section 67 so far as they relate to provisions coming into force on that date by virtue of paragraphs (a) and (b) above.

(4)Apart from the provisions to which subsections (2) and (3) above apply and the provisions specified in subsection (6) below (which come into force on the passing of this Act), this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint.

(5)An order under subsection (4) above may—

(a)appoint different days for different provisions and for different purposes; and

(b)make any such transitional provision (including provision modifying for transitional purposes any of the provisions of this Act or of any enactment amended or repealed by this Act) as the Secretary of State considers appropriate in connection with the bringing into force of any provision of this Act;

but, where an order under that subsection makes any such provision as is mentioned in paragraph (b) above, the statutory instrument containing the order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)The provisions of this Act mentioned in subsection (4) above are this section and—

(a)sections 7 to 9;

(b)sections 12 to 14 and 17 and Schedule 2;

(c)section 54;

(d)sections 62 to 66;

(e)section 67(2) to (6); and

(f)Part I of Schedule 11 to this Act and subsection (8) of section 67 so far as it relates to that Part of that Schedule.

(7)The following provisions of this Act do not extend to Scotland, that is to say—

(a)sections 49 and 50 and Schedule 7; and

(b)so much of Schedules 9 and 11 as relates to enactments extending to England and Wales only.

(8)This Act, except for—

(a)sections 7 to 9, 12 and 13 and Schedule 2,

(b)sections 20 and 21 and Schedule 4,

(c)so much of Schedule 1 as amends the M83Parliamentary Commissioner Act 1967, the M84House of Commons Disqualification Act 1975 and the M85Northern Ireland Assembly Disqualification Act 1975,

(d)so much of Schedule 9 as amends any enactment that extends to Northern Ireland,

(e)the repeal, by virtue of their inclusion in Schedule 11, of—

(i)the entries relating to the Corporation in the M86Statutory Corporations (Financial Provisions) Act 1975, the M87House of Commons Disqualification Act 1975, the M88Northern Ireland Assembly Disqualification Act 1975 and the M89National Audit Act 1983,

(ii)the M90Coal Consumers’ Councils (Northern Irish Interests) Act 1962,

(iii)section 2(4) and (5) of the M91Overseas Development and Co-operation Act 1980 and the entry relating to the Corporation in Schedule 1 to that Act,

(iv)section 1(2) of the M92Continental Shelf Act 1964 and section 2(3) of the M93Territorial Sea Act 1987,

(v)so much of the M94Coal Industry Act 1987 as extends to Northern Ireland, and

(vi)the M95British Coal and British Rail (Transfer Proposals) Act 1993,

and

(f)so much of this Part as is required for the purpose of giving effect to the extension to Northern Ireland of the provisions mentioned in the preceding paragraphs,

does not extend to Northern Ireland.

(9)This Act extends to the Isle of Man for the purpose of giving effect there to the repeal by this Act of subsection (3) of section 2 of the Territorial Sea Act 1987, to paragraph 10 of Schedule 10 and to so much of any restructuring scheme or any agreement under section 13 above as relates to rights mentioned in that paragraph; and, subject to that paragraph, that repeal shall accordingly include the repeal of that subsection as it extends to the Isle of Man by virtue of the M96Territorial Sea Act 1987 (Isle of Man) Order 1991.

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Amendments (Textual)

F12S. 68(2)(d)(iii) repealed (19.11.1998) by 1998 c. 43, s. 1(1), Sch. 1 Pt. IV, Group 2

F13S. 68(2)(d)(v) repealed (27.5.1997) by 1997 c. 11, s. 3, Sch. 1 Pt. I

Marginal Citations

SCHEDULES

Section 1.

SCHEDULE 1E+W+S+N.I. The Coal Authority

Part IE+W+S+N.I. Organisation and Proceedings

MembershipE+W+S

1(1)Subject to the following provisions of this paragraph, a member of the Authority shall hold and vacate office in accordance with the terms of his appointment.E+W+S

(2)Any appointment of a person as a member of the Authority shall be for a term not exceeding five years, but a person who ceases to be such a member at the end of any such term shall be eligible for re-appointment.

(3)A member of the Authority may at any time by notice to the Secretary of State resign his office.

(4)The Secretary of State may remove a member of the Authority if he is satisfied—

(a)that that member has been absent from meetings of the Authority for a period of more than three consecutive months without the permission of the Authority;

(b)that that member has been adjudged bankrupt, that his estate has been sequestrated or that he has made a composition or arrangement with, or granted a trust deed for, his creditors; or

(c)that that member is unable or unfit to carry out the functions of a member.

Remuneration, pensions etc.E+W+S

2(1)The Authority shall pay to its members such remuneration, and such travelling and other allowances, as may be determined by the Secretary of State.E+W+S

(2)The Authority shall, if so required by the Secretary of State, pay—

(a)such pension, allowances or gratuities to or in respect of a person who has been or is a member of the Authority, or

(b)such payments towards provision for the payment of a pension, allowances or gratuities to or in respect of such a person,

as may be determined by the Secretary of State.

(3)If, when any member of the Authority ceases to hold office, the Secretary of State determines that there are special circumstances which make it right that that member should receive compensation, the Authority shall pay to him a sum by way of compensation of such amount as may be so determined.

(4)The approval of the Treasury shall be required for the making of a determination under this paragraph.

StaffE+W+S

3(1)The Authority may, with the approval of the Secretary of State as to terms and conditions of service, appoint such officers and employees as it may determine.E+W+S

(2)No member of the Authority or other person shall be appointed by the Authority to act as its chief executive unless the Secretary of State has consented to the appointment of that person.

(3)The Authority may—

(a)pay such pensions, allowances or gratuities to or in respect of any persons who have been or are its officers or employees as it may, with the approval of the Secretary of State, determine;

(b)make such payments as it may so determine towards provision for the payment of pensions, allowances or gratuities to or in respect of any such persons; and

(c)provide and maintain such schemes as it may so determine (whether contributory or not) for the payment of pensions, allowances or gratuities to or in respect of any such persons.

(4)Any reference in sub-paragraph (3) above to pensions, allowances or gratuities to or in respect of any such persons as are mentioned in that sub-paragraph includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any of the Authority’s officers or employees who suffer loss of office or employment or loss or diminution of emoluments.

(5)If any person—

(a)on ceasing to hold any office or employment with the Authority, becomes or continues to be one of its members, and

(b)was, by reference to his office or employment with the Authority, a participant in a pension scheme maintained by the Authority for the benefit of any of its officers or employees,

the Authority may, with the approval of the Secretary of State, make provision for him to continue to participate in that scheme, on such terms and conditions as it may with the consent of the Secretary of State determine, as if his service as a member were service as an officer or employee of the Authority; and any such provision shall be without prejudice to paragraph 2 above.

(6)In addition, service as an officer or employee of the Authority shall be included in the kinds of employment to which a scheme under section 1 of the M97Superannuation Act 1972 can apply; and, accordingly, in Schedule 1 to that Act (which lists the kinds of employment to which a scheme can apply), the following entry shall be inserted at the appropriate place in the list of “Other Bodies”, that is to say— “ Coal Authority. ”

(7)The Authority shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to sub-paragraph (6) above in the sums payable out of money provided by Parliament under the Superannuation Act 1972.

(8)Where any person is both a member of the Authority and a participant by reference to his service as an officer or employee of the Authority in a scheme under section 1 of the Superannuation Act 1972, the Treasury may determine that his service as such a member (including service before he became an officer or employee) shall be treated for the purposes of the scheme as service as an employee of the Authority; and any such determination shall be without prejudice to paragraph 2 above.

(9)The consent of the Treasury shall be required for the giving of an approval under this paragraph.

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Marginal Citations

Proceedings of AuthorityE+W+S

4Subject to the following provisions of this Schedule, the Authority may regulate its own procedure (including quorum).E+W+S

Delegation of powersE+W+S

5Anything authorised or required by or under any enactment to be done by the Authority may be done by any member, officer or employee of the Authority who has been authorised for the purpose, whether generally or specially, by the Authority.E+W+S

Interests of membersE+W+S

6(1)A member of the Authority who is in any way directly or indirectly interested in any matter that is brought up for consideration at a meeting of the Authority shall disclose the nature of his interest to the meeting.E+W+S

(2)Where such a disclosure is made, the disclosure shall be recorded in the minutes of the meeting and the member shall not take any part in any deliberation or decision of the Authority with respect to that matter if either—

(a)it relates to any application made to the Authority or to any licence or contract which the Authority has granted or entered into or is considering granting or entering into; or

(b)the Authority determines that the nature of the matter, the extent of the member’s interest and any prejudicial effect of his joining in the consideration of that matter are such that the member should not take part.

(3)For the purposes of sub-paragraph (1) above, a general notification given at a meeting of the Authority by any of its members to the effect that—

(a)he is a member of a specified body corporate or firm, and

(b)he is to be regarded as interested in any matter involving that body or firm which falls to be considered after the giving of the notification,

shall be regarded as a sufficient disclosure of his interest in relation to any such matter.

(4)A member of the Authority who is required under this paragraph to make a disclosure at any meeting need not attend in person at the meeting in order to make the disclosure if he takes reasonable steps to secure that the disclosure is made by a notice which is taken into consideration and read at the meeting.

Vacancies and defective appointmentsE+W+S

7The validity of any proceedings of the Authority shall not be affected by a vacancy amongst its members, by any defect in the appointment of a member or by any contravention of the requirements of paragraph 6 above.E+W+S

MinutesE+W+S

8(1)Minutes shall be kept of proceedings of the Authority.E+W+S

(2)Minutes of any such proceedings shall be evidence of those proceedings if they are signed by a person purporting to have acted as chairman of the proceedings to which the minutes relate or of any subsequent proceedings in the course of which the minutes were approved as a correct record.

(3)Where minutes of any such proceedings have been signed as mentioned in sub-paragraph (2) above, those proceedings shall, unless the contrary is shown, be deemed to have been regularly convened and constituted.

Application of seal and proof of instrumentsE+W+S

9(1)The application of the seal of the Authority shall be authenticated by the signature of any member, officer or employee of the Authority who has been authorised for the purpose, whether generally or specially, by the Authority.E+W+S

(2)Every document purporting to be an instrument made or issued by or on behalf of the Authority and to be duly executed under the seal of the Authority, or to be signed or executed by a person authorised by the Authority for the purpose, shall be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

(3)In this paragraph the reference to the signature of a person includes a reference to a facsimile of a signature by whatever process reproduced; and “signed” shall be construed accordingly.

The Parliamentary CommissionerE+W+S+N.I.

10In the M98Parliamentary Commissioner Act 1967, in Schedule 2 (departments and authorities subject to investigation), there shall be inserted (at the appropriate place) the following entry—E+W+S+N.I.

“ Coal Authority. ”

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Marginal Citations

Parliamentary disqualification etc.E+W+S+N.I.

11In the M99House of Commons Disqualification Act 1975, in Part II of Schedule 1 (bodies of which all the members are disqualified), there shall be inserted (at the appropriate place) the following entry—E+W+S+N.I.

“ The Coal Authority. ”;

and the like insertion shall be made in Part II of Schedule 1 to the M100Northern Ireland Assembly Disqualification Act 1975.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

InterpretationE+W+S

12In this Part of this Schedule, “member”, in relation to the Authority, includes its chairman and deputy chairman.E+W+S

Part IIE+W+S Financial Provisions

Financial dutiesE+W+S

13(1)The Secretary of State may, after consultation with the Authority, determine the financial duties of the Authority, and different determinations may be made for different functions and activities of the Authority.E+W+S

(2)A determination under this paragraph may—

(a)relate to a period beginning before the date on which it is made;

(b)contain supplemental provisions; and

(c)be varied by a subsequent determination.

(3)The Secretary of State shall give the Authority written notice of every determination made under this paragraph and it shall be the duty of the Authority to conduct its finances in accordance with the determinations of which it has been given notice.

(4)The approval of the Treasury shall be required for the making of a determination under this paragraph.

Finances of the AuthorityE+W+S

14(1)The Secretary of State shall, in respect of each accounting year, pay to the Authority such amount as he may determine to be the amount required by the Authority for the carrying out during that year of its functions under this Act.E+W+S

(2)Except so far as the Secretary of State may otherwise direct, sums received by the Authority in the course of carrying out its functions shall be paid by the Authority to the Secretary of State.

(3)Any sums required by the Secretary of State for making a payment under sub-paragraph (1) above shall be paid out of money provided by Parliament; and any sums received by the Secretary of State under sub-paragraph (2) above shall be paid into the Consolidated Fund.

(4)The approval of the Treasury shall be required for the making of a determination, or the giving of any direction, under this paragraph.

(5)In this paragraph and paragraph 15 below “accounting year” means the period beginning with the day on which the Authority is established and ending with the financial year current on that date, and each successive financial year.

AccountsE+W+S

15(1)The Authority—E+W+S

(a)shall keep proper accounts and records in relation to its accounts; and

(b)in respect of each accounting year, shall prepare a statement of accounts in such form, and within such period after the end of that year, as the Secretary of State may, with the approval of the Treasury, direct.

(2)Before such date after the end of every accounting year as the Secretary of State may direct, the Authority shall send to the Secretary of State a copy of the statement of accounts prepared in respect of that accounting year under sub-paragraph (1)(b) above.

(3)On or before 31st August following the end of every accounting year, the Secretary of State shall send a copy of the statement of accounts prepared in respect of that year to the Comptroller and Auditor General.

(4)The Comptroller and Auditor General shall examine, certify and report on every statement of accounts sent to him under sub-paragraph (3) above and shall lay copies of the statement and of his report before each House of Parliament.

Section 12.

SCHEDULE 2E+W+S+N.I. Restructuring schemes

Contents and effect of schemeE+W+S+N.I.

1(1)This paragraph shall have effect as regards the manner in which effect is to be given to—E+W+S+N.I.

(a)the creation in accordance with a restructuring scheme of any interests or rights in or in relation to property; and

(b)the transfer in accordance with such a scheme of any property, rights or liabilities.

(2)Provisions of a restructuring scheme for the creation, by virtue of section 12(1) of this Act or paragraph 2 below, of any interest or right in or in relation to any property shall specify—

(a)the property in question and the interest or right to be created;

(b)the person in whose favour it is to be created; and

(c)the terms and conditions subject to which it is created;

and this Act shall have effect so as, without further assurance, to create the specified interests and rights as from the beginning of the restructuring date or, in the case of interests or rights created by virtue of paragraph 2 below, as from such date as may be appointed by the scheme in relation to the interest or right in question.

(3)Provisions of a restructuring scheme for the transfer of property, rights or liabilities to any person shall—

(a)specify or describe the property, rights and liabilities to be transferred;

(b)allocate the property, rights or liabilities to the person to whom the transfer is to be made; and

(c)appoint the day on which each of the transfers for which the scheme provides is to come into force;

and such a scheme may allocate different property, rights or liabilities to different persons and may appoint different days for the scheme to come into force in relation to different transfers and different persons.

(4)This Act shall have effect, in relation to any provisions of a restructuring scheme for the transfer of any property, rights or liabilities, so as to transfer the property, rights or liabilities, at the beginning of the day appointed for the coming into force of the transfer and without further assurance, from the Corporation or, as the case may be, its wholly-owned subsidiary to the person to whom they are allocated under the scheme; and the provisions of that scheme in relation to that transfer shall have effect from that time accordingly.

(5)The preceding provisions of this paragraph shall have effect subject to so much of any restructuring scheme as provides for—

(a)the creation of any of the interests or rights to be created in accordance with the scheme, or

(b)the transfer of any of the property, rights or liabilities to be transferred in accordance with the scheme,

to be effected by or under any agreement or instrument entered into or executed in pursuance of an obligation imposed by virtue of paragraph 2(1)(g) below.

(6)The same restructuring scheme may contain provision made by virtue of subsection (1) of section 12 of this Act and provision made by virtue of subsection (2) of that section.

(7)Any matter which under this paragraph is to be included in a restructuring scheme, as well as any other matter for which provision may be made by such a scheme, may be included in the scheme wholly or partly by means of—

(a)a description framed by reference to the part of the Corporation’s undertaking which in accordance with the scheme is to be transferred to any person; or

(b)the application of any provision or description contained, in relation to that matter, in any agreement under section 13 of this Act.

(8)In their application to Scotland, sub-paragraphs (2) and (4) above shall have effect, respectively, with the omission of the words “without further assurance” and with the omission of the words “and without further assurance”.

Division of property by schemeE+W+S+N.I.

2(1)For the purpose of making any such division as the Secretary of State considers appropriate of any of the property, rights and liabilities to which the Corporation and its wholly-owned subsidiaries are at any time entitled or subject between any two or more different persons (including, in so far as he thinks fit, any division between the Corporation or any such subsidiary and one or more other persons) a restructuring scheme may contain provision—E+W+S+N.I.

(a)for the creation, in favour of the Corporation or any of its wholly-owned subsidiaries, of an interest or right in or in relation to property transferred in accordance with that scheme to any person;

(b)for the creation, in favour of a person to whom any transfer is made, of an interest or right in or in relation to property so transferred to another;

(c)for giving effect to a transfer to any person by the creation, in favour of that person, of an interest or right in or in relation to property retained by the Corporation or any of its wholly-owned subsidiaries;

(d)for rights and liabilities to be transferred so as to be enforceable by or against more than one transferee or by or against both one or more transferees and the Corporation or any of its wholly-owned subsidiaries;

(e)for rights and liabilities enforceable by or against more than one person in accordance with any provision falling within paragraph (d) above to be enforceable in different or modified respects by or against each or any of them;

(f)for the creation of new rights and liabilities as between different transferees and as between transferees and persons who, in pursuance of the division, continue to be entitled or subject to any property, rights or liabilities; and

(g)without prejudice to paragraph (f) above, for imposing on any transferee, the Corporation or any of its wholly-owned subsidiaries an obligation—

(i)to enter into such written agreements with any other person on whom any corresponding obligation is, could be or has been imposed by virtue of this paragraph (whether in the same or a different scheme), or

(ii)to execute such instruments in favour of any such person,

as may be specified or described in the scheme.

