Housing and Regeneration Act 2008

Part 2 Powers to extinguish public rights of way

Powers of Secretary of State to extinguish public rights of way by order

3 The Secretary of State may by order extinguish any public right of way over land of the HCA if the Secretary of State is satisfied that—

(a) an alternative right of way has been, or will be, provided, or

(b) the provision of an alternative right of way is not required.

Notification of proposal to make order

4 (1) This paragraph applies if the Secretary of State is proposing to make an order under paragraph 3.

(2) The Secretary of State must—

(a) publish a notice stating—

(i) the effect of the order,

(ii) the time (not less than 28 days starting with the date of publication of the notice) within which objections to the proposal may be made, and

(iii) the manner in which objections to the proposal may be made, and

(b) serve a copy of the notice on—

(i) the local planning authority in whose area the land is situated, and

(ii) the relevant highway authority.

(3) In sub-paragraph (2) “the relevant highway authority” means any authority which is a highway authority in relation to the right of way which is proposed to be extinguished by the order.

(4) Publication under sub-paragraph (2) must be in such manner as the Secretary of State considers appropriate.

Duty to consider objections

5 (1) The Secretary of State must proceed under paragraph 6 if—

(a) an objection to a proposal to make an order is properly made and not withdrawn, and

(b) the matter is not otherwise dealt with.

(2) For the purposes of sub-paragraph (1) an objection is properly made if (and only if)—

(a) it is made—

(i) within the time, and

(ii) in the manner,

stated in the notice under paragraph 4, and

(b) a written statement of the grounds of the objection is comprised in, or submitted with, the objection.

(3) For the purposes of sub-paragraph (1) the matter is otherwise dealt with if (and only if) the Secretary of State—

(a) decides, irrespective of the objection, not to make the order, or

(b) decides to make a modification to the proposal which is agreed to by the objector as meeting the objection.

6 (1) The Secretary of State must, before making a final decision, consider the grounds of the objection as set out in the statement comprised in, or submitted with, the objection.

(2) The Secretary of State may require the objector to submit within a particular period a further written statement as to any of the matters to which the objection relates.

Duty to give opportunity to appear

7 (1) The Secretary of State must, before making a final decision, give the objector an opportunity to appear before, and be heard by, a person appointed for the purpose by the Secretary of State.

(2) Sub-paragraph (3) applies if the objector takes advantage of this opportunity.

(3) The Secretary of State must give an opportunity of appearing and being heard on the same occasion as the objector to—

(a) the HCA, and

(b) any other persons whom the Secretary of State considers ought to be given the opportunity.

(4) Sub-paragraphs (1) to (3) do not apply so far as the Secretary of State has the power to proceed under paragraph 8 or 9.

Power to treat objection as irrelevant

8 The Secretary of State may treat the objection as irrelevant for the purpose of making a final decision—

(a) if the Secretary of State has considered the grounds of the objection as set out in the original statement and in any further statement, and

(b) so far as the Secretary of State is satisfied that the objection relates to a matter which can be dealt with in the assessment of compensation.

Power to curtail decision-making process

9 The Secretary of State may make a final decision without further investigation as to the matters to which the objection relates if—

(a) the Secretary of State—

(i) has considered the grounds of the objection as set out in the original statement and in any further statement, and

(ii) is satisfied that, for the purpose of making a final decision, sufficient information is available as to the matters to which the objection relates, or

(b) a further statement has been required under paragraph 6(2) but is not submitted within the required period.

Power to hold public local inquiry

10 (1) The Secretary of State must cause a public local inquiry to be held in relation to an objection to a proposal to make an order under paragraph 3 if the Secretary of State considers that the matters to which the objection relates are such as to require investigation by such an inquiry before the Secretary of State makes a final decision.

(2) The duty in sub-paragraph (1) is effective despite any other provisions of paragraphs 4 to 9.

(3) The other provisions of those paragraphs are to be ignored if no effect has been given to them when the Secretary of State decides to cause an inquiry to be held.

Orders relating to electronic communications apparatus: removal or abandonment of apparatus

11 Paragraphs 12 and 13 apply if—

(a) an order under paragraph 3 extinguishing a public right of way is made, and

(b) at the time of the publication of the notice required by paragraph 4 any electronic communications apparatus was kept installed for the purposes of an electronic communications code network under, in, on, over, along or across the land over which the right of way subsisted.

12 (1) The power of the operator of the network to remove the apparatus is exercisable, despite the order, at any time not later than the end of the period of 3 months beginning with the day on which the right of way is extinguished.

(2) The power of the operator of the network to remove the whole or any part of the apparatus is exercisable after the end of that period if, before the end of the period, the operator has served notice on the HCA of the operator’s intention to remove the apparatus or (as the case may be) part.

13 (1) The operator of the network may abandon the electronic communications apparatus, or any part of it, by serving notice to that effect on the HCA not later than the end of the period of 3 months beginning with the day on which the right of way is extinguished.

(2) In the absence of such a notice, the operator of the network is to be treated at the end of the period of 3 months as having abandoned any part of the apparatus which, at that time, the operator has neither—

(a) removed, nor

(b) served notice of intention to remove.

14 (1) The operator of the network may recover from the HCA the expense of providing any substitute electronic communications apparatus in such other place as the operator may require.

(2) In sub-paragraph (1) “substitute electronic communications apparatus” means electronic communications apparatus in substitution for—

(a) the electronic communications apparatus removed or abandoned, and

(b) any other electronic communications apparatus connected with the removed or abandoned apparatus which is made useless in consequence of the removal or abandonment.

15 Electronic communications apparatus, or any part of it, abandoned by the operator of an electronic communications code network under paragraph 13—

(a) vests in the HCA, and

(b) is deemed, with its abandonment, to cease to be kept installed for the purposes of an electronic communications code network.

Orders relating to electronic communications apparatus: notice requirements

16 (1) The Secretary of State must serve notice on the operator of an electronic communications code network of the making of an order under paragraph 3 if the order extinguishes a public right of way in circumstances in which paragraphs 12 and 13 apply in relation to the operator.

(2) The notice must be served as soon as practicable after the making of the order.

Supplementary: Part 2

17 The power of the Secretary of State to make orders under paragraph 3 includes power to—

(a) vary or revoke such orders, and

(b) make supplementary, incidental, consequential, transitional, transitory or saving provision.

18 In this Part of this Schedule, in relation to an order, any reference to making a final decision is a reference to deciding whether to make the order or what modification (if any) ought to be made.