| |
PART III
ACQUISITION AND POSSESSION OF LAND
Powers of acquisition
Power to acquire land
12.
Railtrack may acquire compulsorily so much of the land shown on the deposited plans within the limits of deviation for the scheduled works shown on those plans and described in the book of reference as may be required for or in connection with the authorised works, and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.
Application of Part I of Compulsory Purchase Act 1965
13.
- (1) Part I of the 1965 Act, insofar as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order-
(a) as it applies to a compulsory purchase to which the Acquisition of Land Act 1981[10] applies, and
(b) as if this Order were a compulsory purchase order under that Act.
(2) Part I of the 1965 Act, as so applied, shall have effect as if-
(a) section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provisions as to the giving of bonds) were omitted, and
(b) in section 11(1) (which confers powers to enter on and to take possession of land subject to a notice to treat on giving not less than 14 days' notice) for the reference to 14 days' notice there were substituted-
(i) in a case where the notice to treat relates only to the acquisition of subsoil or the acquisition of an easement or other right over the land, a reference to notice of one month, or
(ii) in any other case, a reference to notice of 3 months.
Power to acquire new rights
14.
- (1) Railtrack may compulsorily acquire such easements or other rights over any land referred to in article 12 above as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.
(2) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 4 to this Order), where Railtrack acquires a right over land under paragraph (1) above it shall not be required to acquire a greater interest in it.
(3) Schedule 4 to this Order shall have effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.
(4) In relation to land to which this paragraph applies, article 12 above, so far as relating to the acquisition or creation of easements or other rights by virtue of paragraph (1) above, shall be treated as also authorising acquisition by a statutory utility in any case where the Secretary of State gives his consent in writing.
(5) Paragraph (4) above applies to land within the Order limits which is or will be required for use in relocating any apparatus which it is expedient to divert or replace in consequence of the carrying out of the works authorised by this Order; and in that paragraph "statutory utility" means a licence holder within the meaning of Part I of the Electricity Act 1989[11], a public gas transporter within the meaning of Part I of the Gas Act 1986[12], a water undertaker within the meaning of the Water Industry Act 1991[13], a sewerage undertaker within Part I of that Act and any local authority which is a relevant authority for the purposes of section 97 of that Act.
Power to acquire subsoil only
15.
- (1) Railtrack may compulsorily acquire so much of the subsoil of the land referred to in article 12 above as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.
(2) Where Railtrack acquires any part of the subsoil of land under paragraph (1) above it shall not be required to acquire an interest in any other part of the land.
(3) Paragraph (2) above shall not prevent article 19 below from applying where Railtrack acquires a cellar, vault, arch or other construction forming part of a house, building or factory.
Rights under or over streets
16.
- (1) Railtrack may enter upon and appropriate so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised works and may use such subsoil or air-space for those purposes or any other purpose connected with or ancillary to its railway undertaking.
(2) The power under paragraph (1) above may be exercised in relation to a street without Railtrack being required to acquire any part of the street or any easement or right in the street.
(3) Railtrack shall not be required to pay any compensation for the exercise of the powers conferred by paragraph (1) above where the street is a highway; but where the street is not a highway any person suffering loss by the entry upon and appropriation of such subsoil shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(4) Paragraphs (2) and (3) above shall not apply in relation to-
(a) any subway or underground building, or
(b) any cellar, vault, arch or other construction in or on a street which forms part of a building fronting onto the street.
Temporary possession of land
Temporary use of land for construction of works
17.
- (1) Railtrack may, in connection with the carrying out of the authorised works-
(a) enter upon and take temporary possession of the land specified in columns (1) and (2) of Schedule 5 to this Order for the purpose specified in relation to that land in column (3) of that Schedule relating to the authorised work so specified in column (4) of that Schedule,
(b) remove any buildings and vegetation from that land, and
(c) construct temporary works (including the provision of means of access) and buildings on the land.
(2) Not less than 28 days before entering upon and taking temporary possession of land under this article Railtrack shall serve notice of the intended entry on the owners and occupiers of the land.
(3) Railtrack may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the work or works specified in relation to that land in column (4) of Schedule 5 to this Order.
(4) Before giving up possession of land of which temporary possession has been taken under this article, Railtrack shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but Railtrack shall not be required to replace a building removed under this article.
(5) Railtrack shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
(6) Any dispute as to a person's entitlement to compensation under paragraph (5) above, or as to the amount of the compensation, shall be determined under Part I of the 1961 Act.
(7) Without prejudice to article 29 below, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5) above.
(8) The powers of compulsory acquisition of land conferred by this Order shall not apply in relation to the land referred to in paragraph (1) above except that Railtrack shall not be precluded from-
(a) acquiring new rights over any part of that land under article 14 above, or
(b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 15 above.
(9) Where Railtrack takes possession of land under this article, it shall not be required to acquire the land or any interest in it.
(10) In this article "building" includes structure or any other erection.
Compensation
Disregard of certain interests and improvements
18.
- (1) In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the tribunal shall not take account-
(a) any interest in land, or
(b) any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,
if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.
(2) In paragraph (1) above "relevant land" means the land acquired from the person concerned or any other land with which he is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.
Supplementary
Acquisition of part only of certain properties
19.
- (1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 13 above) in any case where-
(a) a notice to treat is served on a person ("the owner") under the 1965 Act (as so applied) in respect of land forming only part of a house, building or factory or of land consisting of a house with a park or garden ("the land subject to the notice to treat"), and
(b) a copy of this article is served on the owner with the notice to treat.