(2)A restructuring scheme may contain such supplemental and incidental provision with respect to the interests, rights and liabilities of third parties in relation to anything to which the scheme relates as the Secretary of State considers to be necessary or expedient for the purposes of any such division as is mentioned in sub-paragraph (1) above, or in connection with anything contained in the scheme by virtue of that sub-paragraph.

(3)The provision that may be contained in a restructuring scheme by virtue of sub-paragraph (2) above shall include provision for interests, rights or liabilities to which any third party is entitled or subject in relation to anything to which the scheme relates to be modified in such respects or in such manner as may be specified in or determined under the scheme.

(4)An obligation imposed on any person by virtue of sub-paragraph (1)(g) above shall be enforceable by the bringing, by any person with or in favour of whom the agreement or instrument is to be entered into or executed, of civil proceedings for an injunction or for interdict or for other appropriate relief.

(5)In this paragraph—

(a)references, in relation to a restructuring scheme, to a transferee include references to any person in whose favour any interest or right is created in accordance with the scheme; and

(b)the reference, in relation to such a scheme, to a third party is a reference to any person who (apart from any provision made by virtue of sub-paragraph (1)(e) or (2) above) is neither a transferee nor a person from whom any transfer is to be made in accordance with the scheme.

(6)Sub-paragraphs (2) and (3) above shall be without prejudice to the generality of paragraph 4(1) below.

Property to which a scheme may relateE+W+S+N.I.

3(1)The property, rights and liabilities that shall be capable of being transferred in accordance with a restructuring scheme shall include—E+W+S+N.I.

(a)property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the Corporation or, as the case may be, its wholly-owned subsidiary;

(b)property acquired at a time after the making of the scheme and before the transfer comes into force, and rights and liabilities which arise or may arise in respect of anything occurring after the making of the scheme;

(c)property, rights and liabilities in relation to anything with respect to which provision has been made by a previous restructuring scheme;

(d)property situated anywhere in the United Kingdom or elsewhere and rights and liabilities under the law of any part of the United Kingdom or of any country or territory outside the United Kingdom; and

(e)rights and liabilities under enactments.

(2)The transfers authorised by sub-paragraph (1)(a) above, and the interests and rights that may be created in accordance with a restructuring scheme, include transfers, interests and rights which are to take effect as if there were—

(a)no such requirement to obtain any person’s consent or concurrence,

(b)no such liability in respect of a contravention of any other requirement, and

(c)no such interference with any interest or right,

as there would be, in the case of any transaction apart from this Act, by reason of provisions having effect (whether under any enactment or agreement or otherwise) in relation to the terms on which the Corporation or any of its wholly-owned subsidiaries is entitled or subject to any property, right or liability.

(3)Where apart from this sub-paragraph any person would have an entitlement, in consequence of anything done or likely to be done by or under this Act or the M101British Coal and British Rail (Transfer Proposals) Act 1993, to terminate, modify, acquire or claim an interest or right which, at the passing of this Act, is vested in the Corporation, or in any of its wholly-owned subsidiaries, or to treat any such interest or right as terminated or modified, then—

(a)for the purposes of the transfer of the interest or right in accordance with a restructuring scheme, that entitlement shall not be enforceable in relation to that interest or right until after its transfer in accordance with such a scheme; and

(b)without prejudice to the preceding provisions of this paragraph or to paragraph 4(2)(b) below, that entitlement shall be enforceable in relation to the interest or right after its transfer only in so far as the scheme contains provision for it to be transferred subject to the provisions conferring that entitlement.

(4)Subject to sub-paragraphs (5) and (6) below, nothing in sub-paragraph (1) or (2) above shall enable—

(a)any agreement or instrument entered into or executed in pursuance of an obligation imposed by virtue of paragraph 2(1)(g) above, or

(b)anything done under any such agreement,

to give effect to any transfer, or to create any interest or right, which could not apart from this paragraph have been made or created by or under that agreement or instrument.

(5)A restructuring scheme may provide for—

(a)the transfers to which effect is to be given by or under any agreement or instrument entered into or executed in accordance with the scheme, or

(b)the interests or rights that are to be created by or under any such agreement or instrument,

to include, to such extent as may be specified in the scheme, any such transfer, interest or right as is mentioned in sub-paragraph (2) above.

(6)A restructuring scheme may provide that sub-paragraph (3) above shall apply in relation to the provisions of any agreement or instrument which is to be entered into or executed in accordance with the scheme, and in relation to any proposal for such an agreement or for the execution of such an instrument, as if the reference in sub-paragraph (3)(b) above to provision contained in the scheme included a reference to provision contained, in accordance with the scheme, in the agreement or instrument.

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Marginal Citations

Supplemental provisions of schemesE+W+S+N.I.

4(1)A restructuring scheme may contain supplemental, incidental, consequential and transitional provision for the purposes of, or in connection with, any transfer of property, rights or liabilities for which the scheme provides or in connection with any other provisions contained in the scheme; and any such provision may include different provision for different cases or different purposes.E+W+S+N.I.

(2)A restructuring scheme may, in relation to transfers in accordance with the scheme, make provision, either generally or for such purposes as may be specified in the scheme—

(a)for the transfers to be regarded as taking place in a specified order;

(b)for the transferee to be treated as the same person in law as the Corporation or, as the case may be, its wholly-owned subsidiary;

(c)for agreements made, transactions effected or other things done by or in relation to the Corporation or any of its wholly-owned subsidiaries to be treated, so far as may be necessary for the purposes of or in connection with the transfers, as made, effected or done by or in relation to the transferee;

(d)for references in any agreement (whether or not in writing) or in any deed, bond, instrument or other document to, or to any member or officer of, the Corporation or any of its wholly-owned subsidiaries to have effect, so far as may be necessary for the purposes of or in connection with any of the transfers, with such modifications as are specified in the scheme;

(e)for proceedings commenced by or against the Corporation or any of its wholly-owned subsidiaries to be continued by or against the transferee;

(f)for any such questions about the effect of the scheme as arise between different transferees, or between any of the transferees on the one hand and the Corporation or any of its wholly-owned subsidiaries or a transferee under another scheme on the other, to be referred to such arbitration as may be specified in or determined under the scheme in question, and for determinations in any such arbitrations to be conclusive;

(g)for a certificate as to the effect of the scheme which is given—

(i)jointly by the Corporation and any one or more persons who are transferees under the scheme, or

(ii)by the Corporation or any such transferee with the concurrence as to the statements contained in the certificate of any other persons,

to be conclusive as between the persons giving, or concurring in the giving of, the certificate.

(3)Where any person is entitled, in consequence of any transfer made in accordance with a restructuring scheme or in pursuance of any provision made under this paragraph, to possession of a document relating in part to the title to, or to the management of, any land or other property in England and Wales—

(a)the scheme may contain provision for treating that person as having given another person an acknowledgment in writing of the right of that other person to the production of the document and to delivery of copies thereof; and

(b)section 64 of the M102Law of Property Act 1925 (production and safe custody of documents) shall have effect accordingly, and on the basis that the acknowledgment did not contain any such expression of contrary intention as is mentioned in that section.

(4)Where any person is entitled, in consequence of any transfer made in accordance with a restructuring scheme or in pursuance of provision made under this paragraph, to possession of a document relating in part to the title to, or to the management of, any land or other property in Scotland transferred in accordance with a restructuring scheme, subsections (1) and (2) of section 16 of the M103Land Registration (Scotland) Act 1979 (omission of certain clauses in deeds) shall have effect in relation to the transfer as if the transfer had been effected by deed and as if from each of those subsections the words “unless specially qualified” were omitted.

(5)Where a restructuring scheme makes provision in relation to any agreement contained in a licence granted under section 36 of the 1946 Act (licensing by Corporation of certain coal-mining operations and of coal exploration), that provision may include such modifications of that agreement, together with such modifications for the purposes of section 25(3) of this Act, as the Secretary of State considers appropriate in consequence of the provisions of Parts II and III of this Act.

(6)In this paragraph—

(a)references to a transfer include references to the creation in any person’s favour of any interest or right, and references to a transferee shall be construed accordingly; and

(b)references to a person who is entitled, in consequence of any transfer, to possession of a document, include references to the Corporation or any of its wholly-owned subsidiaries in a case where the Corporation or that subsidiary is entitled to retain possession of any document following any transfer.

(7)Sub-paragraphs (2) to (5) above shall be without prejudice to the generality of sub-paragraph (1) above.

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Marginal Citations

Duties in relation to foreign property etc.E+W+S+N.I.

5(1)A restructuring scheme may provide for the imposition of duties on—E+W+S+N.I.

(a)the Corporation or any of its wholly-owned subsidiaries, and

(b)any person to whom anything is transferred in accordance with the scheme,

to take all such steps as may be requisite to secure that the vesting in that person, in accordance with the scheme, of any foreign property, right or liability is effective under the relevant foreign law.

(2)The provisions of a restructuring scheme may require the Corporation or any of its wholly-owned subsidiaries, in performing any duty imposed on it by virtue of sub-paragraph (1) above, to comply with any directions of a person to whom anything is transferred in accordance with the scheme.

(3)A restructuring scheme may provide that, until the vesting of any foreign property, right or liability of the Corporation or any of its wholly-owned subsidiaries in any person is effective under the relevant foreign law, it shall be the duty of the Corporation or that subsidiary to hold that property or right for the benefit of that person or, as the case may be, to discharge that liability on behalf of that person.

(4)Nothing in any provision included by virtue of this paragraph in a restructuring scheme shall be taken as prejudicing the effect under the law of any part of the United Kingdom of the vesting in any person in accordance with the scheme of any foreign property, right or liability.

(5)The Corporation and its wholly-owned subsidiaries shall each have all such powers as may be requisite for the performance of any duty imposed on it by virtue of this paragraph; but such a scheme may require a person to whom a transfer is made in accordance with the scheme to act (so far as possible) on behalf of the Corporation or its subsidiary for the purposes of, or in connection with, the performance of any such duty.

(6)A restructuring scheme may provide that where—

(a)any foreign property, rights or liabilities are acquired or incurred by the Corporation or any of its wholly-owned subsidiaries in respect of any other property, rights or liabilities, and

(b)by virtue of this paragraph the Corporation or its wholly-owned subsidiary holds the other property or rights for the benefit of another person or discharges the other liability on behalf of another person,

the property, rights or liabilities acquired or incurred are immediately to become property, rights or liabilities of that other person; and the preceding provisions of this paragraph shall have effect accordingly in relation to the property, rights or liabilities acquired or incurred.

(7)References in this paragraph to any foreign property, right or liability are references to any property, right or liability as respects which any issue arising in any proceedings would have to be determined (in accordance with any rules of private international law) by reference to the law of a country or territory outside the United Kingdom.

(8)A restructuring scheme may provide—

(a)for any obligation imposed by virtue of this paragraph to be enforceable as if contained in a contract between the person to whom the transfer in question is made and the Corporation or, as the case may be, its wholly-owned subsidiary; and

(b)for expenses incurred by the Corporation or any of its wholly-owned subsidiaries in consequence of any provision made by virtue of this paragraph to be met by that person.

Modification of effect of scheme by agreementE+W+S+N.I.

6(1)This paragraph applies where any person to whom anything has been transferred in accordance with a restructuring scheme agrees in writing with another person to or from whom anything has been transferred in accordance with that or any other restructuring scheme that, for the purpose of modifying the effect of the scheme or, as the case may be, of modifying either or both of the schemes—E+W+S+N.I.

(a)any or all of the property, rights or liabilities transferred in accordance with the scheme or either of them, and

(b)any or all of the property, rights or liabilities acquired or incurred since the transfer in respect of the transferred property, rights or liabilities,

should be transferred from one to the other as from a date appointed by the agreement.

(2)If—

(a)the agreement is entered into within the period of twelve months after the time when a transfer in accordance with a restructuring scheme of property, rights or liabilities to any of its parties takes effect, and

(b)the Secretary of State has given his approval to the transfer for which the agreement provides and to its terms and conditions,

then the transfer for which the agreement provides shall take effect on the date appointed by the agreement in the like manner as a transfer for which provision is made by a restructuring scheme.

(3)Subject to the approval of the Secretary of State and to sub-paragraphs (4) to (6) below, the provisions that may be contained in a modification agreement shall include any such provision in relation to any transfer for which it provides as may be contained, in relation to any transfer for which a restructuring scheme provides, in that scheme.

(4)Nothing in any modification agreement shall provide for any interests or rights to be created, as opposed to transferred, except as between persons who are parties to the agreement.

(5)A modification agreement shall have effect subject to the provisions of any enactment or subordinate legislation which makes provision, in relation to any transactions with the same effect, for the registration of anything in a statutory register.

(6)The consent of the Treasury shall be required for the inclusion in a modification agreement of any provision having the effect of modifying any provision which is contained in a restructuring scheme for any of the purposes of Schedule 4 to this Act.

(7)In this paragraph references to a transfer in accordance with a restructuring scheme include references to the creation of any interest, right or liability in accordance with such a scheme.

(8)In this paragraph and the following provisions of this Schedule “modification agreement” means any agreement providing for a transfer which is to take effect in accordance with sub-paragraph (2) above.

The Transfer of Undertakings (Protection of Employment) Regulations 1981E+W+S+N.I.

7(1)The 1981 regulations shall apply to any transfer of any undertaking or part of an undertaking in accordance with a restructuring scheme or modification agreement as if (in so far as that would not otherwise be the case) the references in those regulations to the transferor were references to the person in whom that undertaking or part was vested immediately before the coming into force of the transfer.E+W+S+N.I.

(2)Nothing in the preceding provision of this Schedule shall authorise the making of any provision modifying the operation of the 1981 regulations in relation to any such transfer as is mentioned in sub-paragraph (1) above.

(3)It shall be the duty of the Secretary of State, before making a restructuring scheme or approving a modification agreement, to give such notice of his proposals to such persons as he considers appropriate for enabling any provisions of the 1981 regulations applicable to any transfer in accordance with the scheme or agreement to be complied with by the person who for the purposes of the regulations is the transferor in relation to that transfer.

(4)In this paragraph—

  • the 1981 regulations” means the M104Transfer of Undertakings (Protection of Employment) Regulations 1981; and

  • undertaking” has the same meaning as in the 1981 regulations.

(5)This paragraph shall be without prejudice to the provisions of Schedule 5 to this Act.

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Marginal Citations

CompensationE+W+S+N.I.

8(1)Where, in consequence of any provisions included in a restructuring scheme for the purposes of any such division as is mentioned in paragraph 2(1) above, the interests, rights or liabilities of a third party are modified as mentioned in sub-paragraph (2) below, the third party shall be entitled to such compensation as may be just in respect of—E+W+S+N.I.

(a)any diminution attributable to that modification in the value of any of his interests or rights;or

(b)any increase attributable to that modification in the burden of his liabilities.

(2)The modifications mentioned in sub-paragraph (1) above are modifications by virtue of which—

(a)an interest of the third party in any property is transformed into, or replaced by—

(i)an interest in only part of that property; or

(ii)separate interests in different parts of that property;

(b)a right of the third party against the Corporation or any of its wholly-owned subsidiaries is transformed into, or replaced by, two or more rights which do not include a right which, on its own, is equivalent (disregarding the person against whom it is enforceable) to the right against the Corporation or that subsidiary;

(c)a liability of the third party to the Corporation or any such subsidiary is transformed into, or replaced by, two or more separate liabilities at least one of which is a liability enforceable by a person other than the Corporation or that subsidiary; or

(d)any interests, rights or liabilities of the third party are altered in such other manner as does not either—

(i)relate to the identity of the person or persons against whom the third party’s interests or rights are enforceable or of the person or persons by whom the liabilities to which he is or may become subject are enforceable; or

(ii)effect a modification in relation to which sub-paragraph (3) below would apply but for paragraph (c) of that sub-paragraph.

(3)Where—

(a)a third party would, apart from any provisions of a restructuring scheme or paragraph 3(3) above, have become entitled to, or to exercise, any interest or right arising or exercisable—

(i)in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities, or

(ii)otherwise in respect of anything done by or under this Act or the M105British Coal and British Rail (Transfer Proposals) Act 1993,

(b)the provisions of that scheme or of paragraph 3(3) above have the effect of preventing that person’s entitlement to, or to exercise, that interest or right from arising on any occasion in respect of anything mentioned in paragraph (a)(i) or (ii) above, and

(c)provision is not made by a restructuring scheme for securing that an entitlement to, or to exercise, that interest or right or an equivalent interest or right, is preserved or created so as to arise in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party shall be entitled to such compensation as may be just in respect of the extinguishment of the interest or right.

(4)A liability to pay compensation under this paragraph shall fall on the persons not themselves being third parties who, as the case may be—

(a)have interests in the whole or any part of the property affected by the modification in question;

(b)are subject to the rights of the person to be compensated which are affected by that modification;

(c)are entitled to enforce the liabilities of the person to be compensated which are affected by that modification; or

(d)benefit from the extinguishment of the entitlement mentioned in sub-paragraph (3) above;

and that liability shall be apportioned between those persons in such manner as may be appropriate having regard to the extent of their respective interests, rights or liabilities or the extent of the benefit they respectively obtain from the extinguishment.

(5)Where any liability falls by virtue of sub-paragraph (4) above on the Corporation or any of its wholly-owned subsidiaries, that sub-paragraph shall have effect subject to so much of any restructuring scheme (including the one which gives rise to the liability) as makes provision for the transfer of that liability to any other person.

(6)Any dispute as to whether, or as to the person by whom, any compensation is to be paid under this paragraph, and any dispute as to the amount of any compensation to be paid by any person, shall, according to whether the claimant requires the matter to be determined in England and Wales or in Scotland, be referred to and determined by—

(a)an arbitrator appointed by the Lord Chancellor; or

(b)an arbiter appointed by the Lord President of the Court of Session.

