SCHEDULES

SCHEDULE 11 Modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants

5 Application of Part 1 of the 1965 Act
(1) The modifications referred to in paragraph 4(a) are as follows.
(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—
(a) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or
(b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.
(3) For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—

“7 In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the restrictive covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”

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(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a) section 9(4) (failure by owners to convey);
(b) paragraph 10(3) of Schedule 1 (owners under incapacity);
(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),
are modified to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
(5) Section 11 (powers of entry) of the 1965 Act is modified to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 24), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A (powers of entry: further notices of entry), 11B (counter-notice requiring possession to be taken on specified date), 12 (unauthorised entry) and 13 (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.
Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).
Section 11B was inserted by section 187(3) of the Housing and Planning Act 2016.
Section 12 was amended by section 56(2) of and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23) and paragraph 4 of Schedule 16 to the Housing and Planning Act 2016.
Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).
(6) Section 20 (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
Section 20 was amended by paragraph 4 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.
(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 25(4) (modification of Part 1 of the 1965 Act) is also modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.
(8) For Schedule 2A to the 1965 Act substitute—

“SCHEDULE 2A COUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT

Introduction
1 (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 (execution of declaration) of the 1981 Act as applied by article 30 (application of the 1981 Act) of the Portishead Branch Line (MetroWest Phase 1) Order 2022 in respect of the land to which the notice to treat relates.
(2) But see article 31(3) (acquisition of subsoil or airspace only) of the Portishead Branch Line (MetroWest Phase 1) Order 2022 which excludes the acquisition of subsoil or airspace only from this Schedule.
2 In this Schedule “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land
3 A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
4 A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice
5 On receiving a counter-notice, the acquiring authority must decide whether to—
(a) withdraw the notice to treat,
(b) accept the counter-notice, or
(c) refer the counter-notice to the Upper Tribunal.
6 The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
7 If the acquiring authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.
8 If the acquiring authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period.
9 If the acquiring authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.

Determination by Upper Tribunal
10 On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—
(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or
(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
11 In making its determination, the Upper Tribunal must take into account—
(a) the effect of the acquisition of the right or the imposition of the restrictive covenant,
(b) the use to be made of the right or restrictive covenant proposed to be acquired or imposed, and
(c) if the right or restrictive covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
12 If the Upper Tribunal determines that the acquisition of the right or the imposition of the restrictive covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take.
13 If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.
14 (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.
(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”

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