(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on Railtrack a counter-notice objecting to the sale of the land subject to the notice to treat and stating that he is willing and able to sell the whole ("the land subject to the counter-notice").
(3) If no such counter-notice is served within that period, the owner shall be required to sell the land subject to the notice to treat.
(4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the land subject to the notice to treat shall, unless Railtrack agrees to take the land subject to the counter-notice, be referred to the tribunal.
(5) If on such a reference the tribunal determine that the land subject to the notice to treat can be taken-
(a) without material detriment to the remainder of the land subject to the counter-notice, or
(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,
the owner shall be required to sell the land subject to the notice to treat.
(6) If on such a reference the tribunal determine that only part of the land subject to the notice to treat can be taken-
(a) without material detriment to the remainder of the land subject to the counter-notice, or
(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,
the notice to treat shall be deemed to be a notice to treat for that part.
(7) If on such a reference the tribunal determine that-
(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice, but
(b) the material detriment is confined to a part of the land subject to the counter-notice,
the notice to treat shall be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which Railtrack is authorised to acquire compulsorily under this Order.
(8) If Railtrack agrees to take the land subject to the counter-notice, or if the tribunal determine that-
(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house, and
(b) that the material detriment is not confined to a part of the land subject to the counter-notice, the notice to treat shall be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which Railtrack is authorised to acquire compulsorily under this Order.
(9) In any case where by virtue of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, Railtrack may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and if it does so shall pay to the owner compensation for any loss or expense occasioned to him by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.
(10) Where the owner is required under this article to sell only part of a house, building or factory or of land consisting of a house with a park or garden, Railtrack shall pay him compensation for any loss sustained by him due to the severance of that part in addition to the value of the interest acquired.
Extinction or suspension of private rights of way
20.
- (1) All private rights of way over land subject to compulsory acquisition under this Order shall be extinguished-
(a) as from the acquisition of the land by Railtrack, whether compulsorily or by agreement, or
(b) on the entry on the land by Railtrack under section 11(1) of the 1965 Act,
whichever is sooner.
(2) All private rights of way over land of which Railtrack takes temporary possession under this Order shall be suspended and unenforceable for as long as Railtrack remains in lawful possession of the land.
(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(4) This article does not apply in relation to any right of way to which section 271 or 272 of the Town and Country Planning Act 1990[14] (extinguishment of rights of statutory undertakers etc.) or paragraph 2 of Schedule 6 to this Order applies.
Time limit for exercise of powers of acquisition
21.
- (1) The powers conferred by this Order to acquire land or rights over land compulsorily, and the power conferred by article 17 above to enter upon and take temporary possession of land, shall cease at the end of the period of 5 years beginning on the day on which this Order comes into force.
(2) Paragraph (1) above shall not prevent Railtrack remaining in possession of land in accordance with article 17 above after the end of that period, if the land was entered and possession of it was taken before the end of that period.
PART IV
MISCELLANEOUS AND GENERAL
Noise
Control of construction sites: appeals
22.
Sections 60 (control of noise on construction sites) and 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974[15] shall have effect, in relation to works carried out in exercise of the powers conferred by this Order, as if in subsection (7) of each section (appeal against failure to give consent or the giving of qualified consent) for the words "a magistrates' court" there were substituted the words "the Secretary of State".
Defence to proceedings in respect of statutory nuisance
23.
- (1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990[16] (summary proceedings by person aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows-
(a) that the nuisance relates to premises used by Railtrack for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works, and
(b) that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60, of the Control of Pollution Act 1974 or a consent given under section 61 or 65, of that Act.
(2) The following provisions of the Control of Pollution Act 1974, namely-
(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990), and
(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),
shall not apply where the consent relates to the use of premises by Railtrack for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
Miscellaneous
Certain land to be treated as operational land
24.
Planning permission which is deemed by a direction under section 90(2A) of the Town and Country Planning Act 1990[17] to be granted in relation to works authorised by this Order shall be treated as specific planning permission for the purposes of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).
Statutory undertakers, etc.
25.
The provisions of Schedule 6 to this Order shall have effect.
Protective provisions
26.
The provisions of Schedule 7 to this Order shall have effect.
Certification of plans, etc.
27.
Railtrack shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited sections and the deposited plans to the Secretary of State for certification that they are true copies, respectively, of the book of reference, deposited sections and deposited plans referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
Service of notices
28.
- (1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 of the Interpretation Act 1978[18] as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) above, if he has given an address for service, that address, and otherwise-
(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body, and
(b) in any other case, his last known address at the time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by-
(a) addressing it to him by name or by the description of "owner", or as the case may be "occupier", of the land (describing it), and
(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.
No double recovery
29.
Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.
Arbitration
30.
Any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.
Repeals
31.
The enactment specified in Schedule 8 to this Order is hereby repealed to the extent specified in the third column of that Schedule.
Signed by authority of the Secretary of State for the Environment, Transport and the Regions
A S D Whybrow
Head of Charging and Local Transport Division, Department of the Environment, Transport and the Regions
30th July 1999
Notes:
[10]
1981 c. 67.back
[11]
1989 c. 29.back
[12]
1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 c. 45.back
[13]
1991 c. 56.back
[14]
1990 c. 8.back
[15]
1974 c. 40.back
[16]
1990 c. 43.back
[17]
1990 c. 8.back
[18]
1978 c. 30.back
| |
Other UK SIs |
Home |
National Assembly for Wales Statutory Instruments |
Scottish Statutory Instruments |
Statutory Rules of Northern Ireland |
Her Majesty's Stationery Office