(7)This paragraph shall have effect in relation to the provisions of any agreement or instrument entered into or executed in pursuance of an obligation imposed by virtue of paragraph 2(1)(g) above, and to any modification agreement, as it has effect in relation to the provisions of a restructuring scheme.

(8)In this paragraph “third party”, in relation to provisions capable of giving rise to a right to compensation under this paragraph, means any person other than—

(a)the Corporation or any of its wholly-owned subsidiaries;

(b)the Authority or the Secretary of State;

(c)a company which is wholly owned by the Crown at the time in relation to which those provisions have effect; or

(d)where the provisions in question are the provisions of a restructuring scheme, any person whose consent to those provisions has been given for the purposes of section 12(4) of this Act or who has agreed to those provisions by virtue of being a party to an agreement under section 13 of this Act or a modification agreement.

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Marginal Citations

Notice to persons affected by schemeE+W+S+N.I.

9(1)It shall be the duty of the Secretary of State, where it appears to him in the case of any restructuring scheme or modification agreement that there are persons whose property, rights or liabilities are affected in a manner that may give rise to an entitlement to compensation under paragraph 8 above, to give notice under this paragraph to every such person.E+W+S+N.I.

(2)A notice to be given by the Secretary of State under this paragraph shall be given as soon as reasonably practicable after he makes the scheme or, as the case may be, gives his approval in relation to the agreement.

(3)A notice under this paragraph shall set out the general effect of the scheme or, as the case may be, of the agreement and shall describe the respects in which it appears to the Secretary of State that the property, rights or liabilities of the person to whom it is given are affected.

(4)For the purposes of section 63(3) of this Act, so far as it relates to the service of a notice under this paragraph, any address which—

(a)has been specified to the Corporation or any of its wholly-owned subsidiaries, and

(b)is notified to the Secretary of State in pursuance of the Corporation’s duty under section 14 of this Act,

shall be deemed to have been specified to the Secretary of State.

(5)Where it is not reasonably practicable for the notice under this section to any person to be given to that person in accordance with section 63 of this Act, the Secretary of State shall, instead, take such steps for publishing the contents of the notice as he may consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of that person.

Section 15.

SCHEDULE 3E+W+S Financial structure of successor companies

Meaning of “relevant successor company”E+W+S

1In this Schedule “relevant successor company” means any successor company which is limited by shares.E+W+S

Initial Government holding in companiesE+W+S

2(1)As a consequence of the vesting in a relevant successor company, at a time when it is wholly owned by the Crown and in accordance with any restructuring scheme, of any property, rights and liabilities, that company shall issue such securities of the company as the Secretary of State may from time to time direct—E+W+S

(a)to the Treasury or the Secretary of State; or

(b)to any person entitled to require the issue of the securities following their initial allotment, in accordance with directions of the Secretary of State, to the Treasury or the Secretary of State.

(2)The Secretary of State shall not give a direction under sub-paragraph (1) above at a time when the relevant successor company in question has ceased to be wholly owned by the Crown.

(3)Securities to be issued in pursuance of this paragraph shall be issued at such time or times, and (subject to sub-paragraph (4) below) on such terms, as the Secretary of State may direct.

(4)Any shares of a relevant successor company issued in pursuance of this paragraph—

(a)shall be of such nominal value as the Secretary of State may direct; and

(b)shall be issued as fully paid and treated for the purposes of the M106Companies Act 1985 as if they had been paid up by virtue of the payment to the company of their nominal value in cash.

(5)The Secretary of State may not exercise any power conferred on him by this paragraph, or dispose of any securities issued or of any rights to securities initially allotted to him in pursuance of this paragraph, without the consent of the Treasury.

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Marginal Citations

Government investment in companiesE+W+S

3(1)Subject to section 16 of this Act, the Treasury or, with the consent of the Treasury, the Secretary of State may at any time acquire—E+W+S

(a)securities of a relevant successor company; or

(b)rights to subscribe for any such securities.

(2)The Secretary of State shall not dispose of any securities or rights acquired by him by virtue of this paragraph without the consent of the Treasury.

(3)Any expenses incurred by the Treasury or the Secretary of State in consequence of the provisions of this paragraph shall be paid out of money provided by Parliament.

Exercise of functions through nomineesE+W+S

4(1)The Treasury or, with the consent of the Treasury, the Secretary of State may, for the purposes of paragraphs 2 and 3 above, appoint any person to act as the nominee, or one of the nominees, of the Treasury or the Secretary of State; but—E+W+S

(a)the issue or allotment in pursuance of paragraph 2 above of securities of a relevant successor company to any nominee of the Treasury or the Secretary of State appointed for the purposes of that paragraph,

(b)the issue in pursuance of that paragraph of any such securities to any person entitled to be issued with the securities following their initial allotment to any such nominee, and

(c)the acquisition under paragraph 3 above by any nominee of the Treasury or the Secretary of State appointed for the purposes of that paragraph 3 of any securities or rights,

shall be in accordance with such directions as may be given from time to time by the Treasury or, with the consent of the Treasury, by the Secretary of State.

(2)Any person holding any securities or rights as a nominee of the Treasury or the Secretary of State by virtue of this paragraph shall hold and deal with them (or any of them) on such terms and in such manner as the Treasury or, with the consent of the Treasury, the Secretary of State may direct.

Payment of dividends etc. into Consolidated FundE+W+S

5Any dividends or other sums received by the Treasury or the Secretary of State in right of, or on the disposal of, any securities or rights acquired by virtue of paragraph 2 or 3 above shall be paid into the Consolidated Fund.E+W+S

Distributable reserves of companiesE+W+S

6(1)Where statutory accounts of a relevant successor company prepared as at any time would show the company as having net assets in excess of the aggregate of—E+W+S

(a)its called-up share capital, and

(b)the amount, apart from any property, rights and liabilities to which the company has become entitled or subject in accordance with any restructuring scheme, of its undistributable reserves,

then, for the purposes of section 263 of the M107Companies Act 1985 (profits available for distribution) and of the preparation as at that time of any statutory accounts of the company, that excess shall be treated, except so far as the Secretary of State may otherwise direct, as representing an excess of the company’s accumulated realised profits over its accumulated realised losses.

(2)For the purposes of section 264 of the M108Companies Act 1985 (restriction on distribution of assets) so much of any excess of a company’s net assets as falls, in accordance with a direction under sub-paragraph (1) above, to be treated otherwise than as representing an excess of the company’s accumulated realised profits over its accumulated realised losses shall be treated (subject to any modification of that direction by a subsequent direction under this paragraph) as comprised in the company’s undistributable reserves.

(3)A direction under this paragraph may provide, in relation to any amount to which it applies, that, on the realisation (whether before or after the company in question ceases to be wholly owned by the Crown) of such profits and losses as may be specified or described in the direction, so much of that amount as may be determined in accordance with the direction is to cease to be treated as mentioned in sub-paragraph (2) above and is to fall to be treated as comprised in the company’s accumulated realised profits.

(4)The Secretary of State shall not give a direction under this paragraph in relation to a relevant successor company at any time after the company has ceased to be wholly owned by the Crown.

(5)In exercising his power to give a direction under this paragraph, the Secretary of State shall have regard, in particular, to the provisions of Schedule 4 to this Act and to any provision contained in any restructuring scheme by virtue of any provision of that Schedule.

(6)The consent of the Treasury shall be required for the giving of a direction under this paragraph.

(7)In this paragraph—

  • called-up share capital” has the same meaning as in the M109Companies Act 1985;

  • net assets” has the meaning given by subsection (2) of section 264 of that Act; and

  • undistributable reserves” has the meaning given by subsection (3) of that section;

and references in this paragraph, in relation to a company, to statutory accounts are references to accounts of that company prepared in respect of any period in accordance with the requirements of that Act, or with those requirements applied with such modifications as are necessary where that period is not an accounting reference period.

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Marginal Citations

Temporary restrictions on borrowing of companiesE+W+S

7(1)If articles of association of a relevant successor company confer on the Secretary of State powers exercisable with the consent of the Treasury for, or in connection with, restricting the sums of money which may be borrowed or raised during any period by the group to which that company belongs, those powers shall be exercisable in the national interest notwithstanding any rule of law and the provisions of any enactment.E+W+S

(2)For the purposes of this paragraph an alteration of the articles of association of a relevant successor company shall be disregarded if the alteration—

(a)has the effect of conferring or extending any such power as is mentioned in sub-paragraph (1) above; and

(b)is made at a time when that company has ceased to be wholly owned by the Crown.

(3)In this paragraph “group”, in relation to a company, means that company and all of its subsidiaries taken together.

Government lending to the companiesE+W+S

8(1)Subject to the following provisions of this Schedule, the Secretary of State may, with the approval of the Treasury, make loans of such amounts as he thinks fit to a relevant successor company.E+W+S

(2)The Secretary of State shall not make a loan to a company under this paragraph except at a time when it is wholly owned by the Crown.

(3)Any loans which the Secretary of State makes under this paragraph shall be repaid to him at such times and by such methods, and interest thereon shall be paid to him at such rates and at such times, as he may, with the approval of the Treasury, from time to time direct.

(4)The Treasury may issue out of the National Loans Fund to the Secretary of State such sums as are required by him for making loans under this paragraph.

(5)Any sums received under sub-paragraph (3) above by the Secretary of State shall be paid into the National Loans Fund.

(6)It shall be the duty of the Secretary of State as respects each financial year—

(a)to prepare, in such form as the Treasury may direct, an account of sums issued to him in pursuance of sub-paragraph (4) above and of sums received by him under sub-paragraph (3) above and of the disposal by him of the sums so issued or received; and

(b)to send the account to the Comptroller and Auditor General not later than the end of the month of August in the following financial year;

and the Comptroller and Auditor General shall examine, certify and report on the account and shall lay copies of it, and of his report, before each House of Parliament.

Treasury guarantees for loans made to companiesE+W+S

9(1)Subject to the following provisions of this Schedule, the Treasury may guarantee, in such manner and on such terms as they may think fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sums which are borrowed from a person other than the Secretary of State by any relevant successor company.E+W+S

(2)The Treasury shall not give a guarantee under this paragraph except at a time when the company in question is wholly owned by the Crown.

(3)Immediately after a guarantee is given under this paragraph, the Treasury shall lay a statement of the guarantee before each House of Parliament; and immediately after any sum is issued for fulfilling a guarantee so given, the Treasury shall so lay a statement relating to that sum.

(4)Any sums required by the Treasury for fulfilling a guarantee under this paragraph shall be charged on and issued out of the Consolidated Fund.

(5)If any sums are issued in fulfilment of a guarantee given under this paragraph, the company whose obligations are so fulfilled shall make to the Treasury, at such times and in such manner as the Treasury may from time to time direct—

(a)payments of such amounts as the Treasury may so direct in or towards repayment of the sums so issued; and

(b)payments of interest on what is outstanding for the time being in respect of sums so issued at such rate as the Treasury may so direct.

(6)Any sums received under sub-paragraph (5) above by the Treasury shall be paid into the Consolidated Fund.

Limit on Government financial assistance for companiesE+W+S

10The aggregate of—E+W+S

(a)any amounts outstanding by way of principal in respect of loans made by the Secretary of State under paragraph 8 above, and

(b)sums issued under paragraph 9 above in fulfilment of guarantees given under that paragraph,

shall not exceed £3,000 million.

Section 21.

SCHEDULE 4E+W+S+N.I. Taxation Provisions

Part IE+W+S+N.I. Corporation Tax

Interpretation of Part IE+W+S+N.I.

1(1)Subject to paragraph 24 below, in this Part of this Schedule “a relevant transfer” means any transfer in accordance with a restructuring scheme to a public-sector body of any property, rights or liabilities.E+W+S+N.I.

(2)Subject to paragraph 24 below, in this Part of this Schedule—

  • the 1988 Act” means the M110Income and Corporation Taxes Act 1988;

  • [F14the Capital Allowances Act” includes, where the context admits, enactments which under the 1988 Act are to be treated as contained in the Capital Allowances Act,]

  • fixture” has the same meaning as in [F15Chapter 14 of Part 2 of the Capital Allowances Act];

  • predecessor”, in relation to any relevant transfer, means the person from whom the property, rights or liabilities in question are transferred;

  • public-sector body” means the Treasury or any Minister of the Crown, the Authority, a local authority, any company which is wholly owned by the Crown or any body which is not a company but is established by or under any enactment for the purpose of carrying out functions conferred on it by any enactment or subordinate legislation; and

  • transferee”, in relation to any relevant transfer, means the person to whom the property, rights or liabilities are transferred;

and this Part of this Schedule shall be construed as one with the 1988 Act.

(3)Subject to paragraph 7(8) below, in determining in relation to any transfer whether any such provision of this Schedule applies as is a provision applying if, by virtue of the coming into force of any relevant transfer, the predecessor is to be treated as having ceased to carry on any trade or the transferee is to be treated as having begun to carry one on, where—

(a)the predecessor continues to carry on any trade or part of a trade after the coming into force of the transfer,

(b)the predecessor ceases, by virtue of any provisions of a restructuring scheme coming into force at the same time as the transfer, to carry on any trade or part of a trade which is not transferred to the transferee, or

(c)the transferee was carrying on any trade before the coming into force of the transfer,

the trade or part of a trade which is continued or ceases to be carried on by the predecessor or, as the case may be, was being carried on shall for the purposes of that provision be treated in relation to any trade or part of a trade which is transferred by virtue of the transfer as a separate trade and, accordingly, shall be disregarded.

(4)References in this Schedule to any provision of the 1992 Act shall have effect, in relation to times in any chargeable period beginning before 6th April 1992, as references to the corresponding enactment having effect in relation to that time.

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Amendments (Textual)

F14Definition of “the Capital Allowances Act” in Sch. 4 para. 1(2) inserted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(1)(a)

F15Words in Sch. 4 para. 1(2) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(1)(b)

Marginal Citations

Chargeable gains: generalE+W+S+N.I.

2(1)For the purposes of the 1992 Act, where there is a relevant transfer, the transfer of the property, rights and liabilities to which it relates shall (subject to the following provisions of this Part of this Schedule) be deemed, in relation to the transferee as well as the predecessor, to be for a consideration such that no gain or loss accrues to the predecessor.E+W+S+N.I.

(2)Section 28 of the 1992 Act (time of disposal or acquisition in pursuance of contract) shall have effect in relation to any disposal or acquisition in pursuance of an obligation imposed by virtue of paragraph 2(1)(g) of Schedule 2 to this Act as it would apply if the obligation were contained in a contract made at the time when the scheme containing the obligation comes into force.

(3)Paragraph (d) of section 35(3) of the 1992 Act (list of provisions for transfers treated as made without gain or loss) shall have effect with the insertion, at the end of the paragraph, of the following sub-paragraph—

(xi)paragraph 2(1) of Schedule 4 to the Coal Industry Act 1994;.

Chargeable gains: compensation and insurance moneyE+W+S+N.I.

3(1)Subsections (4) and (5) of section 23 of the 1992 Act (adjustments where compensation or insurance money used for purchase of replacement asset) shall have effect in accordance with sub-paragraph (2) below where—E+W+S+N.I.

(a)there is a relevant transfer such that any capital sum which has been or (but for the transfer) would have been received by the predecessor by way of compensation for the loss or destruction of any asset, or under a policy of insurance of the risk of the loss or destruction of any asset, becomes available to the transferee; and

(b)the transferee acquires any asset in circumstances where, if the predecessor had acquired it, the predecessor would be treated for the purposes of that section as having acquired it by the application of the whole or any part of that sum in replacement for the asset lost or destroyed.

(2)In a case falling within sub-paragraph (1) above, subsection (4) or, as the case may require, subsection (5) of section 23 of the 1992 Act shall have effect as if the transferee and the predecessor were the same person except that—

(a)it shall, subject to paragraph (b) below, be the transferee who shall be entitled as owner to make a claim for that subsection to be applied in relation to the transactions;

(b)any adjustment falling to be made under paragraph (a) of subsection (4) or, as the case may be, subsection (5) of that section shall have effect for the purposes only of the taxation of whichever of the predecessor and the transferee received the capital sum; and

(c)any adjustment falling, on a claim by the transferee, to be made under paragraph (b) of subsection (4) or, as the case may be, subsection (5) of that section shall have effect for the purposes only of the taxation of the transferee.

(3)Sub-paragraph (2) above shall have effect for the purposes of any such adjustment as is mentioned in paragraph (c) of that sub-paragraph so as to require any residual or scrap value received by the predecessor to be treated as received by the transferee.

Chargeable gains: section 30 of the 1992 ActE+W+S+N.I.

4Section 30 of the 1992 Act (tax-free benefits) shall not apply in any case where—E+W+S+N.I.

(a)a reduction in the value of any asset, or

(b)the conferring of any tax-free benefit,

results from any provision made by or under so much of any restructuring scheme as relates to a relevant transfer.

Chargeable gains: section 41 of the 1992 ActE+W+S+N.I.

5Subject to paragraph 21 below, section 174(1) of the 1992 Act (which applies section 41 of that Act to cases where assets have been acquired without gain or loss) shall have effect, without prejudice to paragraph 2 above, where there has been a relevant transfer as if the property to which the transfer relates had been transferred to the transferee, and acquired by him, in relevant circumstances (within the meaning of that section).E+W+S+N.I.

Chargeable gains: optionsE+W+S+N.I.

6(1)Where in the case of any relevant transfer the transferee becomes entitled, in consequence of the transfer, to any option granted to the predecessor, section 144 of the 1992 Act (options), so far as it requires an option to be treated as part of a larger transaction, shall have effect as if the option had originally been granted to the transferee for the consideration for which it was granted to the predecessor.E+W+S+N.I.

(2)Where in the case of any relevant transfer the transferee is bound, in consequence of the transfer, by an option granted by the predecessor, that section, so far as it requires any option to be treated as part of a larger transaction, shall have effect as if the option had originally been granted by the transferee for the consideration for which it was granted by the predecessor and, if the case so requires, as if the transferee had entered into that transaction.

