The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

Regulation 25

SCHEDULE 5 Compensation

Compensation for grant of rights

1.  This schedule prescribes—

(a) the period within which a person who grants, or joins in granting, any rights pursuant to regulation 25 may apply for compensation for the grant of those rights;

(b) the manner in which, and the person to whom, such an application may be made; and

(c) the manner of determining such compensation, for determining the amount of such compensation and for making supplemental provision relating to such compensation.

Interpretation

2.  In this Schedule—

“the grantor” means the person who grants, or joins in granting, any right; and

“relevant interest” means an interest in land out of which a right has been granted or which is bound by a right granted.

Period for making an application

3.  An application for compensation shall be made before the expiry of a period of 12 months beginning with—

(a) the date of the grant of the rights in respect of which compensation is claimed; or

(b) where there is an appeal against the notice in relation to which those rights were granted, the date on which the appeal is determined or withdrawn,

whichever is the later date.

Manner of making an application

4.—(1) An application for compensation shall be made in writing and delivered at or sent by pre-paid post to the last known address for correspondence of the person to whom the right was granted.

(2) The application shall contain—

(a) a copy of the grant of rights in respect of which the grantor is applying for compensation and of any plans attached to such grant;

(b) a description of the exact nature of any interest in land in respect of which compensation is applied for; and

(c) a statement of the amount of compensation applied for, distinguishing the amounts applied for under each of sub-paragraphs (a) to (e) of paragraph 5 and showing how the amount applied for under each sub-paragraph has been calculated.

Loss and damage for which compensation is payable

5.  Compensation shall be payable for loss and damage of the following descriptions—

(a) any depreciation in the value of any relevant interest to which the grantor is entitled which results from the grant of the right;

(b) loss or damage, in relation to any relevant interest to which the grantor is entitled, which—

(i) is attributable to the grant of the right or the exercise of it;

(ii) does not consist of depreciation in the value of that interest; and

(iii) is loss or damage for which the grantor would have been entitled to compensation by way of compensation for disturbance, if that interest had been acquired compulsorily under the Land Acquisition and Compensation (NI) Order 1973(1), in pursuance of a notice of intention to vest served on the date on which the grant of the right was made;

(c) damage to, or affection of, any interest in land to which the grantor is entitled which is not a relevant interest and which results from the grant of the right or from the exercise of it;

(d) any loss or damage sustained by the grantor, other than in relation to any interest in land to which the grantor is entitled, which is attributable to the grant of the right or the exercise of it; and

(e) the amount of any valuation and legal costs reasonably incurred by the grantor in granting the right and in the preparation of the application for and the negotiation of the amount of compensation.

Basis on which compensation is assessed

6.—(1) The rules set out in Article 6 of the Land Compensation (Northern Ireland) Order 1982(2) (rules for assessing compensation) have effect, so far as applicable and subject to any necessary modifications, for the purpose of assessing any compensation as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(2) Where the relevant interest in respect of which any compensation is to be assessed is subject to a mortgage—

(a) the compensation shall be assessed as if the interest were not subject to the mortgage;

(b) no compensation is payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage); and

(c) any compensation payable in respect of the interest that is subject to the mortgage shall be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee and shall, in either case, be applied as if it were proceeds of sale.

Determination of disputes

7.—(1) Any question of disputed compensation shall be referred to and determined by the Lands Tribunal.

(2) In relation to the determination of any such question of compensation, the provisions of Articles 4 and 5 of the Land Compensation (Northern Ireland) Order 1982 (procedure on references to the Lands Tribunal and costs) shall apply as if—

(a) the reference in Article 4 of the Land Compensation (Northern Ireland) Order 1982 to Article 3 of that Order were a reference to sub-paragraph (1); and

(b) references in Article 5 of the Land Compensation (Northern Ireland) Order 1982 to the acquiring authority were references to the person to whom the rights were granted.

(1)

S.I. 1973/1896 (N.I. 21)

(2)

S.I. 1982/712 (N.I. 9)