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Property (Northern Ireland) Order 1978

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Power of Lands Tribunal to modify or extinguish impedimentsN.I.

5.—(1) The Lands Tribunal, on the application of any person interested in land affected by an impediment, may make an order modifying, or wholly or partially extinguishing, the impediment on being satisfied that the impediment unreasonably impedes the enjoyment of the land or, if not modified or extinguished, would do so.

(2) Except with the permission of the Lands Tribunal, no application shall be made under this Article to modify or extinguish an impediment arising under any provision contained in a lease until the expiration of 21 years from the beginning of the term created by the lease.

(3) On an application under this Article, the Lands Tribunal—

(a)may direct such enquiries, if any, to be made of any government department, district council or public body, and

(b)may direct such notices, if any, to be given—

(i)to the occupier of the land (where the application is made by a person other than the occupier), to mortgagees of the land, to occupiers or mortgagees of land benefited by the impediment and to such other persons, and

(ii)in such manner, whether by advertisement or otherwise, as the Tribunal thinks fit.

(4) Where, on an application under this Article, there arises before the Lands Tribunal a question involving any matter mentioned in paragraph ( a), ( b) or ( c) of Article 4(1), the provisions of that Article shall have effect in relation to that question as if the application were one made to the Lands Tribunal under that Article.

(5) In determining whether an impediment affecting any land ought to be modified or extinguished, the Lands Tribunal shall take into account—

(a)the period at, the circumstances in, and the purposes for which the impediment was created or imposed;

(b)any change in the character of the land or neighbourhood;

(c)any public interest in the land, particularly as exemplified by[F1 the regional development strategy formulated under Article 3 of the Strategic Planning (Northern Ireland) Order 1999 or by] any [F2local development plan (within the meaning of section 6(1) of the Planning Act (Northern Ireland) 2011) for the district] in which the land is situated, as that plan is for the time being in force;

(d)any trend shown by planning permissions (within the meaning of [F3that Planning Act] ) granted for land in the vicinity of the land, or by refusals of applications for such planning permissions, which are brought to the notice of the Tribunal;

(e)whether the impediment secures any practical benefit to any person and, if it does so, the nature and extent of that benefit;

(f)where the impediment consists of an obligation to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether the obligation has become unduly onerous in comparison with the benefit to be derived from the works or the doing of that thing;

(g)whether the person entitled to the benefit of the impediment has agreed either expressly or by implication, by his acts or omissions, to the impediment being modified or extinguished;

(h)any other material circumstances.

(6) Where the Lands Tribunal makes an order modifying or extinguishing an impediment,—

(a)the Tribunal may add or substitute such new impediment as appears to it to be reasonable in view of the modification or extinguishment of the existing impediment;

(b)the Tribunal may direct the applicant to pay the person entitled to the benefit of the impediment, either—

(i)a sum to compensate him for any loss or disadvantage which, notwithstanding any new impediment which may be added or substituted under sub-paragraph ( a), he suffers in consequence of the modification or extinguishment of the impediment, or

(ii)a sum to make up for any effect which the impediment had at the time when it was imposed, in reducing the consideration then received for the land affected by it,

or, where it appears to the Tribunal that the modification or extinguishment of the impediment may substantially affect the security for any mortgage on land benefited by the impediment, the Tribunal may direct payment of any such sum as is mentioned in head (i) or head (ii) to the mortgagee, or, if there is more than one mortgagee, to the first mortgagee, who shall, in either case, apply the amount so paid as if it were proceeds of sale.

(7) A new impediment shall not be added, or substituted under paragraph (6)( a) without the agreement of the applicant; but this provision does not affect the discretion of the Lands Tribunal to refuse an application where such agreement is not forthcoming.

F2Words in art. 5(5)(c) substituted (13.2.2015 for specified purposes, 1.4.2015 insofar as not already commenced) by Planning Act (Northern Ireland) 2011 (c. 25), s. 254(1)(2), Sch. 6 para. 15(a) (with s. 211); S.R. 2015/49, arts. 2, 3, Sch. 1 (with Sch. 2 (as amended (16.3.2016) by S.R. 2016/159, art. 2))

F3Words in art. 5(5)(d) substituted (13.2.2015 for specified purposes, 1.4.2015 insofar as not already commenced) by Planning Act (Northern Ireland) 2011 (c. 25), s. 254(1)(2), Sch. 6 para. 15(b) (with s. 211); S.R. 2015/49, arts. 2, 3, Sch. 1 (with Sch. 2 (as amended (16.3.2016) by S.R. 2016/159, art. 2))

Modifications etc. (not altering text)

C1Art. 5 excluded (1.2.2015 for specified purposes, 1.4.2015 in so far as not already in operation) by Planning Act (Northern Ireland) 2011 (c. 25), ss. 77(11), 254(1), (2) (with s. 211); S.R. 2015/25, arts. 2, 3

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