321Assessing compensation(1)

The amount of compensation payable in the cases mentioned in subsection (2) is to be assessed in accordance with this section (but this is subject to section 322).

(2)

The cases are those where—

(a)

a statutory undertaker is entitled to be paid compensation—

(i)

under section 319(1) or 320(1) or (3),

(ii)

under section 211 in respect of a discontinuance order made under section 206, or a prohibition order or protection order made under paragraph 1 or 5 of Schedule 15, as those provisions have effect by virtue of section 312, or

(iii)

in respect of a compulsory acquisition of the undertaker’s land under a compulsory purchase order confirmed or made without the appropriate Minister’s certificate, where the land had been acquired by the undertaker for the purpose of its undertaking;

(b)

the operator of an electronic communications code network is entitled to be paid compensation under section 320(2).

(3)

The amount payable is the aggregate of—

(a)

the amount of expenditure reasonably incurred in acquiring land, providing apparatus, erecting buildings or doing work for the purpose of a business adjustment, where the adjustment is made necessary by the proceeding giving rise to compensation,

(b)

the appropriate amount for loss of profits, and

(c)

where the compensation is payable under section 320(1) or (2) and is in respect of the imposition of a requirement to remove apparatus, the amount of expenditure reasonably incurred by the statutory undertaker or the operator in complying with the requirement, reduced by the value of the apparatus concerned after its removal.

(4)

In subsection (3)(b) “the appropriate amount for loss of profits” means—

(a)

where a business adjustment is made, the aggregate of—

(i)

the estimated amount of any decrease in net receipts from the carrying on of the undertaking or the provision of the electronic communications code network pending the adjustment, so far as the decrease is directly attributable to the proceeding giving rise to compensation, and

(ii)

such amount as appears reasonable compensation for any estimated decrease in net receipts from the carrying on of the undertaking or the provision of the electronic communications code network in the period after the adjustment has been completed, so far as the decrease is directly attributable to the adjustment;

(b)

where no business adjustment is made, such amount as appears reasonable compensation for any estimated decrease in net receipts from the carrying on of the undertaking or the provision of the electronic communications code network that is directly attributable to the proceeding giving rise to compensation.

(5)

Where a business adjustment is made, the aggregate amount mentioned in subsection (3) is reduced by an appropriate amount (if any) to offset—

(a)

the estimated value of any property belonging to the statutory undertaker or the operator (whether moveable or immoveable) that ceases to be used for the carrying on of the undertaking or the provision of the electronic communications code network because of the adjustment, so far as the value of the property has not been taken into account under subsection (3)(c), and

(b)

the estimated amount of any increase in net receipts from the carrying on of the undertaking or the provision of the electronic communications code network in the period after the adjustment has been completed, so far as it has not been taken into account in determining the amount mentioned in subsection (3)(b) and is directly attributable to the adjustment.

(6)

Where a business adjustment is made, the aggregate amount mentioned in subsection (3) is also reduced by an appropriate amount (if any), having regard to any increase in the capital value of immoveable property belonging to the statutory undertaker or the operator that is directly attributable to the adjustment, but also taking account of any reduction made under subsection (5)(b).

(7)

Where—

(a)

compensation is payable under section 320(3), and

(b)

the authority that acquired or appropriated the land on which the apparatus was situated carried out the works for the removal or re-siting of the apparatus,

the aggregate amount mentioned in subsection (3) is reduced by the actual cost to the authority of carrying out the works (in addition to any reduction to the aggregate amount in accordance with subsections (5) and (6)).

(8)

In this section references to a decrease in net receipts are references—

(a)

to the amount by which a balance of receipts over expenditure is decreased,

(b)

to the amount by which a balance of expenditure over receipts is increased, or

(c)

where a balance of receipts over expenditure is converted into a balance of expenditure over receipts, to the aggregate of the two balances,

and references to an increase in net receipts are to be interpreted accordingly.

(9)

In this section—

“the appropriate Minister’s certificate” (“tystysgrif y Gweinidog priodol”) means a certificate mentioned in section 16(2) of or paragraph 3(2) of Schedule 3 to the Acquisition of Land Act 1981 (c. 67) (certificate that operational land may be compulsorily purchased without serious detriment to undertaking; see also section 31 of that Act, which disapplies section 16(2) and paragraph 3(2) in certain cases);

“business adjustment” (“addasiad busnes”) means any adjustment of—

(a)

the carrying on of a statutory undertaking, or

(b)

the provision of an electronic communications code network;

“proceeding giving rise to compensation” (“gweithred sy’n arwain at ddigollediad”) means—

(a)

in relation to compensation payable under section 320(3), the circumstances making it necessary for the apparatus in question to be removed or re-sited;

(b)

in relation to compensation payable under any other provision mentioned in this section, the action (namely the decision, order, extinguishment of a right, imposition of a requirement or acquisition) in respect of which compensation is payable (as distinct from any development or project in connection with which the action may have been taken).