(3)Sub-paragraph (2) above shall not apply in the case of any option in so far as any disposal made by the transferee by virtue of any exercise of that option before the time when the relevant transfer comes into force is one which falls, under section 28 of the 1992 Act (time of disposal etc.), to be treated as made before that time; and, accordingly, any disposal by the transferee which falls to be treated as so made and also, as mentioned in that sub-paragraph, to be treated as part of a larger transaction, shall be assumed for the purposes of the 1992 Act to be a disposal by the predecessor.

(4)The preceding provisions of this paragraph shall not affect the rights and liabilities of the predecessor, or confer any rights or liabilities on the transferee, in respect of any adjustment falling to be made in consequence of the option in question having been differently treated, for the purposes of the taxation of the predecessor, in relation to a time before the conditions for its being treated as part of a larger transaction were satisfied.

Chargeable gains: roll-over reliefE+W+S+N.I.

7(1)Where, apart from this sub-paragraph—E+W+S+N.I.

(a)the predecessor would be treated for the purposes of section 152 of the 1992 Act as having ceased, by virtue of the coming into force of any relevant transfer, to carry on any trade, and

(b)the transferee would be treated as having begun, on the coming into force of that transfer, to carry it on,

that section shall have effect as if any assets to which the transfer relates which, for the purposes of that section and in accordance with sub-paragraph (8) below, would fall immediately before the transfer comes into force to be treated in relation to the period of ownership as assets that have been used to any extent by the predecessor for the purposes of the trade were, as at the time immediately after the coming into force of the transfer, to be treated in relation to the period of ownership as assets that the transferee has used to the same extent for the purposes of that trade.

(2)Where any assets vest by virtue of a relevant transfer in the transferee—

(a)the predecessor shall not be entitled, at any time after the coming into force of the transfer, to make any claim under section 152 or 153 of the 1992 Act in respect of the acquisition by the predecessor of those assets; and

(b)subject to sub-paragraph (3) below, the transferee shall not be treated for the purposes of either of those sections or section 154 of that Act as having applied the whole or any part of the consideration for any disposal in acquiring those assets by means of that transfer.

(3)Where, in the case of any relevant transfer—

(a)the predecessor acquired any assets or any interest in any assets before the coming into force of the transfer,

(b)the assets or interest vest or vests in the transferee by virtue of the transfer,

(c)the acquisition is not one in respect of which the predecessor has made a claim under section 152 or 153 of the 1992 Act before the coming into force of the transfer,

(d)after the coming into force of the transfer the transferee disposes of, or of an interest in, any other assets, and

(e)the acquisition was such that, if the predecessor had been able to make and had made the disposal and obtained the consideration for it, the predecessor would have been regarded for the purposes of section 152 or 153 of that Act as having applied the consideration, or any part of it, in making the acquisition,

then, on a claim by the transferee, section 152 and, so far as necessary, section 153 of that Act shall have effect for the purposes of paragraph 2 above in relation to the acquisition as they would have effect if the acquisition had been made by the transferee and the assumptions specified in sub-paragraph (4) below applied.

(4)Those assumptions are—

(a)that the acquisition was made by the application by the transferee of the consideration or, as the case may be, the part of it mentioned in sub-paragraph (3)(e) above;

(b)that any period of ownership by the predecessor of any assets was a period of ownership of those assets by the transferee;

(c)that any use by the predecessor of any assets for the purposes of any trade which was, at the time, being carried on by the predecessor had been use by the transferee for the purposes of that trade; and

(d)that any trade for the purposes of which the transferee is assumed by virtue of paragraph (c) above to have used any asset was a trade which was being carried on by the transferee at the time.

(5)Where—

(a)a held-over gain would, but for the provisions of section 154 of the 1992 Act, have been carried forward to a depreciating asset, and

(b)that asset is transferred by a relevant transfer and immediately after the coming into force of that transfer is used by the transferee for the purposes of a trade carried on by him,

that section shall have effect as if the gain had accrued to, and the claim for it to be held over had been made by, the transferee and, accordingly, as if the transferee had acquired the depreciating asset at the time when the predecessor acquired it and as if the assumptions specified in sub-paragraph (4)(c) and (d) above applied.

(6)Expressions used in sub-paragraph (5) above which are also used in section 154 of the 1992 Act have the same meanings in that sub-paragraph as in that section.

(7)Section 158 of the 1992 Act (extension of references to trade) shall have effect, subject to sub-paragraph (8) below, in relation to this paragraph as it has effect in relation to sections 152 to 157 of that Act.

(8)For the purposes of this paragraph, any assets so far as used by the predecessor—

(a)for the purposes of any part of a trade, or

(b)for the purposes of the whole or any part of any trade which is treated by virtue of subsection (8) of section 152 of the 1992 Act as forming a single trade with any one or more other trades,

shall be treated as used for the purposes of every part of the trade carried on by the predecessor or, as the case may be, for the purposes of every part of every trade so carried on.

Chargeable gains: group transactionsE+W+S+N.I.

8(1)For the purposes of section 179 of the 1992 Act (company ceasing to be a member of a group) where by virtue of any relevant transfer any company—E+W+S+N.I.

(a)ceases to be a member of the same group of companies as the predecessor, but

(b)becomes a member of the same group of companies as the transferee,

that company shall not under that section be treated, in consequence of having so ceased, as at any time having sold, and immediately reacquired, any asset acquired from a company which is or has been a member of the former group.

(2)Subject to sub-paragraph (3) below, where sub-paragraph (1) above applies, or but for subsection (2) of section 179 of the 1992 Act would apply, as respects any acquisition of any asset and the company that acquired the asset ceases to be a member of the same group of companies as the transferee, that section shall have effect as if—

(a)that asset had been acquired from the transferee; and

(b)that company had been a member of the same group of companies as the transferee when it was so acquired;

and where, for the purposes of that subsection, this sub-paragraph applies as respects more than one of a number of successive acquisitions of any asset, the fact that each is to be treated as an acquisition from the same person shall be disregarded.

(3)Where—

(a)any asset has been acquired by any company (“the leaving company”) from another company,

(b)both of those companies cease at the same time to be members of the same group of companies as the transferee, and

(c)those companies are associated companies both immediately before and immediately after that time,

sub-paragraph (2) above shall not apply as respects the acquisition of the asset by the leaving company.

(4)Expressions used in this paragraph and in section 179 of the 1992 Act shall have the same meanings in this paragraph as in that section.

Chargeable gains: disposal of debtsE+W+S+N.I.

9(1)Where in the case of any relevant transfer—E+W+S+N.I.

(a)any debt owed to the predecessor is transferred by virtue of the transfer to the transferee, and

(b)the predecessor would, apart from this sub-paragraph, be the original creditor in relation to that debt for the purposes of section 251 of the 1992 Act (disposal of debts),

that Act shall have effect as if the transferee and not the predecessor were the original creditor for those purposes.

(2)Subject to the following provisions of this paragraph, where in the case of any relevant transfer—

(a)there is transferred by virtue of the transfer to the transferee either a debt owed to the predecessor or the rights and liabilities of the predecessor under any guarantee, and

(b)the transferred debt is, or any debt arising by virtue of those rights and liabilities would be, either—

(i)a right to the repayment of any amount outstanding as principal on a loan which is a qualifying loan for the purposes of either of sections 253 and 254 of the 1992 Act, or

(ii)a right to recover any amount paid under a guarantee for the repayment of such a loan or of any loan which would be such a loan but for section 253(1)(c) of that Act,

those sections shall have effect as if the loan or, as the case may be, the guarantee and any payment by the predecessor under the guarantee had been made or given by the transferee and, accordingly, as if there had been no assignment of the right to recover the principal of the loan or of any right to recover an amount paid under the guarantee.

(3)Where sub-paragraph (2) above applies, sections 253 and 254 of the 1992 Act and this paragraph shall have effect as if the companies which, in relation to times before the relevant transfer comes into force, are to be treated as having been members of the same group of companies as the transferee included the predecessor and any company which at any such time was a member of the same group of companies as the predecessor.

(4)Where—

(a)any right to the recovery of any amount is transferred by virtue of any relevant transfer,

(b)any amount outstanding in respect of that right is recovered at any time by the transferee or by a company in the same group of companies as the transferee, and

(c)that amount is such that, if that transfer had not come into force and the amount in question had been recovered by the predecessor or a company in the same group as the predecessor, a chargeable gain would be treated as having accrued to the predecessor or that company under section 253(5) to (8) or 254(9) or (10) of the 1992 Act,

then a chargeable gain of the same amount shall be treated, instead, as having accrued at that time to the transferee, or as the case may be, the company in the same group as the transferee.

(5)Sub-paragraph (2) above shall not, in relation to any relevant transfer—

(a)affect the allowable losses that have been or are to be treated, in pursuance of any claim made under section 253(3) or (4) or 254(2) of the 1992 Act before the coming into force of the transfer, as having accrued to the predecessor in respect of any amount; or

(b)entitle the transferee to make any claim under section 253(3) or (4) or 254(2) of that Act for the purpose of requiring any allowable loss to be treated as having accrued to the transferee in respect of any amount in respect of which an allowable loss to which paragraph (a) above applies has been or is to be treated as having accrued;

and a relevant transfer shall be disregarded for the purposes of section 253(9) of the 1992 Act.

(6)For the purposes of subsection (10) of section 253 of the 1992 Act, where there is a relevant transfer, any amount taken into account as mentioned in that subsection in the case of the predecessor shall be deemed also to have been so taken into account in the case of the transferee.

(7)Section 253(13) and section 255(3) of the 1992 Act shall apply in relation to sub-paragraph (4) above for the purposes, respectively, of cases corresponding to those falling within subsections (7) and (8) of section 253 of that Act and cases corresponding to those falling within subsection (10) of section 254 of that Act, as they apply for the purposes of those subsections.

Chargeable gains: assets held before 6th April 1965E+W+S+N.I.

10Schedule 2 to the 1992 Act (assets held on 6th April 1965) shall have effect in relation to any assets which vest in the transferee by virtue of a relevant transfer as if—E+W+S+N.I.

(a)the predecessor and the transferee were the same person; and

(b)those assets, so far as they were in fact acquired or provided by the predecessor, were acquired or provided by the transferee.

Transfers of trading stockE+W+S

11(1)For the purposes of the Corporation Tax Acts if, in the case of any relevant transfer, any trading stock of the predecessor—E+W+S

(a)is vested in the transferee by virtue of the transfer, and

(b)falls, immediately after the time when the transfer comes into force, to be treated as trading stock of the transferee,

then, for the purpose of computing the profits and gains both of the trade in relation to which it is trading stock immediately before that time and of the trade in relation to which it is trading stock after that time, sub-paragraph (2) below shall apply to the stock.

(2)Where this sub-paragraph applies to any stock, that stock—

(a)shall be deemed—

(i)to have been disposed of by the predecessor in the course of the trade that is carried on by the predecessor;

(ii)to have been acquired by the transferee in the course of the trade that is carried on by the transferee; and

(iii)subject to that, to have been disposed of and acquired at the time when the transfer comes into force;

and

(b)shall be valued for the purposes of each of the trades mentioned in sub-paragraph (1) above as if the disposal and acquisition had been for a consideration which in relation to the predecessor would have resulted in neither a profit nor a loss being brought into account in respect of the disposal in the accounting period of the predecessor which ends with, or is current at, that time.

(3)In this paragraph “trading stock” has the same meaning as in section 100 of the 1988 Act.

Transfer of rights to receiptsE+W+S+N.I.

12Where by virtue of any relevant transfer there is transferred any right of the predecessor to receive any amount which is for the purposes of corporation tax—E+W+S+N.I.

(a)an amount brought into account as a trading receipt of the predecessor for any accounting period ending before the time when the transfer comes into force, or

(b)an amount falling to be so brought into account if it is assumed that the last such accounting period of the predecessor ended immediately before that time,

the transfer shall not require any modification of the way that amount has been and is to be treated in relation to the predecessor for those purposes or entitle any amount due or paid in respect of that right to be treated as a trading receipt of the transferee for any accounting period.

Transfer of liabilitiesE+W+S+N.I.

13(1)If, by virtue of any relevant transfer, there is transferred any liability the amount of which is for the purposes of corporation tax—E+W+S+N.I.

(a)an amount brought into account as deductible in computing the predecessor’s profits, or any description of the predecessor’s profits, for any accounting period ending before the time when the transfer comes into force, or

(b)an amount falling to be so brought into account if it is assumed, where it is not the case, that the accounting period of the predecessor current on the day before the transfer comes into force ends immediately before that time,

then that transfer shall not require any modification of the way that amount has been or is to be treated in relation to the predecessor for those purposes or entitle any amount due or paid in respect of that liability to be deductible in computing the transferee’s profits, or any description of the transferee’s profits, for any accounting period.

(2)Where the amount of any liability which in consequence of any relevant transfer falls to be discharged by the transferee is an amount which would (but for that and any other transfer) have fallen to be deductible in computing the predecessor’s profits, or any description of the predecessor’s profits, for any accounting period beginning with the coming into force of the transfer or at any subsequent time, that amount—

(a)shall not be so deductible; but

(b)subject to sub-paragraph (3) below, shall be deductible in computing the transferee’s profits to the same extent as if the transferee had become subject to the obligation in pursuance of which the liability arises or has arisen at the same time and for the same consideration, and otherwise on the same terms and in the same circumstances, as the predecessor;

and for the purposes of this sub-paragraph it shall be assumed, where it is not the case, that the accounting period of the predecessor current on the day before the transfer comes into force ends immediately before the coming into force of that transfer.

(3)For the purposes of corporation tax, where any relevant transfer has the effect that any liability falls to any extent to be discharged by the transferee instead of by the predecessor, the amounts deductible in computing the transferee’s profits, or any description of the transferee’s profits, for any accounting period shall not include any amount in respect of so much of that liability as falls to be so discharged unless it is an amount which (but for that and any other transfer) would have fallen to be deductible in computing the predecessor’s profits, or any description of the predecessor’s profits, for any accounting period beginning or ending after the coming into force of that transfer.

(4)The preceding provisions of this paragraph shall apply in relation to the deduction of charges on income against the total profits of the predecessor or transferee for any period as they apply in relation to the deduction of any amount in the computation for that period of the profits of the predecessor or, as the case may be, of the transferee.

(5)For the purposes of Chapter II of Part VI of the 1988 Act (definition of distributions), where in the case of any relevant transfer any consideration given or treated as given in respect of a security relating to—

(a)any liability, or

(b)the use of the principal to which any liability, being a liability to interest or an equivalent liability, relates,

would fall (apart from this sub-paragraph) to be regarded for those purposes as new consideration received by the predecessor, that consideration shall be treated instead, to the extent that it relates to so much of the liability as falls in consequence of the transfer to be discharged by the transferee and is not a liability to which sub-paragraph (1) above applies, as if it were new consideration received by the transferee.

Losses to be retained by the predecessorE+W+S+N.I.

14(1)Notwithstanding anything in the preceding provisions of this Part of this Schedule or in Schedule 2 or 3 to this Act, the relevant unallowed tax losses of the predecessor—E+W+S+N.I.

(a)shall not be capable, at any time after a relevant transfer comes into force, of being brought into account for any of the purposes of the Corporation Tax Acts in relation to the taxation of the transferee; but

(b)shall continue, to the same extent as before, to be treated after any relevant transfer as unallowed tax losses of the predecessor.

(2)In sub-paragraph (1) above “relevant unallowed tax losses” means—

(a)if the accounting period of the predecessor ends immediately before the coming into force of the relevant transfer, the unallowed tax losses of the predecessor as at the end of that period; and

(b)in any other case, any losses, expenses, charges or amounts which would be unallowed tax losses of the predecessor immediately before the coming into force of the relevant transfer, if an accounting period of the predecessor had ended at that time.

(3)In this paragraph “unallowed tax losses” means any losses, expenses, charges or amounts which are tax losses within the meaning of section 400(2)(a), (b), (d) or (e) of the 1988 Act.

Section 35 of the 1988 ActE+W+S+N.I.

15(1)Section 35 of the 1988 Act (charge on lease granted at an undervalue) shall not apply in the case of any lease the grant of which is effected by means of a relevant transfer.E+W+S+N.I.

(2)Section 87 of the 1988 Act (taxable premiums) shall not apply where there is an amount which would have become chargeable in relation to any land but for sub-paragraph (1) above; and, accordingly, references to any such amount shall not be included in references in that section to the amount chargeable.

(3)In this paragraph “lease” has the same meaning as in Part II of the 1988 Act.

Group reliefE+W+S+N.I.

16The existence of the powers of the Secretary of State under section 12 of and Schedule 2 to this Act shall not be regarded as constituting arrangements within the meaning of section 410 of the 1988 Act (arrangements for the transfer of a company to another group or consortium) or as constituting option arrangements for the purposes of paragraph 5B of Schedule 18 to that Act.E+W+S+N.I.

Special provision for successor companiesE+W+S+N.I.

17(1)Where—E+W+S+N.I.

(a)by virtue of any relevant transfer any liability for any loan made to the predecessor vests in a successor company, and

(b)at the coming into force of that transfer that company is wholly owned by the Crown,

the vesting of liability for that loan in that company shall not affect any direction in respect of the loan given or having effect as if given by the Treasury under section 581 of the 1988 Act (income tax exemption for interest on foreign currency securities).

(2)Any share issued by a successor company in pursuance of paragraph 2 of Schedule 3 to this Act shall be treated for the purposes of the Corporation Tax Acts as if it had been issued wholly in consideration of a subscription paid to that company of an amount equal to the nominal value of the share.

(3)Any debenture issued by a successor company in pursuance of paragraph 2 of Schedule 3 to this Act shall be treated for the purposes of the Corporation Tax Acts as if it had been issued—

(a)wholly in consideration of a loan made to that company of an amount equal to the principal sum payable under the debenture; and

(b)wholly and exclusively for the purposes of the trade carried on by that company.

