Chapter 3 – Payments in Connection With Operations
Overview of Chapter
191.Chapter 3 makes provision about contribution orders, compensation and demands for the recovery of expenses by both owners of land and the Authority. Chapter 3 also sets out the rights of owners and contributories to appeal against such demands. Under section 74(1)(e), the Welsh Ministers must give guidance to the Authority in relation to the exercise of its functions under Chapter 3.
Section 48 – Contribution orders
192.Section 48 provides that where an owner of land has to bear expenses as a result of the carrying out of operations specified in a notice issued under section 35 or 46, the owner or the Authority can apply to the court for an order requiring one or more other persons to contribute towards those expenses. “Court” is defined in section 90 as the High Court or the county court.
193.An order can only be made in relation to a person listed in subsection (2).
194.Subsections (5) and (6) set out the procedural requirements that the owner or the Authority must comply with when applying for an order under this section.
195.The court must take account of all the circumstances, including all the matters listed in subsection (7), in deciding whether to make an order, and in determining the amount of any contribution. If the court decides to make an order, the order must specify the percentage of the total amount in respect of which a contribution can be claimed under Chapter 3.
Section 49 – Meaning of “contribution order”, “contributory” and “the specified percentage”
196.This section contains definitions of terms used in the Act in relation to contribution orders.
Section 50 – Compensation for damage, loss or disturbance etc
197.Section 50 gives the persons listed in subsection (3) an entitlement to compensation from either the owner of the land or the Authority in certain circumstances.
198.Subsections (1) and (2) set out the circumstances in which a person is entitled to compensation. Compensation may only be claimed where operations or consequential works of reinstatement have been carried out in accordance with Part 3 or where the Authority has carried out investigations to determine whether operations are needed. If, as a result of operations under section 35 or 44 or reinstatement works carried out in consequence of such operations, land is damaged, other property is damaged, removed or disposed of or any person's enjoyment of any land is disturbed, the persons listed in subsection (3) are entitled to compensation. If as a result of investigations under section 55, land or other property is damaged or any person’s enjoyment of land is disturbed, the persons listed in subsection (3) are entitled to compensation.
199.An owner of land is not entitled to compensation under this section for damage, removal, loss or disturbance resulting from operations carried out by them or by a previous owner of the land.
200.Disputes about claims for compensation under this section are to be determined by the court (defined in section 90 as the High Court or the county court).
201.Schedule 2 has effect in relation to certain claims for compensation under this section. See the notes at paragraphs 127 to 134 above in relation to Schedule 2.
Section 51 – Owner's right to receive expenses from contributory
202.Where a contribution order has been made under section 48 in relation to operations an owner carried out on their land in compliance with a notice issued under section 35, the owner is entitled to recover from the contributory the contribution specified in the order in accordance with section 51.
203.As explained in the notes for section 48, the contribution order will specify the percentage of the total amount of expenses incurred by an owner which the owner may seek as a contribution. Subsection (3) of section 51 sets out how the total amount is calculated. It is the sum of:
the expenses the owner reasonably incurred in carrying out the operations required by the notice issued under section 35 and any consequential works of reinstatement that were reasonably necessary,
the amount of compensation that the owner has been, or may be, required to pay under section 50, and
the amount of compensation that the owner could have claimed under section 50 if the operations and works of reinstatement had been carried out by the Authority rather than by the owner.
204.Subsections (4) and (5) set out the procedural requirements an owner must follow to recover expenses from a contributory.
205.Subsection (7) provides that this section and section 52 have effect with the modifications set out in Schedule 3 in circumstances where an owner of land has carried out operations specified in a notice under section 35 and the Authority has cancelled that notice under section 42.
Schedule 3 – Modifications of sections 51 and 52 where a notice under section 35 is cancelled
206.Schedule 3 sets out the following modifications that will apply to sections 51 and 52 where the Authority cancels a notice it has given to an owner under section 35.
207.Where section 51 or 52 refers to operations carried out in compliance with a notice given under section 35, this is to be read as a reference only to operations carried out before the notice was cancelled.
208.The amount of expenses reasonably incurred by the owner in carrying out operations must be calculated for the purposes of determining the total amount in relation to which an owner is entitled to a contribution under section 51 or whether the grounds of an application to vary or cancel a demand for a contribution under section 52 are made out. Paragraph 3(1) of Schedule 3 provides that when calculating the amount of expenses reasonably incurred in carrying out operations in circumstances where the notice is cancelled, any sum that falls within paragraph 3(1)(a) and (b) must be deducted. A sum falls within paragraph 3(1)(a) and (b) if it is recoverable or has been recovered by the owner from the Authority under section 43 (see paragraphs 174 to 179 above) and relates to expenses the owner incurred in consequence of the notice given to them under section 35.
209.Under paragraph 3(2), where a notice is cancelled an owner of land is not entitled to a contribution under section 51 in respect of expenses they incur in carrying out works of reinstatement.
210.Paragraph 4 sets out modifications that apply if a direction is made under section 43 allowing the owner to recover sums from the Authority in respect of the expenditure the owner incurred in consequence of being given a notice under section 35. These include a requirement that any sums recoverable from the Authority as a result of the direction must be specified in any demand given under section 51 for a contribution towards the owner’s expenses. A person who is given such a demand may apply under section 52 to vary or cancel the demand on the ground that the amount claimed in the demand does not make proper allowance for a sum that must be deducted by virtue of paragraph 3.
Section 52 – Right of contributory to appeal against owner’s demand
211.Where a person is given a demand for a contribution under section 51, they can (within 6 weeks of the demand being given) apply to the court for an order varying the demand.
212.Subsection (3) sets out the grounds on which an application to vary a demand may be made. Where the court is satisfied that one or more grounds are made out the court may make an order reducing the amount recoverable from the contributory (subsection (4)).
Section 53 – Authority's right to recover certain expenses
213.Section 53 applies where the Authority has carried out operations on land under section 44. In this case, the Authority may recover from the owner of that land the expenses set out in subsection (1). The “owner” is the person who was the owner when the Authority started to carry out the operations (see subsection (9)).
214.Under subsection (2), the Authority may recover from the owner of land any expenses reasonably incurred by the Authority in carrying out investigations under section 55 that resulted in them giving the owner a notice under section 35 (see subsection (9) for an explanation of when investigations are to be treated as having resulted in the giving of a notice under section 35). The Authority may also recover the amount of any compensation recovered or recoverable under section 50 from the Authority in relation to such investigations. The “owner” is the person given the notice under section 35 (see subsection (9)).
215.Subsection (3) provides that the Authority may recover expenses from a contributory where an order has been made under section 48 in relation to expenses the owner may otherwise have to bear under subsection (1) or (2).
216.Subsections (4) and (5) set out the procedural requirements the Authority must follow in order to recover sums under this section.
217.Subsection (6) provides that a demand given by the Authority under subsection (4) is final and conclusive unless an application to vary or cancel the demand is made under section 54.
218.Interest is payable in relation to any sum recoverable under this section in accordance with subsection (7) and subsection (8) provides that any sum recoverable may be paid in instalments if agreed by the Authority.
Section 54 - Right to appeal against Authority’s demand
219.Section 54 provides a person given a demand under section 53 with a right to apply to the court (as defined in section 90) for an order varying or cancelling the demand.
220.Subsections (3) and (4) of section 54 set out the grounds on which such an application may be made, and subsection (5) provides that where the court is satisfied that any of the grounds of the application are made out, the court may make an order cancelling the demand or reducing the amount that is recoverable from the person to whom the demand was given.
