Article 23
1. The enactments for the time being in force with respect to compensation for the compulsory purchase of land applies with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation on the compulsory purchase of land and interests in land.
2.—(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).
(2) For section 5A(5A) (relevant valuation date) of the 1961 Act, substitute—
“(5A) If—
(a)the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) (powers of entry) of the 1965 Act (as modified by paragraph 5(5) of Schedule 7 to the Morlais Demonstration Zone Order 2021);
(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 to the Morlais Demonstration Zone Order 2021) to acquire an interest in the land; and
(c)the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.”
3.—(1) Without prejudice to the generality of paragraph 1, the Land Compensation Act 1973(1) has effect subject to the modifications set out in sub-paragraphs (2) and (3).
(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 5(2)—
(a)for the words “land is acquired or taken” there are substituted the words “a right or restrictive covenant over land is purchased from or imposed on”; and
(b)for the words “acquired or taken from him” there are substituted the words “over which the right is exercisable or the restrictive covenant is enforceable”.
(3) In section 58(1) (determination of material detriment where part of house etc proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act—
(a)for the word “part” in paragraphs (a) and (b) there are substituted the words “a right or restrictive covenant over land consisting”;
(b)for the word “severance” there is substituted the words “right or restrictive covenant over the whole of the house, building or manufactory or of the house and the park or garden”;
(c)for the words “part proposed” there are substituted the words “right or restrictive covenant proposed”; and
(d)for the words “part is” there are substituted the words “right or restrictive covenant is”.
4.—(1) The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right or to the imposition of a restrictive covenant as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are 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 restriction is or is to be enforceable.
(2) Without prejudice to the generality of sub-paragraph (1), Part 1 of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant with the modifications specified in the following provisions of this Schedule.
5.—(1) For section 7 of the 1965 Act (measure of compensation) there is substituted the following section—
“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 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 his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.
(2) 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 to be so modified as 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.
(3) Section 11(2) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority have served notice to treat in respect of any right or restriction as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 24(1) (application of Part 1 of the 1965 Act)), they have power, exercisable in the same circumstances and subject to the same conditions, to enter for the purpose of exercising that right or enforcing that covenant; and sections 11A(3) (powers of entry: further notices of entry), 11B(4) (counter-notice requiring possession to be taken on specified date), 12(5) (penalty for unauthorised entry) and 13(6) (refusal to give possession to acquiring authority) of that Act are modified accordingly.
(4) Section 20 of the 1965 Act (protection for interests of tenants at will etc) 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.
(5) Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) are to be so modified 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.
(6) For Schedule 2A(7) to the 1965 Act substitute—
1.—(1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory, and have not executed a general vesting declaration under section 4 of the 1981 Act in respect of the land to which the notice to treat relates.
(2) But see article 26(3) (power to acquire subsoil only) of the Morlais Demonstration Zone Order 2021 which excludes the acquisition of subsoil only from this schedule.
2. In this Schedule, “house” includes any park or garden belonging to a house.
3. A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the 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.
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 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 authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.
8. If the 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 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.
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 proposed use of the right or the restrictive covenant, and
(c)if the right is proposed to be acquired or the restrictive covenant is proposed to be 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 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 authority ought to be required to take some or all of the house, building or factory, the 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 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.”
6.—(1) The 1981 Act, as applied by article 25 (application of the 1981 Act) to the acquisition of land under article 22 (power to acquire land), applies to a compulsory acquisition of a right or the imposition of a restrictive covenant under article 23 (power to acquire new rights and impose restrictive covenants)—
(a)with the modifications specified in paragraph 7; and
(b)with such other modifications as may be necessary.
(2) The enactments relating to compensation for the compulsory purchase of land also apply to a compulsory acquisition of a right or the imposition of a restrictive covenant under article 23.
7.—(1) The modifications referred to in paragraph 6(1)(a) are as follows.
(2) References in the 1981 Act to land are, in 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 over which the restrictive covenant is, or is to be, enforced.
(3) References in the 1981 Act to the 1965 Act are to be read as references to that Act as it applies to a compulsory acquisition of a right or the imposition of a restrictive covenant under article 23.
(4) Section 8(1) of the 1981 Act (vesting, and right to enter and take possession) is modified so as to secure—
(a)that a general vesting declaration in respect of any right vests the right or the restrictive covenant in the acquiring authority on the vesting date; and
(b)that, as from the vesting date, the acquiring authority have power, exercisable in the same circumstances and subject to the same conditions, to enter land for the purpose of exercising that right or enforcing the restrictive covenant as if the circumstances mentioned in section 8(1)(a) and (b) of the 1981 Act had arisen.
(5) Section 9(2) of the 1981 Act (right of entry under section 8(1) not exercisable in respect of land subject to certain tenancies, unless notice has been served on occupiers of the land) is modified so as to require a notice served by the appropriate authority under that provision to refer to the authority’s intention to enter land specified in the notice in order to exercise the right or enforce that restrictive covenant.
(6) In section 10(1) of the 1981 Act (acquiring authority’s liability on vesting of land), the reference to the acquiring authority’s taking possession of the land under section 11(1) of the 1965 Act is to be read instead as a reference to the authority’s exercising the power to enter the land under that provision as modified by paragraph 4(5) of this Schedule.
(7) Schedule A1 to the 1981 Act (counter-notice requiring purchase of land not in general vesting declaration) has effect as if—
(a)in paragraph 1(1), for “part only of” there were substituted “only the acquisition of a right or the imposition of a restrictive covenant over”;
(b)references to the land proposed to be acquired were (subject to paragraph (d) below) to the right proposed to be acquired or to the restrictive covenant proposed to be imposed;
(c)references to the additional land were to the house, building or factory over which the right is proposed to be exercisable or the restrictive covenant to be enforceable;
(d)in paragraphs 14 and 15, references to the severance of the land proposed to be acquired were to the acquisition of the right or the imposition of the restrictive covenant; and
(e)in paragraph 15, after “in addition to” there were inserted “or in substitution for”.
Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 6 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.
Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).
Section 11B was inserted by section 187(2) 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).
Inserted by section 199(1) and paragraphs 1 and 3 of Part 1 of Schedule 17 to the Housing and Planning Act 2016.