(4)If any debenture issued as mentioned in sub-paragraph (3) above includes provisions for the payment of a sum expressed as interest in respect of a period which falls wholly or partly before the issue of the debenture, any payment made in pursuance of that provision in respect of that period shall be treated for the purposes of the Corporation Tax Acts as if the debenture had been issued at the commencement of that period and, accordingly, as interest on the principal sum payable under the debenture.

Leased assetsE+W+S+N.I.

18(1)For the purposes of section 781 of the 1988 Act (assets leased to traders and others), where the interest of the lessor or the lessee under a lease, or any other interest in an asset, vests in any person by virtue of a relevant transfer—E+W+S+N.I.

(a)the transfer shall be treated as made without any capital sum having been obtained in respect of that interest by the predecessor or the transferee; and

(b)in a case where the interest is an interest under a lease, payments made by the predecessor under the lease before the coming into force of the transfer shall be deemed to have been made under that lease by the transferee.

(2)Section 782 of the 1988 Act (deduction of payment under leases: special cases) shall not apply to any payments made—

(a)under any lease granted for the purposes of the creation in accordance with a restructuring scheme of any leasehold interest, including, where effect has been given without the grant of a lease to the creation of a leasehold interest in accordance with such a scheme, any lease which for those purposes is deemed to have been granted; or

(b)under any lease granted by a person whose ability to grant that lease derives from the transfer to him in accordance with a restructuring scheme of the asset to which the lease relates.

(3)In this paragraph “lease” and “asset” have the meanings given by section 785 of the 1988 Act and references to a leasehold interest are references to any such interest as may subsist under a lease.

Continuity in relation to capital allowances etc. where trade transferredE+W+S+N.I.

19(1)Subject to the following provisions of this Part of this Schedule, where, apart from this paragraph—E+W+S+N.I.

(a)the predecessor would be treated for the purposes of the Corporation Tax Acts as having ceased, by virtue of the coming into force of a relevant transfer, to carry on any trade, and

(b)the transferee would be treated as having begun, on the coming into force of that transfer, to carry it on,

then the trade shall not be treated as permanently discontinued, nor a new trade as set up, for the purposes of the allowances and charges provided for by [F16the Capital Allowances Act], but sub-paragraphs (2) to (4) below shall apply.

(2)Subject to sub-paragraphs (3) and (4) below, in a case falling within sub-paragraph (1) above—

(a)there shall be made to or on the transferee in accordance with [F16the Capital Allowances Act] all such allowances and charges as would, if the predecessor had continued to carry on the trade, have fallen to be made to or on the predecessor; and

(b)the amount of any such allowance or charge shall be computed as if—

(i)the transferee had been carrying on the trade since the predecessor began to do so; and

(ii)everything done to or by the predecessor had been done to or by the transferee (but so that the relevant transfer itself, so far as it relates to any assets in use for the purpose of the trade, shall not be treated as giving rise to any allowance or charge).

(3)For the purposes of the Corporation Tax Acts, only such amounts (if any) as may be specified in or determined in accordance with the restructuring scheme providing for a relevant transfer shall be allocated to the transferee in respect of—

(a)expenditure by reference to which capital allowances may be made by virtue of sub-paragraph (2) above in relation to anything to which the transfer relates; and

(b)allowances which (apart from the allocation and irrespective of what are in fact the accounting periods of the predecessor) would, under [F17section 260 of the Capital Allowances Act], be carried forward, in relation to anything to which the transfer relates, to an accounting period of the predecessor beginning immediately before the coming into force of that transfer.

(4)Sub-paragraph (2) above shall affect the amounts falling to be taken into account in relation to the predecessor—

(a)as expenditure by reference to which capital allowances may be made, or

(b)as an allowance carried forward under [F17section 260 of the Capital Allowances Act],

only so far as necessary to give effect to a reduction of any such amount by a sum equal to so much of that amount as is allocated to the transferee as mentioned in sub-paragraph (3) above.

(5)Subject to sub-paragraph (6) below, the provisions of a restructuring scheme providing for the determination of any amount which for the purposes of sub-paragraph (3) above is to be allocated, in the case of any relevant transfer, to the transferee may include provision—

(a)for such a determination to be made by the Secretary of State in such manner as may be described in the scheme;

(b)for any amount determined to be calculated by reference to such factors or to the opinion of such person as may be so described; and

(c)for a determination under those provisions to be capable of being modified, on one or more occasions, in such manner and in such circumstances as may be so described.

(6)The consent of the Treasury shall be required for the making or modification of a determination of any such amount as is mentioned in sub-paragraph (5) above; and the consent of the transferee shall also be required for any such modification after the relevant transfer.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F16Words in Sch. 4 para. 19(1)(2)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(2)

F17Words in Sch. 4 para. 19(3)(b)(4)(b) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(3)

Capital allowances in cases where paragraph 19 does not applyE+W+S+N.I.

20(1)Subject to paragraph 21 below, [F18the Capital Allowances Act]shall have effect in accordance with this paragraph in relation to any property if—E+W+S+N.I.

(a)it is property to which a relevant transfer relates; and

(b)paragraph 19 above does not apply in relation to its transfer to the transferee;

and in this paragraph “the relevant scheme”, in relation to property to which a relevant transfer relates, means the restructuring scheme that provides for that transfer.

(2)Where—

(a)[F19section 573 of the Capital Allowances Act (transfers treated as sales) as it applies for the purposes of Part 3 of that Act] applies on the relevant transfer in relation to the property, and

(b)the relevant scheme contains provision for the sale of that property which is deemed to occur by virtue of [F20that section] to be deemed for the purposes of the [F21that Act] to be at a price specified in or determined in accordance with the scheme,

that deemed sale shall be treated as a sale at the price so specified or determined (instead of at the price determined in accordance with [F20that section] or any other provision of [F22that Act), sections 567 to 570 of that Act] shall not apply and that provision of the scheme shall have an equivalent effect in relation to the expenditure which the transferee is to be treated as having incurred in making the corresponding purchase.

(3)Where the property is plant or machinery which would, for the purposes of [F18the Capital Allowances Act], be treated on the coming into force of the relevant transfer as disposed of by the predecessor to the transferee and the relevant scheme contains provision for the disposal value of that property to be deemed for the purposes of [F21that Act] to be of such amount as may be specified in or determined in accordance with the scheme—

(a)that provision shall have effect, instead of [F23section 61(2) to (4), 72(3) to (5), 171, 196 or 423 of the Capital Allowances Act], for determining an amount as the disposal value of the property or, as the case may be, as the price at which any fixture is to be treated as sold;

(b)the transferee shall be deemed to have incurred expenditure of that amount on the provision of that property; and

(c)in the case of a fixture, the expenditure which falls to be treated as incurred by the transferee shall be deemed for the purposes of [F24sections 181(1) and 182(1)] of that Act to be incurred by the giving of a consideration consisting in a capital sum of that amount.

(4)Where—

(a)the predecessor has been carrying on a trade of mineral extraction, and

(b)the relevant scheme contains provision for the amount specified in or determined in accordance with the scheme to be brought into account [F25in accordance with sections 421 to 425 of the Capital Allowances Act (mineral extraction allowances: disposal receipts)] as a disposal receipt,

that amount, instead of any other amount, shall be so brought into account as such a receipt in respect of the transfer of the property in accordance with the relevant scheme or of the predecessor’s otherwise ceasing to use the property in consequence of that transfer.

(5)Where—

(a)the acquisition of the property by the transferee in accordance with the relevant scheme would be a balancing event for the purposes of [F26Part 4 of the Capital Allowances Act (agricultural buildings allowances)] if an election were made under [F27section 382] of that Act, and

(b)the relevant scheme contains provision for the price paid by the transferee to the predecessor for the property to be deemed, for the purposes of [F21that Act], to be such amount as may be specified in or determined in accordance with the scheme,

such an election shall be deemed to have been made and the sale moneys related to that event shall be deemed for the purposes of [F28section 385 of the Capital Allowances Act (calculation of balancing adjustment)] to be equal to that amount.

(6)Where—

(a)the transfer of the property in accordance with the relevant scheme would be a [F29disposal event for the purposes of Chapter 3 of Part 6 of the Capital Allowances Act (research and development allowances: allowances and charges)], and

(b)the relevant scheme contains provision for an amount specified in or determined in accordance with the scheme to be treated for the purposes of [F30that Chapter] as the disposal value of that property,

[F30that Chapter] shall have effect accordingly.

(7)A disposal or acquisition in relation to which provision is made by the relevant scheme under any of sub-paragraphs (4) to (6) above shall not for any of the purposes of [F18the Capital Allowances Act] be treated as, or as part of, a transaction falling within [F31section 568(1)(a)] of that Act (sales between connected persons etc.).

(8)Sub-paragraphs (5) and (6) of paragraph 19 above shall apply in relation to any determination of any amount in accordance with any provision made by a restructuring scheme for the purposes of this paragraph as they apply for the purposes of a determination such as is mentioned in those sub-paragraphs.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F18Words in Sch. 4 para. 20(1)(3)(7) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(4)(6)(a)(10)(a)

F19Words in Sch. 4 para. 20(2)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(5)(a)

F20Words in Sch. 4 para. 20(2)(b) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(5)(b)(c)

F21Words in Sch. 4 para. 20(2)(b)(3)(5)(b) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(5)(b)(6)(b)(8)(b)

F22Words in Sch. 4 para. 20(2) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(5)(d)

F23Words in Sch. 4 para. 20(3)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(6)(c)

F24Words in Sch. 4 para. 20(3)(c) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(6)(d)

F25Words in Sch. 4 para. 20(4)(b) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(7)

F26Words in Sch. 4 para. 20(5)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(8)(a)

F27Words in Sch. 4 para. 20(5)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(8)(a)

F28Words in Sch. 4 para. 20(5) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(8)(c)

F29Words in Sch. 4 para. 20(6)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(9)(a)

F30Words in Sch. 4 para. 20(6)(b) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(9)(b)(c)

F31Words in Sch. 4 para. 20(7) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(10)(b)

Capital allowances in cases where interests created by restructuring schemeE+W+S+N.I.

21(1)This paragraph shall apply where—E+W+S+N.I.

(a)an interest or right in or in relation to any property (“the relevant property”) is retained, or under paragraph 24 below is deemed to be retained, by the predecessor following any relevant transfer; and

(b)any other interest or right in or in relation to that property vests by virtue of that transfer in the transferee;

and in this paragraph references to the retained property are references to the interest or right mentioned in paragraph (a) above and references to the transferred property are references to the interest or right mentioned in paragraph (b) above.

(2)Where—

(a)the relevant transfer is one which is deemed to be made by virtue of paragraph 24(4) below,and

(b)the restructuring scheme in accordance with which it is made provides for this sub-paragraph to apply in relation to the relevant property,

[F32the Capital Allowances Act], sections 41 and 174 of the 1992 Act and paragraphs 19 and 20 above shall have effect for all purposes as if the interests or rights of the predecessor in or in relation to the relevant property had always been confined to the retained property and, accordingly, as if all allowances and charges made to or on the predecessor in relation to the relevant property, and anything done by or with respect to the predecessor in relation to the relevant property, had been made or done in relation to the retained property.

(3)Where—

(a)any interest or right of any person is under sub-paragraph (2) above to be treated as having always been confined to a particular interest or right in or in relation to any property,

(b)that property is a fixture, and

(c)any of the requirements of [F33Chapter 14 of Part 2 of the Capital Allowances Act] which did not in fact apply in relation to the property before the coming into force of the scheme in question would have had to be satisfied (if the interest had been so confined) for [F32the Capital Allowances Act] to apply in relation to that property as [F34it did] in fact apply before that time,

[F35that Act] and the preceding provisions of this Part of this Schedule shall have effect as if those requirements had been satisfied.

(4)Where—

(a)any interest or right of any person in or in relation to any property is under sub-paragraph (2) above to be treated as having always been confined to an interest under a lease (within the meaning of [F36section 70 of the Capital Allowances Act]) of that property,

(b)that property is [F37plant or machinery] which is not so installed or otherwise fixed in or to a building or any other description of land as to become, in law, a part of that building or land, and

(c)the restructuring scheme in accordance with which the relevant transfer relating to the [F37plant or machinery] is made provides for this sub-paragraph to apply in relation to that property,

[F32the Capital Allowances Act] and the preceding provisions of this Part of this Schedule shall have effect (with the provisions of sub-paragraph (2) above so far as they apply to the lease) as if the capital expenditure on the provision of that [F37plant or machinery] was expenditure on [F37plant or machinery] which that person was required to provide under the terms of the lease.

(5)Where sub-paragraph (2) above is not applied in relation to the relevant property, paragraph 5 above shall not apply but the capital allowances which shall be taken into account in pursuance of section 41 of the 1992 Act (restriction of losses by reference to capital allowances) on—

(a)the disposal by the transferee of the transferred property or any part of it, or

(b)the disposal by the predecessor of the retained property or any part of it,

shall include, so far as not already taken into account under that section or this sub-paragraph, any capital allowances (within the meaning of that section) which have been made or fall to be made to the predecessor in relation to the relevant property.

(6)In determining for the purposes of sub-paragraph (5) above whether or the extent to which any amount has been taken into account in pursuance of section 41 of the 1992 Act or that sub-paragraph, an amount so taken into account for the purpose of restricting any loss shall be assumed to be taken into account at the time when the loss accrues.

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Amendments (Textual)

F32Words in Sch. 4 para. 21(2)(3)(c)(4) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(11)(12)(b)(13)(b)

F33Words in Sch. 4 para. 21(3)(c) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(12)(a)

F34Words in Sch. 4 para. 21(3)(c) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(12)(c)

F35Words in Sch. 4 para. 21(3) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(12)(d)

F36Words in Sch. 4 para. 21(4)(a) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(13)(a)

F37Words in Sch. 4 para. 21(4) substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(13)(c)

Capital allowances for machinery and plant: connected personsE+W+S+N.I.

22For the purposes of [F38Part 2 of the Capital Allowances Act] references in that Part to a transaction (however described) between connected persons within the meaning of section 839 of the 1988 Act shall not include references to any relevant transfer.E+W+S+N.I.

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Amendments (Textual)

F38Words in Sch. 4 para. 22 substituted (22.3.2001 with effect as mentioned in s. 579(1) of the amending Act) by 2001 c. 2, s. 578, Sch. 2 para. 93(14)

Exchange gains and lossesE+W+S+N.I.

23(1)This paragraph shall apply where—E+W+S+N.I.

(a)in consequence of so much of any relevant transfer as relates to any qualifying asset, qualifying liability or currency contract, any accrual period ends, as regards that asset, liability or contract, with the time immediately before the coming into force of the transfer; and

(b)that time would not be a translation time apart from the transfer.

(2)For the purposes of Chapter II of Part II of the M111Finance Act 1993 (exchange gains and losses) the exchange rate to be used in finding the local currency equivalent at the translation time mentioned in sub-paragraph (1) above of—

(a)the basic valuation of an asset or liability,

(b)the nominal amount of a debt outstanding, or

(c)an amount of currency,

shall (subject to sub-paragraph (3) below) be the same as that used at the translation time with which the accrual period so mentioned began.

(3)Where the accrual period mentioned in sub-paragraph (1) above is one in relation to which section 127 of the Finance Act 1993 (accrual on debts whose amounts vary) applies, that section shall have effect as if the local currency equivalent, at the translation time with which that period ends, of the nominal amount of the debt then outstanding were an amount equal to the first amount (within the meaning of that section).

(4)For the purposes mentioned in sub-paragraph (2) above, where the preceding provisions of this paragraph apply for finding the local currency equivalent of any valuation or amount at the time immediately before the coming into force of a relevant transfer, the equivalent found in accordance with those provisions shall also be deemed to be the local currency equivalent of that valuation or amount at the translation time which, in consequence of the transfer, falls immediately after the transfer comes into force.

(5)This paragraph shall be construed as one with Chapter II of Part II of the M112Finance Act 1993.

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Marginal Citations

Transfers of property in coal and lease back etc.E+W+S+N.I.

24(1)Subject to the following provisions of this paragraph—E+W+S+N.I.

(a)this Part of this Schedule shall have effect as if the transfer made by section 7(3) of this Act were made in accordance with a restructuring scheme coming into force on the restructuring date; and

(b)any provisions of this Part of this Schedule by virtue of which provision may be contained in the restructuring scheme in accordance with which a relevant transfer is made shall have effect, in relation to the transfer made by section 7(3) of this Act, as if they authorised the inclusion of that provision in any restructuring scheme which is to take effect on the restructuring date.

(2)Subject to sub-paragraph (3) below, where any interests or rights are created, in accordance with any restructuring scheme, in or in relation to any property which—

(a)is property to which section 7(3) of this Act applies,

(b)is retained, subject to those interests and rights, by the Corporation or any of its wholly-owned subsidiaries, or

(c)in accordance with a restructuring scheme is transferred, with effect from the time at or immediately before which the creation of the interests or rights takes effect, from the Corporation or one of its wholly-owned subsidiaries to any other person,

those interests or rights, so far as they are created in favour of a public sector body shall be treated for the purposes of the Corporation Tax Acts and this Part of this Schedule as transferred from the Corporation or, as the case may be, its subsidiary to that body but not, except for the purposes of paragraphs 2, 4, 10, 15 and 18(1) above, as transferred by virtue of a relevant transfer.

(3)Sub-paragraph (2) above shall not apply in relation to the creation in favour of the Corporation or any of its wholly-owned subsidiaries, in accordance with any restructuring scheme, of any interest or right in or in relation to—

(a)property to which section 7(3) of this Act applies; or

(b)any other property in or in relation to which the Corporation or, as the case may be, that subsidiary owned some other interest or right immediately before the created interest or right comes into existence.

(4)Where any restructuring scheme contains provision for the creation in favour of the Corporation or any of its wholly-owned subsidiaries of any interest or right in or in relation to any such property as is mentioned in sub-paragraph (3)(a) or (b) above, the only transfer which shall be deemed for the purposes of the Corporation Tax Acts and this Part of this Schedule to have taken place in accordance with that provision shall be a transfer (subject to the retention of the created interest or right) from the Corporation or that subsidiary of—

(a)any interest or right in or in relation to that property which, by virtue of that scheme, is to be retained by the Authority; and

(b)the interest or right in or in relation to that property which in accordance with the scheme is transferred to any other person, together with any interest or right which in accordance with that scheme is created in favour of another person.

(5)Where—

(a)any interest or right is created in accordance with a restructuring scheme in or in relation to any property which has vested in any person (“the intermediary”) by virtue of a relevant transfer,

(b)the intermediary and the person in favour of whom the right or interest is created are both public-sector bodies at the time when the interest or right is created, and

(c)neither sub-paragraph (2) nor sub-paragraph (4) above applies to the creation of that interest or right,

the creation of that interest or right shall be treated for the purposes of the Corporation Tax Acts and this Schedule as a transfer in accordance with a restructuring scheme of the interest or right from the intermediary to the person in favour of whom it is created but not, except for the purposes of paragraphs 2, 4, 10, 15 and 18(1) above and this sub-paragraph, as a relevant transfer.

(6)Where paragraph 10 above applies in the case of any transaction which by virtue of sub-paragraph (5) above is treated for the purposes of that paragraph as a relevant transfer, that paragraph shall have effect in relation to that transaction as if references to the predecessor were references to the person who is the predecessor in relation to the relevant transfer by virtue of which the property in question vested in the intermediary or, where there has been more than one such transaction, the person who by virtue of this sub-paragraph is deemed for the purposes of that paragraph to be the predecessor in the case of the earliest such transaction.

(7)The creation in accordance with a restructuring scheme of any interest or right in any property in which different interests or rights subsist shall not be treated for the purposes of this Schedule as a transfer in accordance with that scheme of the created interest or right except so far as it falls to be so treated by virtue of the preceding provisions of this paragraph.

(8)Subsections (1) and (2) of section 779 of the 1988 Act (sale and lease back) shall not apply where the liability of the transferor (within the meaning of that section) or of the person associated with that transferor is as a result of either—

(a)the creation in accordance with any restructuring scheme of any interest or right; or

(b)any other transaction or series of transactions for which such a scheme provides.

(9)Section 28 of the 1992 Act and paragraph 2(2) above shall apply for determining for the purposes of this paragraph the time as from which the creation of any interest or right takes effect as they apply for the purpose of determining the time of the disposal and acquisition of any asset.

Modifications of restructuring schemeE+W+S+N.I.

25Where the effect of any restructuring scheme is modified in pursuance of any agreement which takes effect under paragraph 6(2) of Schedule 2 to this Act, the Corporation Tax Acts and this Part of this Schedule shall have effect as if—E+W+S+N.I.

(a)the scheme originally made had been the scheme as modified; and

(b)anything done by or in relation to the person who without the modification became entitled or subject in accordance with the scheme to any property, rights or liabilities had, so far as relating to the property, rights or liabilities to which another person becomes entitled or subject in consequence of the modification, been done by or in relation to that other person.

Part IIE+W+S Stamp Duty and Stamp Duty Reserve Tax

Transactions attracting exemptionsE+W+S

26For the purposes of this Part of this Schedule a transaction is an exempt transaction if it is a transaction by virtue of which property, rights or liabilities are vested by or under Part I of this Act in a person who is a public-sector body within the meaning of Part I of this Schedule.E+W+S

Stamp dutyE+W+S

27(1)Subject to sub-paragraph (2) below, an exempt transaction shall not give rise to any charge to stamp duty except in so far as the charge to duty is on an instrument under this Act which is neither a restructuring scheme nor an instrument that has been certified to the Commissioners of Inland Revenue by the Secretary of State to have been made—E+W+S

(a)in pursuance of a restructuring scheme; or

(b)by virtue of any provision of this Act, for the purpose of modifying the effect of such a scheme.

(2)No instrument which is certified as mentioned in sub-paragraph (1) above shall be taken to be duly stamped unless—

(a)it is stamped with the duty to which it would, but for that sub-paragraph, be liable; or

(b)it has, in accordance with section 12 of the M113Stamp Act 1891, been stamped with a particular stamp denoting that it is not chargeable with that duty or that it is duly stamped.

(3)Stamp duty shall not be chargeable on any instrument by which the Treasury or the Secretary of State, or any nominee of the Treasury or the Secretary of State, transfers securities of a company to another company if—

(a)at least one of those companies is a successor company; and

(b)each of the companies is wholly owned by the Crown at the time when the instrument is made.

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Marginal Citations

Stamp duty reserve taxE+W+S

28(1)No agreement for the purposes of, or for purposes connected with giving effect to—E+W+S

(a)so much of any restructuring scheme as relates to an exempt transaction, or

(b)any exempt transaction to which effect is given by the modification of any restructuring scheme,

shall give rise to a charge to stamp duty reserve tax.

(2)No agreement by which the Treasury or the Secretary of State, or any nominee of the Treasury or the Secretary of State, agrees to transfer securities of a company to another company shall give rise to a charge to stamp duty reserve tax if—

(a)at least one of those companies is a successor company; and

(b)each of the companies is wholly owned by the Crown at the time when the instrument is made.

Section 22.

SCHEDULE 5E+W+S Pensions Provision in connection with Restructuring

Interpretation of ScheduleE+W+S

1(1)In this Schedule—E+W+S

  • assets”, in relation to any existing scheme, means all the assets for the time being held for the purposes of the scheme by the trustees of the scheme, including every interest in property and right to which the trustees of the scheme are for the time being entitled, together with any liabilities, not being liabilities in respect of pension obligations, to which any entitlement of the trustees to any of the scheme’s assets is subject;

  • existing scheme” means any scheme having effect by virtue of regulations made under section 37 of the 1946 Act for purposes relating to pensions, gratuities or other like benefits;

  • pension”, in relation to any person, means a pension of any kind payable to or in respect of that person, including—

    (a)

    a lump sum, allowance or gratuity so payable; and

    (b)

    a return of contributions, with or without interest or any other addition;

  • pension obligation” means any present, future or contingent obligation to make a payment which is an obligation to which pension rights of the person to whom it is owed give rise;

  • pension rights”, in relation to any person, includes all forms of right to or eligibility for the present or future payment of a pension to or in respect of that person and any right of allocation in respect of the present or future payment of a pension;

  • prescribed” means prescribed by regulations made by the Secretary of State;

  • the relevant enactments” means Chapter I of Part XIV of the M114Income and Corporation Taxes Act 1988 (retirement benefit schemes) and Part III of the M115Pension Schemes Act 1993 (so far as relating to occupational pension schemes within the meaning of that Act).

(2)References in this Schedule to a scheme being approved for the purposes of Part III of the M116Pension Schemes Act 1993 are references to its being included in a contracting-out certificate having effect for the purposes of that Part of that Act.

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Marginal Citations

Modification of existing schemesE+W+S

2(1)The Secretary of State may by regulations make provision in relation to an existing scheme for it to continue in force notwithstanding the repeal by this Act of section 37 of the 1946 Act and of the enactments modifying that section.E+W+S

(2)Without prejudice to any powers conferred (so long as it remains in force) by section 37 of the 1946 Act, the Secretary of State may by regulations make such provision as he considers appropriate in connection with the provisions of this Act for modifying any existing scheme.

(3)Without prejudice to the generality of the power conferred by sub-paragraph (2) above, the modifications of an existing scheme that may be made by regulations under this paragraph shall include modifications for any of the following purposes, that is to say—

(a)for conferring power on the Secretary of State or any other prescribed person to appoint trustees of the existing scheme or for requiring trustees to be appointed only in such manner and in such circumstances, or with the approval of the Secretary of State or such other person, as may be prescribed;

(b)for enabling a person who is entitled to appoint trustees of the existing scheme to remove trustees of the scheme from office;

(c)for requiring or enabling powers or duties of any person under the existing scheme to be exercisable or performed by or in accordance with the directions of such persons or in such circumstances, or to be exercisable or performed only in such manner or with the consent of such persons, as may be prescribed;

(d)for providing that persons who have become entitled in respect of any period of employment to be participants in another prescribed scheme are not, as from such time as may be determined in accordance with the regulations, to be entitled in respect of that period of employment to be participants in the existing scheme;

(e)for facilitating the transfer in prescribed circumstances to another scheme of—

(i)rights and liabilities under the existing scheme of any participant in the existing scheme who becomes a participant in the other scheme; or

(ii)the benefit of any arrangements under which participants in the existing scheme are relieved from any obligation to make contributions;

(f)for the apportionment and allocation to particular rights and liabilities of assets of the existing scheme and for the transfer of assets to other schemes in connection with any provision made by virtue of this Schedule;

(g)for restricting the persons who are to be able on and after the restructuring date to become participants in the existing scheme;

(h)for enabling expenses incurred in or in connection with the management or other administration of the existing scheme to be met out of the assets of the scheme;

(i)for securing that the existing scheme continues to be approved for the purposes of the relevant enactments;

(j)for enabling the existing scheme to be wound up (in whole or in part) in such circumstances as may be prescribed.

(4)The modifications of an existing scheme that may be made by regulations under this paragraph shall include modifications making such provision as the Secretary of State considers appropriate for cases where either—

(a)there are assets of the scheme representing a relevant surplus, or

(b)the assets of the scheme are insufficient for meeting pension obligations under the scheme.

(5)The modifications mentioned in sub-paragraph (4) above may contain—

(a)provision for a relevant surplus, and the assets representing it, to be apportioned between—

(i)the part (if any) of the surplus which is to be retained in a reserve (“an investment reserve”) as an asset of the scheme, and

(ii)the remainder (“the distributable part”) of the surplus;

(b)provision for the management of assets representing an investment reserve and for the manner in which any such assets are to be applied;

(c)provision for income accruing in respect of assets representing an investment reserve to be added to the reserve;

(d)provision for the manner in which assets representing the distributable part of a relevant surplus are to be applied; and

(e)provision, for the purposes of any provision under paragraphs (a) to (d) above, for modifying any decisions as to the way in which relevant surpluses determined as at times before the restructuring date, and the assets representing any such surpluses, are to be treated.

(6)The provision as to the apportionment of any surplus or assets to an investment reserve that may be contained in modifications made by virtue of sub-paragraph (4) above shall not include any provision authorising the allocation to such a reserve of any part of a surplus determined as at a time after 31st March 1994, or of any assets representing any part of such a surplus, except where the allocation is made for making good amounts which (apart from any entitlement for which provision is made by virtue of sub-paragraph (7) below) would have been comprised in the value of the reserve if assets representing any part of it had not been applied from the reserve in meeting a deficiency that arose as at any time by reason of the other assets of the scheme having been insufficient as at that time for meeting pension obligations under the scheme.

(7)The provision as to the application of assets representing an investment reserve that may be contained in modifications made by virtue of sub-paragraph (4) above shall include provision for the Secretary of State to become entitled where—

(a)any such arrangements as are mentioned in sub-paragraph (9) below have been entered into in relation to pension obligations under the scheme in question, and

(b)the value of the assets representing the reserve exceeds the aggregate amount required for the purposes for which the reserve has been retained,

to assets of the scheme representing the amount of the excess or, where those purposes have ceased, the value of the reserve.

(8)The provision as to the application of assets representing the distributable part of a relevant surplus that may be contained in modifications made by virtue of sub-paragraph (4) above shall include provision for the Secretary of State to become entitled where—

(a)the surplus is one determined as at a time on or after 31st March 1994, and

(b)any such arrangements as are mentioned in sub-paragraph (9) below have been entered into in relation to pension obligations under the scheme in question,

to assets of the scheme representing no more than one half of the distributable part of that surplus.

(9)The Secretary of State may, with the consent of the Treasury, enter into such arrangements as he may consider appropriate for guaranteeing or otherwise securing, in relation to any existing scheme, that the assets of the scheme are at all times sufficient for meeting the principal pension obligations and such other pension obligations under the scheme as are obligations to which he considers such arrangements should apply.

(10)Sums required by the Secretary of State for making any payment in pursuance of any arrangements entered into by him under sub-paragraph (9) above shall be paid out of money provided by Parliament; and any sums received by him by virtue of sub-paragraph (7) or (8) above shall be paid into the Consolidated Fund.

(11)Regulations under this paragraph may provide for—

(a)any such apportionments or allocations as are mentioned in the preceding sub-paragraphs,

(b)any determination for the purposes of any existing scheme of the amount of, or of any part of, any surplus or excess or of the assets for the time being to be treated as representing the whole or any part of any such surplus or excess, and

(c)the determination of any other matter falling to be determined for the purposes of any provision relating, in the case of any such scheme, to the management or application of the assets representing any reserve or surplus,

to be made as at such times, on such basis and by reference to the opinion of such persons as may be prescribed.

(12)The power by regulations under this paragraph to modify an existing scheme shall not authorise the making of any modification which, in relation to the person entitled to it, adversely affects so much of any pension right as gives rise to any of the principal pension obligations under that scheme.

(13)Before making any regulations under this paragraph in relation to an existing scheme the Secretary of State shall consult with the Corporation and the trustees for the time being of that scheme.

(14)The power to make regulations under this paragraph shall not be exercisable at any time after the end of the period of two years beginning with the restructuring date; but this sub-paragraph shall be without prejudice to any regulations made before the end of that period or to anything done (whether before or after the end of that period) under any regulations so made.

(15)In this paragraph “relevant surplus”, in relation to an existing scheme, means any surplus determined as at any time on or after 31st March 1992 of the assets of the scheme over the amounts required, as at that time, for meeting the obligations which (apart from the surplus) either have arisen or may arise as pension obligations under the scheme.

(16)In this paragraph references to the principal pension obligations under an existing scheme are references to the following, that is to say—

(a)so much of any pension obligation arising under the scheme as derives neither from modifications of the scheme made on or after the restructuring date nor from any relevant surplus;

(b)so much of any pension obligation arising under the scheme as represents the effect on any pension right giving rise to a pension obligation falling within paragraph (a) above of any decision before 1st September 1994 to appropriate any of a relevant surplus determined as at a time before 31st March 1994 to the payment of increases in any pensions payable in pursuance of that right; and

(c)so much of any pension obligation arising under the scheme as represents the effect on any pension right giving rise to a pension obligation falling within paragraph (a) or (b) above of any provisions of the scheme, as modified on or after the restructuring date, which require that right to be varied from time to time by reference to fluctuations in any level of prices in Great Britain.

Replacement schemes for employees transferred to the private sector etc.E+W+S

3(1)The Secretary of State may by regulations make such provision as he thinks fit for securing that arrangements are made and implemented in relation to any existing scheme for enabling participants in that scheme to become participants in another pension scheme (“a new scheme”) which—E+W+S

(a)is established, under and in accordance with the regulations, by the Corporation or such other person as may be prescribed; and

(b)satisfies the statutory requirements by reference to that existing scheme.

(2)Where at any time the employment of any participant in any existing scheme in relation to which a new scheme has been established in pursuance of regulations under this Schedule is affected—

(a)by the coming into force of any provisions of a restructuring scheme in accordance with which a person other than the Authority becomes his employer in place of the Corporation or one of its wholly-owned subsidiaries, or

(b)by a company’s having ceased at any time on or after the restructuring date to be a subsidiary of the Corporation,

the duty specified in sub-paragraph (3) below shall arise and be owed to the participant and to every person who at that time is a participant in that existing scheme in respect of his continuing employment with a person other than the Corporation or a subsidiary of the Corporation.

(3)That duty is a duty to secure that the person to whom the duty is owed is afforded, and is entitled to exercise, an option of becoming a participant in the new scheme in respect of the employment to which he is transferred or, as the case may be, in respect of his continuation, after the time when the duty arises, in the employment in respect of which he is at that time participating in the existing scheme.

(4)The duty owed to any person under sub-paragraphs (2) and (3) above shall be owed—

(a)in a case where it is owed to a person who is transferred in accordance with a restructuring scheme from the employment of one person to the employment of another, by the person to whose employment he is transferred; and

(b)in any other case, by the person who, in relation to the employment to which the duty relates, is the employer of the person to whom the duty is owed.

(5)For the purposes of this paragraph, where a company has ceased to be a subsidiary of the Corporation, the persons whose employment shall be treated as affected by the company’s having ceased to be such a subsidiary shall be (and shall be confined to) the persons employed by that company at whichever is the later of the following times, that is to say—

(a)the time when the company ceased to be a subsidiary of the Corporation; and

(b)the time when the company would so cease if any shares in the company which have at any time been transferred (whether in accordance with a restructuring scheme or otherwise) to any of the following persons, that is to say—

(i)the Treasury,

(ii)the Secretary of State,

(iii)a company wholly owned by the Crown, or

(iv)any nominee of the Treasury, the Secretary of State or a company wholly owned by the Crown,

remained vested in the Corporation for so long after their transfer as they remain vested in any of the persons mentioned in sub-paragraphs (i) to (iv) above;

and a person whose employment is affected by a company’s having ceased to be a subsidiary of the Corporation shall be treated for the purposes of this paragraph as so affected only at whichever of the times mentioned in paragraphs (a) and (b) above is applicable in his case.

(6)For the purposes of this paragraph a new scheme satisfies the statutory requirements by reference to an existing scheme (“the previous scheme”) if it contains all such provision as may be prescribed for the purposes specified in sub-paragraph (7) below, together with such other provision as may be prescribed.

(7)The purposes mentioned in sub-paragraph (6) above are the purposes of securing—

(a)that no person is able to participate in the new scheme as an employee unless he is a person falling within sub-paragraph (8) below;

(b)that the new scheme is and continues to be approved for the purposes of the relevant enactments;

(c)that the new scheme provides benefits to and in respect of participants in the new scheme which are no less advantageous than the benefits falling to be provided under the previous scheme as at the time immediately before the restructuring date; and

(d)that the pension rights under the previous scheme of any person who becomes a participant in the new scheme in respect of any employment are capable, at that person’s option, of being transferred so as to become rights under the new scheme.

(8)A person falls within this sub-paragraph if he is—

(a)one of the persons who by virtue of sub-paragraph (2) above is to be afforded the option of becoming a participant in the new scheme;

(b)a person the duties of whose employment with the same employer have changed so that he has ceased to be eligible to participate in a scheme in relation to which he has been entitled to protection under paragraph 4 below but has become a person who satisfies, by reference to his new duties, a condition of eligibility for participation in the new scheme; or

(c)a person with pension rights as a result of having been a participant in an existing scheme who, at any time on or after the restructuring date, enters the employment of a person any of whose employees are already, in respect of their employment with that person, participants in the new scheme.

(9)Regulations under this paragraph prescribing the provision that must be contained in a scheme for it to satisfy the statutory requirements may provide for that provision to be determined by reference to such directions and certificates of the Secretary of State as may be given or issued to such persons, in such cases and in such manner as may be prescribed.

Protection for rights under private sector schemesE+W+S

4(1)This paragraph applies to—E+W+S

(a)any scheme established in pursuance of regulations under paragraph 3(1) above; and

(b)any prescribed scheme the establishment of which appears to the Secretary of State to be, or to have been required, for the purposes of any protection to which any person is entitled by virtue of this paragraph.

(2)The Secretary of State may by regulations impose such restrictions and obligations as appear to him to be appropriate for the purpose of securing—

(a)that no person entitled to protection in relation to a scheme to which this paragraph applies is placed in any worse position by reason of—

(i)any such amendment of the scheme as is made otherwise than in prescribed circumstances and results in benefits under the scheme being reduced, or contributions by employees being increased; or

(ii)any winding-up, in whole or in part, of the scheme;

(b)that no person entitled to protection in relation to a scheme to which this paragraph applies is prevented from continuing to participate in or acquire pension rights under the scheme by reason of any change of employer which does not affect his continuity of employment; and

(c)that no person entitled to protection in relation to a scheme to which this paragraph applies is prevented (in a case not falling within paragraph (b) above) from continuing to participate in or acquire pension rights under the scheme by reason of his having entered the employment of an employer who—

(i)opts to allow that person to continue, in respect of his employment with that employer, as a participant in that scheme; and

(ii)is able to exercise that option without the scheme ceasing to be approved for the purposes of the relevant enactments.

(3)Regulations under this paragraph may make provision for securing that a person entitled to protection in relation to a scheme to which this paragraph applies who—

(a)ceases, by reason of any change in the duties of his employment with the same employer, to be eligible to participate in that scheme, but

(b)by reason of the change becomes a person who satisfies, by reference to his new duties, a condition of eligibility for participation in another such scheme,

is afforded the equivalent protection with respect to his participation in the other scheme as was previously secured, by virtue of this paragraph, with respect to his continuing participation in the scheme for which he has ceased to be eligible.

(4)Regulations under this paragraph may make provision for securing that individuals with pension rights under a scheme to which this paragraph applies are allowed to become participants in another such scheme or to renew their participation in the same scheme where, in prescribed cases, they enter the employment of a person any of whose employees are already, in respect of their employment with that person, participants in the other scheme or, as the case may be, in the scheme under which those rights subsist.

(5)Regulations under this paragraph may—

(a)impose duties (whether as to the provision or amendment of any scheme to which this paragraph applies, the purchase of annuities, the making of payments or otherwise) on—

(i)any person who has been or is for the time being the employer of a person entitled to protection in relation to any such scheme; and

(ii)any persons by whom such an employer is or has been wholly owned;

and

(b)provide for the duties imposed by the regulations on any person to be owed to such persons as may be prescribed, including persons other than the persons who are or have been employed by that person or, as the case may be, by a company wholly owned by him.

(6)The following persons shall be entitled to protection in relation to any scheme to which this paragraph applies, except in so far as they cease to be so entitled under any of sub-paragraphs (7) to (9) below, that is to say—

(a)every person who—

(i)has exercised an option conferred by virtue of paragraph 3(2) above to become a participant in the scheme in respect of his employment; or

(ii)is or has been a participant in the scheme in pursuance of any regulations made under this paragraph for the purpose of preserving the entitlement of that person to protection in relation to any other scheme to which this paragraph applies;

and

(b)every person who has pension rights under the scheme in consequence of the death of a person falling within paragraph (a) above;

but a person shall not be entitled to protection by virtue of paragraph (b) above except as respects the pension rights in respect of which he falls within that paragraph.

(7)A person entitled to protection in relation to a scheme to which this paragraph applies may elect, in such manner as may be prescribed, that he is to cease to be entitled to that protection.

(8)Subject to sub-paragraph (9) below, if—

(a)any person entitled by virtue of sub-paragraph (6)(a) above to protection in relation to any scheme to which this paragraph applies ceases to be in continuous employment or voluntarily withdraws from that scheme, and

(b)the circumstances of that cesser or withdrawal are not such as may be prescribed,

that person shall cease to be entitled to that protection except as respects pension rights which have accrued to him before the time when he so ceases or withdraws.

(9)If any person entitled by virtue of sub-paragraph (6)(a) above to protection in relation to any scheme to which this paragraph applies continues to be a participant in that scheme after such a change of employment as brings the case within sub-paragraph (2)(c) above, that person shall cease to be entitled to that protection except as respects pension rights which have accrued to him before that change.

(10)The reference in sub-paragraph (2) above to being placed in any worse position shall be construed, in relation to a person entitled to protection by virtue of sub-paragraph (6)(a) above who ceases, after the exercise of the option made available to him in pursuance of paragraph 3(2) above, to participate in or acquire pension rights under any scheme, as a reference to being placed in a position which is worse than his position immediately before he so ceases.

(11)[F39Chapter I of Part XIV of the Employment Rights Act 1996, except section 218(6),], shall apply for the purposes of this paragraph as if this paragraph were contained in that Act.

(12)Regulations under this paragraph may provide that no account shall be taken for the purposes of this paragraph of any person’s ceasing to be in continuous employment for such periods and in such circumstances as may be prescribed.

(13)For the purposes of this paragraph a company is wholly owned by any person if its members do not include any person other than—

(a)that person himself;

(b)companies wholly owned by that person; and

(c)persons acting on behalf of that person or a company wholly owned by that person.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F39Words in Sch. 5 para. 4(11) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 64.

General provisionsE+W+S

5(1)Every power of the Secretary of State to make regulations under this Schedule shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.E+W+S

(2)Any power of the Secretary of State to make provision by regulations under this Schedule shall include power—

(a)to make different provision for different cases or different purposes; and

(b)to make such supplemental, incidental, consequential and transitional provision as the Secretary of State considers appropriate in relation to the provision contained in any such regulations.

(3)The power conferred by sub-paragraph (2) above shall include—

(a)power, for the purpose of giving effect to any option afforded by virtue of this Schedule, to provide for the modification of the contracts of employment of persons who become participants in a scheme established in pursuance of any such regulations; and

(b)power to require any dispute arising under or in relation to any regulations under this Schedule to be referred to such arbitration as may be prescribed.

(4)Regulations under this Schedule may be made so as to have effect from a date prior to their making; but, in making any provision so to have effect, regulations under this Schedule shall not place any person other than—

(a)the Secretary of State,

(b)the Authority,

(c)the Corporation or a wholly-owned subsidiary of the Corporation, or

(d)a company wholly owned by the Crown,

in a worse position than he or it would have been in if the regulations had been made so as to have effect only from the date of their making.

(5)Where any modification by virtue of this Schedule of any existing scheme confers any powers on the Secretary of State, those powers shall be treated as conferred for purposes that include securing that trustees and other persons concerned in the administration of the scheme exercise and perform their powers and duties in such manner as appears to the Secretary of State to take account, to the extent that he thinks appropriate, of the desirability—

(a)of preventing the Secretary of State from incurring any liability under arrangements entered into as mentioned in paragraph 2(9) above;

(b)of keeping to a minimum the amount of any liability that is incurred under any such arrangements; and

(c)of managing the scheme so as to produce the largest practicable surpluses at the times as at which determinations of any relevant surpluses (within the meaning of paragraph 2 above) fall to be made.

(6)Nothing in any enactment or rule of law shall prevent the Corporation, the trustees of any existing scheme, or any other person concerned in the administration of any such scheme, from giving the Secretary of State or such other person as may be prescribed all such advice or assistance as he may reasonably require for the purposes of making any determination, apportionment, allocation or transfer, or giving or issuing any direction or certificate, for which provision is made by or under this Schedule.

Prospective

Section 43.

SCHEDULE 6E+W+S Further modifications of the 1991 Act

1(1)Where—E+W+S

(a)a damage notice is received by a person with responsibility for subsidence affecting any land, and

(b)that person is neither the Authority nor the person who is or would be the responsible person in relation to the damage with respect to which the notice is given,

the person who has received the notice shall, as soon as reasonably practicable after receiving it, forward the notice to the Authority.

(2)Where—

(a)a damage notice is received by the Authority (whether as a result of being forwarded under sub-paragraph (1) above or otherwise), and

(b)the Authority is not itself the person who is or would be the responsible person in relation to the damage with respect to which the notice is given,

the Authority shall, as soon as reasonably practicable after receiving it, forward the notice to the person appearing to the Authority to be the person who is or would be the responsible person in relation to that damage.

(3)The person to whom a notice is forwarded under this paragraph shall be deemed for the purposes of the 1991 Act—

(a)to have been given that notice by the person whose notice it is; and

(b)to have received the notice within the period allowed by section 3 of the 1991 Act if it was or is deemed to have been so received by the person who forwarded it.

(4)In this paragraph “damage notice” has the same meaning as in the 1991 Act.

2Section 8(9) of the 1991 Act (grounds for refusing request for purposes connected with the execution of works by another) shall have effect in relation to times on and after the restructuring date with the substitution for the reference to a remedial obligation of the Corporation in respect of any one or more neighbouring properties of a reference to the remedial obligation, in respect of any one or more such properties, of the responsible person or of any other person with responsibility for subsidence affecting land.E+W+S

3(1)In relation to times on or after the restructuring date, sections 10(2)(c), 16(1)(b) and (7)(a), 17(1)(a) and 33(1) of the 1991 Act (which make provision where certain matters appear to the Corporation) shall have effect, in each case, with the omission of the words “to the Corporation”.E+W+S

(2)Accordingly, section 16 of that Act shall have effect in relation to such times—

(a)with the substitution, in subsection (1), for “it appears to them as mentioned in paragraph (b) above” of “ the condition mentioned in paragraph (b) above is satisfied ”; and

(b)with the omission, in subsection (7)(b), of the words “to them”, wherever occurring.

4The reference in section 15 of the 1991 Act (recipients of depreciation payments) to another person who is liable to make good any damage shall not, in relation to any responsible person, include any person who is liable to make good that damage by virtue only of being jointly and severally liable with the responsible person in accordance with section 44(1) of this Act.E+W+S

5In relation to any regulations made on or after the restructuring date sections 25(1) and 29(1) of the 1991 Act shall each have effect with the substitution for the first reference to the Corporation (consultation as to regulations) of a reference to such persons with responsibility for subsidence affecting land as it appears to the Secretary of State to be appropriate to consult.E+W+S

6Section 43(1) of this Act shall require the second reference to the Corporation in section 29(1) of the 1991 Act and the references to the Corporation in sections 33(2) to (6) and 36 of that Act to be construed, in relation to subsidence damage of which there is a possibility or which appears likely to occur or might occur, as references to the person who would be the responsible person in relation to that damage if it did occur.E+W+S

7On and after the restructuring date sections 37, 38, 40 to 42 and 44(1) of the 1991 Act (which make general provision with respect to claims) shall have effect with the substitution for references to the Corporation, or to any of its licensees, of references to any person with responsibility for subsidence affecting any land.E+W+S

8On and after the restructuring date sections 46 and 47 of the 1991 Act (which require the giving of notice of certain operations) shall have effect in relation to any underground coal-mining operations as a result of which any land may be affected by subsidence—E+W+S

(a)with the substitution for references to the Corporation of references to the person who would be the responsible person in relation to any subsidence damage to that land if such damage were to result from the operations; and

(b)as if anything done by the Corporation under that section before the restructuring date had been done by that person.

9The provisions of section 44 of this Act, so far as they relate to obligations, liabilities or rights of responsible persons, shall also apply as respects obligations, liabilities or rights by virtue of paragraph 6 or 8 above of persons who would be responsible persons if subsidence damage occurred; and, for that purpose, references in that section to subsidence damage shall be construed accordingly.E+W+S

10On and after the restructuring date, section 49 of the 1991 Act (which makes provision with respect to the making of reports by the Corporation) shall have effect with the substitution for references to the Corporation of references to the Authority; and, accordingly, any requirement imposed by that section on the Corporation shall have effect on and after that date as if imposed on the Authority.E+W+S

11Paragraph 1(1) of Schedule 2 to the 1991 Act (payment of depreciation where Corporation satisfied that the relevant interest was subject to a mortgage) shall have effect in relation to payments falling to be made on or after the restructuring date with the omission of the words “the Corporation are satisfied that”.E+W+S

12Section 43(1) of this Act shall not apply to the references to the Corporation in Schedule 7 to that Act (transitional provisions) so far as they have effect in relation to times before the restructuring date.E+W+S

Prospective

Section 49.

SCHEDULE 7E+W Retained Interests in Copyhold Land

Part IE+W Claims in respect of Retained Interests

Application of Part IE+W

1(1)This Part of this Schedule shall apply where, at any time on or after the restructuring date, a notice of a retained interest is given by any person in pursuance of an invitation contained by virtue of—E+W

(a)subsection (3)(d) of section 50 of this Act, or

(b)subsection (3)(b) of section 3 of the 1975 Act,

in a notice for the purposes of section 49 of this Act or, as the case may be, in a notice under that section 3.

(2)In this Part of this Schedule—

(a)a notice of a retained interest in pursuance of such an invitation as is mentioned in sub-paragraph (1) above is referred to as a “retained interest notice”; and

(b)the person who gives such a notice is referred to, in relation to that notice, as “the claimant”.

(3)Where any of the Corporation’s rights under section 49 of this Act in relation to any land have been transferred in accordance with a restructuring scheme to any other person—

(a)the persons to whom a retained interest notice relating to that land may be given for the purposes of this Schedule shall be the Corporation, the Authority or that other person; and

(b)a retained interest notice given to the Corporation or the Authority shall be—

(i)forwarded by the Corporation or Authority, as soon as reasonably practicable after being received, to that other person; and

(ii)treated for the purposes of this Schedule as if given to that other person when it was given to the Corporation or Authority.

Form of claimE+W

2The claimant shall furnish, together with the retained interest notice, adequate proof of his title to the interest at the time when he gives the notice.E+W

Acceptance or rejection of claimE+W

3(1)Within the period of three months beginning with the date on which the person to whom it is given receives a retained interest notice, or within such longer period as may be agreed between that person and the claimant, that person shall serve on the claimant either—E+W

(a)a notice in the prescribed form accepting the claimant’s title to the retained interest and acknowledging that an obligation under this Part of this Schedule to pay compensation in respect of it has arisen or, as the case may be, will arise if the right in question is exercised; or

(b)a notice rejecting the claimant’s retained interest notice.

(2)In this Part of this Schedule—

(a)a notice under sub-paragraph (1)(a) above is referred to as an “acceptance notice”;

(b)a notice under sub-paragraph (1)(b) above is referred to as a “rejection notice”; and

(c)a reference, in relation to an acceptance notice, to the accepted interest is a reference to the interest to which that notice relates.

(3)Where a person serves an acceptance notice or a rejection notice, he shall at the same time send a copy of that notice to the Authority.

(4)A person who fails to comply with any of the requirements of this paragraph as to the service of notices, or as to the sending of a copy of any notice to the Authority, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(5)A rejection notice shall specify the ground or grounds on which the claimant’s retained interest notice is rejected and, where the matters specified concern only a part of the land to which the retained interest notice relates, shall identify the part in question.

(6)Subject to paragraph 5 below, where, after the receipt by any person of a retained interest notice, an acceptance notice is served in respect of the retained interest concerned, the service of that acceptance notice shall be a valid ground for the service of a rejection notice in respect of any other retained interest notice which—

(a)is received by any person after the service of that acceptance notice; and

(b)relates to any of the land in which the accepted interest subsists.

(7)In sub-paragraph (1) above “prescribed” means prescribed by regulations made by the Secretary of State by statutory instrument; and a statutory instrument containing regulations under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Payment of costs of establishing claimE+W

4Subject to paragraph 5 below, as soon as practicable after any person has served an acceptance notice on a claimant, that person shall pay to the claimant any reasonable legal expenses incurred by the claimant for the purposes of—E+W

(a)establishing his ownership of the retained interest to which the acceptance notice relates; and

(b)giving the retained interest notice by virtue of which the acceptance notice came to be served.

Challenge of rejection noticeE+W

5(1)A claimant who—E+W

(a)has served a retained interest notice relating to any land (“the relevant land”), and

(b)is aggrieved by the service on him of a rejection notice relating to his retained interest notice, other than a rejection notice served in pursuance of an order under this paragraph,

may, within the period of three months beginning with the date of service of the rejection notice, make an application to the county court for an order directing the withdrawal of the rejection notice and the service of an acceptance notice in respect of the retained interest which he claims.

(2)On an application under this paragraph, the court may direct that, in addition to the applicant and the person who served the rejection notice, the Authority and any person other than the claimant who has given a retained interest notice relating to the whole or any part of the relevant land shall be made a party to the application unless, in the case of a person other than the claimant who has given a retained interest notice—

(a)a rejection notice has already been served in respect of that retained interest notice; and

(b)the time within which that person might have made an application under this paragraph in respect of that rejection notice has expired without such an application having been made.

(3)On an application under this paragraph the court shall determine whether—

(a)the applicant,

(b)any other party to the application who contests the applicant’s claim, or

(c)any other person (whether a party to the application or not) on whom an acceptance notice relating to the whole or any part of the relevant land has been served,

was, at the time when he gave his retained interest notice, entitled to a retained interest in the whole or any part of the relevant land and shall order the service (if it has not already been done) of an acceptance notice on that person or, if more than one of them were so entitled to a retained interest in the same piece of land, on that one of them whose retained interest notice was given first.

(4)An order under sub-paragraph (3) above may contain such provisions as the court considers appropriate—

(a)for securing that every party to the application other than—

(i)the person to whom the retained interest notice in question was given, and

(ii)any person on whom an acceptance notice has been, or is ordered to be, served,

is or has been served with a rejection notice; and

(b)where it appears to the court that an acceptance notice has been served which should not have been served, for securing—

(i)that the notice is cancelled; and

(ii)that the person who served the notice brings the cancellation to the attention of the person who, if the notice had not been cancelled, would have been the person with an actual or contingent entitlement to compensation under this Part of this Schedule in respect of the accepted interest.

(5)If, in accordance with sub-paragraph (4) above, the court orders the cancellation of an acceptance notice, it shall be conclusively presumed for the purposes of sections 49 and 50 of this Act, and for the purposes of this Schedule, except this paragraph—

(a)that the person on whom the acceptance notice was served did not have a retained interest in the relevant land at the time when he served his retained interest notice; and

(b)that a rejection notice was served in respect of that retained interest notice.

(6)Nothing in paragraph 4 above shall affect the power of the court on an application under this paragraph (or in any subsequent proceedings) to make such order as to costs as it thinks fit; and any such order may make such modifications, if any, of a person’s obligation under paragraph 4 above as appear to the court to be just in the light of the other provisions as to costs which are contained in the order.

CompensationE+W

6(1)Subject to paragraphs 7 and 11 below, where—E+W

(a)any person has begun to exercise any right which is a right of his under section 49(1) of this Act,

(b)that right is a right in relation to any coal or coal mine comprised in or lying under any land in which a retained interest subsists, and

(c)a right to compensation has not arisen under this sub-paragraph in respect of the exercise of the right by a person whose right it was previously,

the person who has begun to exercise the right shall pay compensation in respect of that interest.

(2)Compensation under sub-paragraph (1) above shall be calculated by reference to the consideration which, on the date on which the exercise of the right referred to in sub-paragraph (1) above began, would have been appropriate, as between a willing grantor and a willing grantee, on a conveyance of that interest (so far as it subsists in the land subject to the right) to the person who exercises that right.

(3)Where a person who has become liable for any compensation under this paragraph ceases to be a person who is entitled to exercise the right in question, his so ceasing shall affect neither his liability nor the amount of the compensation.

(4)Where compensation is due to any person under sub-paragraph (1) above there shall be paid to him, in addition to the compensation, any reasonable valuation expenses incurred by him for the purpose of ascertaining the value, at the date referred to in sub-paragraph (2) above, of the retained interest to which the compensation relates.

(5)Any dispute as to the amount of any compensation under this paragraph, or as to the amount of any valuation expenses to be paid in accordance with sub-paragraph (4) above, shall be determined by the Lands Tribunal.

(6)Sub-paragraph (3) above shall be subject to so much of any restructuring scheme as makes provision for the transfer to any other person, as from the restructuring date or any subsequent date, of the Corporation’s liabilities by virtue of this paragraph; and sub-paragraph (4) above shall be without prejudice to the powers of the Lands Tribunal, by virtue of sub-paragraph (5) above, in respect of the costs of proceedings before the Tribunal.

(7)References in this Part of this Schedule, in relation to any right under subsection (1) of section 49 of this Act, to a person with a contingent entitlement to compensation under this Part of this Schedule are references to any person who (subject to paragraph 7(3) below) would be entitled to any such compensation if the person with that right began to exercise it.

Persons entitled to compensationE+W

7(1)Subject to paragraph 5 above, it shall be conclusively presumed that a person on whom a rejection notice has been served has neither an actual nor, as the case may be, a contingent entitlement to compensation under this Part of this Schedule in respect of the interest to which the notice relates.E+W

(2)The person having the right to receive compensation under this Schedule in respect of a retained interest to which an acceptance notice relates shall be the person on whom that notice was served, notwithstanding that he may not own the retained interest at the time when the compensation becomes due; and, accordingly, that right shall devolve on his death and may be assigned in like manner as the right of a creditor under an unsecured debt.

(3)Notwithstanding anything in sub-paragraph (2) above if, at the time when compensation becomes due in respect of a retained interest, any compensation is paid in good faith to the person who produces the acceptance notice relating to that interest, the surrender of that notice by way of receipt for the compensation shall constitute an adequate discharge to the person paying the compensation of his liability to pay that compensation, without any further proof that the person producing the acceptance notice is entitled in accordance with this Part of this Schedule to receive the compensation.

Agreements with respect to compensationE+W

8(1)If at any time—E+W

(a)after an acceptance notice has been served in respect of a retained interest, and

(b)before the date on which compensation becomes due in respect of that interest,

any person (“the relevant person”) enters into an agreement in that behalf with another person, being the person with the contingent entitlement to any such compensation, then, on payment to that other person of such consideration as may be agreed, the relevant person shall be relieved of any contingent liability under this Part of this Schedule in respect of that retained interest.

(2)Where any such agreement as is mentioned in sub-paragraph (1) above is entered into, sub-paragraph (3) of paragraph 7 above shall apply in relation to the payment of the consideration agreed as it applies in relation to a payment of compensation at the time referred to in that sub-paragraph (3).

(3)Without prejudice to sub-paragraphs (1) and (2) above, at any time after an acceptance notice has been served in respect of a retained interest, the person who served it shall cease to be entitled to acquire by agreement that interest or any other retained interest in any coal or coal mine comprised in or lying under any of the land in which the accepted interest subsists.

Notice of compensationE+W

9(1)Where any person—E+W

(a)makes a payment of compensation under this Part of this Schedule, or

(b)enters into any agreement for the purposes of paragraph 8 above,

he shall, as soon as reasonably practicable after making the payment or entering into the agreement, send particulars of the payment or agreement to the Authority.

(2)The particulars to be sent to the Authority in pursuance of sub-paragraph (1) above shall include particulars identifying—

(a)the person to whom the payment is made or, as the case may be, the parties to the agreement;and

(b)the interest in respect of which the payment is made or, as the case may be, in respect of which the contingent liability extinguished by the agreement arose.

(3)A person who fails to comply with any of the requirements of this paragraph as to the sending of any particulars to the Authority shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

Part IIE+W Other Provisions

Saving for rights to dispose of retained interestsE+W

10Subject to paragraph 8(3) above and to any provision applied by paragraph 12 below, neither—E+W

(a)the publication on or after the restructuring date of any notice for the purposes of section 49 of this Act, nor

(b)any publication before that date of a notice under section 3 of the 1975 Act,

shall prevent any person from acquiring by agreement any retained interest in any coal or coal mine comprised in or lying under land in the area to which the notice relates.

Pre-1975 Act orders under the Mines (Working Facilities and Support) Act 1966E+W

11(1)If—E+W

(a)by virtue of an order under section 1 of the M117Mines (Working Facilities and Support) Act 1966 or of any agreement, the Corporation was entitled on 31st August 1975 to work any coal or to use any coal mine in which a retained interest subsisted at that time,

(b)that entitlement has continued throughout the period since that date as an entitlement of the Corporation or, at different times, of the Corporation and a person to whom the Corporation’s rights have been transferred in accordance with a restructuring scheme, and

(c)the Corporation or such a person is still so entitled,

then section 49 of this Act shall not apply with respect to that coal or coal mine or to any retained interest therein except in relation to matters unconnected with the exercise of that entitlement.

(2)Where—

(a)a notice given on or after the restructuring date for the purposes of section 49 of this Act specifies any area, and

(b)at the time when the notice was published, the conditions mentioned in sub-paragraph (1) above were satisfied in relation to any coal or coal mine comprised in, or lying under, land in that area,

so much of that land as consists of that coal or coal mine shall be deemed to be excluded from that area.

(3)If notice of a retained interest is given in pursuance of a relevant invitation at a time when the conditions mentioned in sub-paragraph (1) above were satisfied in relation to any coal or coal mine comprised in or lying under the land in which that interest subsists, then for the purpose of determining the amount of any compensation under this Schedule, that interest, so far as it relates to that coal or mine, shall be treated as no longer subsisting.

(4)In sub-paragraph (3) above “a relevant invitation” means an invitation contained by virtue of—

(a)subsection (3)(d) of section 50 of this Act, or

(b)subsection (3)(b) of section 3 of the 1975 Act,

in a notice for the purposes of section 49 of this Act or, as the case may be, in a notice under section 3 of that Act.

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Marginal Citations

Transitional provisionsE+W

12(1)On and after the restructuring date, the following provisions (which broadly correspond to the provisions of Part I of this Schedule), that is to say—E+W

(a)subsections (4) to (6) and (8)(b) of section 3 of the 1975 Act, and

(b)Schedule 2 to that Act, other than paragraph 10,

shall have effect, notwithstanding their repeal by this Act and instead of Part I of this Schedule, in relation to any case where a notice of a retained interest was given before the restructuring date in pursuance of an invitation contained, by virtue of subsection (3)(b) of that section, in any notice under that section.

(2)On and after the restructuring date, subsection (8)(a) of section 3 of the 1975 Act (which makes provision equivalent to sub-paragraph (2) of paragraph 11 above) shall have effect, notwithstanding its repeal by this Act and instead of that sub-paragraph, for the purpose of determining the area to which any notice under that section relates.

(3)Sub-paragraph (1) above shall be subject to so much of any restructuring scheme as makes provision for the transfer to any other person, as from the restructuring date or any subsequent date, of the Corporation’s rights and liabilities by virtue of the provisions having effect in accordance with that sub-paragraph.

Prospective

Section 52.

SCHEDULE 8E+W+S Amendments of the Opencast Coal Act 1958

IntroductionE+W+S

1The M118Opencast Coal Act 1958 shall be amended as follows.E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Power to make compulsory rights ordersE+W+S

2(1)In subsection (1) of section 4 (compulsory rights order)—E+W+S

(a)for the words “the Corporation”, in each place where they occur, there shall be substituted “ the Coal Authority ”;

(b)for the words “compulsorily acquire” there shall be substituted “ confer ”; and

(c)for the words “the whole or part of any land on which they desire” there shall be substituted “ the whole, or such part as (subject to the confirmation of the Secretary of State) the Coal Authority thinks fit, of any land on which the applicant for the order desires ”.

(2)After that subsection there shall be inserted the following subsections—

(1A)The Coal Authority shall not make a compulsory rights order except on the application of a person who satisfies that Authority—

(a)that he is either a licensed operator within the meaning of the Coal Industry Act 1994 or a person whose application to that Authority for a licence under Part II of that Act is pending; and

(b)that he has served notice in the prescribed form of the application for the order on every person who is known to him to be a person who would, in relation to the order applied for, be directly concerned.

(1B)Subject to the provisions of section 5 of this Act, the rights conferred by an order made on such an application as is mentioned in subsection (1A) of this section shall be conferred on the applicant and his successors so as to be exercisable for the purposes only of—

(a)operations which the applicant or, as the case may be, any such successor is authorised to carry out by virtue of being a licensed operator within the meaning of the Coal Industry Act 1994; and

(b)operations which are incidental to operations falling within paragraph (a) above (including operations carried out at times when the authorisation for the operations falling within that paragraph is not in force).

(3)In subsection (5) of that section (which has effect in relation to Scotland for applying enactments relating to compulsory purchase and giving effect to Part I of Schedule 2 to the Act), after the first “to the” there shall be inserted “ Scottish ”; and subsection (8) of that section shall cease to have effect.

Effect of ordersE+W+S

3(1)In subsection (2) of section 5 (effect of order), for “The Corporation” there shall be substituted “ The person on whose application the order has been made ”.E+W+S

(2)In subsections (4) and (5) of that section—

(a)for the words “the Corporation”, in the first place where they occur in each subsection, there shall be substituted “ the person entitled to the rights conferred by the order ”; and

(b)for the words “the Corporation”, in the second and third places where they occur in each subsection, there shall be substituted “ that person ”.

(3)After subsection (5) of that section there shall be inserted the following subsections—

(5A)Subject to subsection (5B) of this section, the rights conferred by a compulsory rights order—

(a)shall be exercisable by a successor of the original applicant for the order only where the Coal Authority has transferred to that successor the entitlement to exercise the rights conferred by the order; but

(b)where the Coal Authority has so transferred them, shall not, at any time after the transfer, be exercisable by any person in his capacity as the original applicant or as a previous successor of that applicant;

and references in this Act to the person entitled to the rights conferred by a compulsory rights order are references to the person who is for the time being the person by whom those rights are exercisable in accordance with section 4(1B) of this Act and this section.

(5B)Where at any time after an application for a compulsory rights order has been made and before any order made on that application is confirmed—

(a)any person becomes the successor of the original applicant for the order and notifies that fact—

(i)if no order has been made on the application, to the Coal Authority, or

(ii)if such an order has been made, to the Secretary of State,

and

(b)the Authority or, as the case may be, the Secretary of State decides to proceed in relation to the application or order in accordance with this subsection,

the provisions of this Act and of any enactment applied by this Act shall have effect as if the application had been made by that person, as if he had the same right to make it as the original applicant and as if anything done for the purposes of the application by or in relation to the original applicant or a previous successor had been done by or in relation to that person.

(5C)The Coal Authority or, as the case may be, the Secretary of State—

(a)shall make a transfer under subsection (5A) of this section by giving written notice of the transfer to each of the persons who, in consequence of the transfer, is to cease to be, or is to become, entitled to the rights conferred by the order;

(b)may by notice to the successor make any modifications of a compulsory rights order which are necessary in consequence only of the making of a transfer under subsection (5A) of this section; and

(c)may make a decision to proceed in accordance with subsection (5B) of this section subject to compliance by the successor giving the notification with such conditions as that Authority or the Secretary of State thinks fit.

Limitations on effect of ordersE+W+S

4In section 7 (rights not affected by order)—E+W+S

(a)in subsection (2)(c)—

(i)for “authorisation” there shall be substituted “ opencast planning permission ”;

(ii)for “the Corporation have” there shall be substituted “ the person entitled to the rights conferred by the compulsory rights order has ”; and

(iii)for the words from “under” to “applied” there shall be substituted “ under the provisions of the Act of 1990, applied ”;

(b)in subsection (3)(a)—

(i)for “made by the Corporation and” there shall be substituted “ to which the person entitled to the rights conferred by the compulsory rights order is or is deemed to be a party and which is ”; and

(ii)for “the Corporation are” there shall be substituted “ that person is ”;

and

(c)for subsections (8) and (9) of that section there shall be substituted—

(8)In this section—

  • statutory water undertakers” means—

    (i)

    in England and Wales, the National Rivers Authority, a water undertaker or a sewerage undertaker; and

    (ii)

    in Scotland, a water authority within the meaning of the Water (Scotland) Act 1980;

  • local enactment”—

    (i)

    in England and Wales, means any local statutory provision within the meaning of the Water Industry Act 1991; and

    (ii)

    in Scotland, has the same meaning as in the Water (Scotland) Act 1980;

and, in the application of this section to Scotland, for any reference to the Act of 1990 there shall be substituted a reference to the Town and Country Planning (Scotland) Act 1972.

Limited compulsory rights ordersE+W+S

5In subsection (3)(b) of section 8 (modification of section 5(4))—E+W+S

(a)for the words “the Corporation”, in the first and second places where they occur, there shall be substituted “ the person entitled to the rights conferred by the order ”; and

(b)for the words “the Corporation”, in the third place where they occur, there shall be substituted “ that person ”.

Provisions as to other minerals, timber, crops, etc.E+W+S

6In subsections (1) to (3) of section 10 (rights in relation to other minerals, timber, crops, etc.)E+W+S

(a)for the words “the Corporation”, in the first and last places where they occur in each subsection, there shall be substituted “ the person entitled to the rights conferred by the order ”; and

(b)for the words “the Corporation”, wherever else they occur in each subsection, there shall be substituted “ that person ”.

Registration of orders in ScotlandE+W+S

7In section 11(4) (registration in the register of sasines)—E+W+S

(a)for the words “the Corporation”, in the first place where they occur, there shall be substituted “ the person on whose application it was made ”; and

(b)for the words “the Corporation”, in the second place where they occur, there shall be substituted “ the person entitled immediately before it ceases to have effect to the rights conferred by the order ”.

Removal of chattels from landE+W+S

8(1)In subsection (1) of section 12 (rights to remove chattels from land affected by compulsory rights order), for “the Corporation” there shall be substituted “ the person entitled to the rights conferred by the order ”.E+W+S

(2)In subsection (2) of that section, for “the Corporation” there shall be substituted “ the person who served the notice ”.

(3)After that subsection there shall be inserted the following subsection—

(2A)Where the person who has served a notice under subsection (1) of this section ceases, without exercising any power under subsection (2) of this section, to be the person entitled to the rights under the compulsory rights order, that notice shall cease to have effect for the purposes of this section.

(4)In subsection (3) of that section—

(a)for “the Corporation cause” there shall be substituted “ any person causes ”;

(b)for “the last preceding subsection” there shall be substituted “ subsection (2) of this section ”;

(c)for the words “the Corporation”, in the second and third places where they occur, there shall be substituted “ that person ”; and

(d)for the words “the Corporation”, in the fourth place where they occur, there shall be substituted “ the person who caused the chattel to be removed ”.

(5)In subsection (4) of that section, for the words “the Corporation”, in each place where they occur, there shall be substituted “ the person who makes the sale ”.

Apparatus of statutory undertakersE+W+S

9Section 13 (effect in relation to apparatus of statutory undertakers of opencast planning permission) shall cease to have effect.E+W+S

Agricultural tenancies in England and WalesE+W+S

10In section 14(6) (arbitration under section 12 of the M119Agricultural Holdings Act 1986 in cases where opencast planning permission has been granted)—E+W+S

(a)for “the Corporation are” there shall be substituted “ the person with the benefit of the opencast planning permission is ”; and

(b)for the words “the Corporation”, in the second place where they occur, there shall be substituted “ that person ”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Agricultural tenancies in ScotlandE+W+S