Town and Country Planning (Scotland) Act 1972 (repealed 27.5.1997)

• (c) in consequence of the fact that the hereditament or unit or a part of it was, or was likely to be, comprised in land of any of the specified descriptions, he has been unable to sell that interest except at a price substantially lower than that for which it might reasonably have been expected to sell if no part of the hereditament or unit were, or were likely to be, comprised in such land.

then, subject to the provisions of this section, he may serve on the appropriate authority a notice in the prescribed form requiring that authority to purchase that interest to the extent specified in, and otherwise in accordance with, these provisions.

• (2) Subsection (1) of this section shall apply in relation to an interest in part of a hereditament or agricultural unit as it applies in relation to an interest in the entirety of a hereditament or agricultural unit:

• (a) if his interest as heritable creditor is in the entirety of a hereditament or agricultural unit, to make any claim or serve any notice under this section in respect of any interest in part of the hereditament or unit; or

• (b) if his interest as heritable creditor is only in part of a hereditament or agricultural unit, to make or serve any such notice or claim in respect of any interest in less than the entirety of that part.

• (3) Notice under this section shall not be served unless one or other of the following conditions is satisfied with regard to the interest which the heritable creditor claims he has the power to sell—

• (a) the interest could be the subject of a notice under section 182 of this Act served by the person entitled thereto on the date of service of the notice under this section; or

• (b) the interest could have been the subject of such a notice served by that person on a date not more than six months before the date of service of the notice under this section.

• (4) No notice under this section shall be served in respect of a hereditament or agricultural unit, or any part of a hereditament or agricultural unit, at a time when a notice already served under section 182 of this Act is outstanding with respect to the hereditament, unit or part; and no notice shall be so served under that section at a time when a notice already served under this section is so outstanding.

• (5) For the purposes of subsection (4) of this section, a notice served under this section or section 182 of this Act shall be treated as outstanding with respect to a hereditament or agricultural unit, or to part of a hereditament or agricultural unit, until—

• (a) it is withdrawn in relation to the hereditament, unit or part; or

• (b) an objection to the notice having been made by a counter-notice under section 183 of this Act, either—

• (i) the period of two months specified in section 184 of this Act elapses without the claimant having required the objection to be referred to the Lands Tribunal under that section; or

• (ii) the objection, having been so referred to the Lands Tribunal, is upheld by the Tribunal with respect to the hereditament, unit or part.

• (6) The grounds on which objection may be made in a counter-notice under section 183 of this Act to a notice under this section are those specified in paragraphs (a) to (c) of subsection (2) of that section and, in a case to which it applies the grounds specified in paragraph (d) of that subsection and also the following grounds—

• (a) that, on the date of service of the notice under this section, the claimant had no interest as heritable creditor in any part of the hereditament or agricultural unit to which the notice relates;

• (b) that (for reasons specified in the counter-notice) the claimant had not on that date the power referred to in subsection (1)(a) of this section;

• (c) that the conditions specified in subsection (1)(b) and (c) of this section are not fulfilled;

• (d) that (for reasons specified in the counter-notice) neither of the conditions specified in subsection (3) of this section was, on the date of service of the notice under this section, satisfied with regard to the interest referred to in that subsection.

Saving for claimant's right to sell whole hereditament, etc.

191

• (1) The provisions of sections 183(2)(c), 184(5), 185(3) and 188(3) and (4) of this Act relating to hereditaments shall not affect the right of a claimant under section 90 of the Lands Clauses Consolidation (Scotland) Act 1845 to sell the whole of the hereditament, or (in the case of an agricultural unit) the whole of the affected area, which he has required the authority to purchase.

• (2) The said provisions shall not affect the right of a claimant under paragraph 4 of Schedule 2 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to sell (unless the Lands Tribunal otherwise determines) the whole of the hereditament, or (in the case of an agricultural unit) the whole of the affected area, which he has required the authority to purchase; and accordingly in determining whether or not to uphold an objection relating to a hereditament on the grounds mentioned in section 183(2)(c) of this Act the Tribunal shall consider (in addition to the other matters which they are required to consider) whether—

• (a) in the case of a house, building or manufactory, the part proposed to be acquired can be taken without material detriment to the house, building or manufactory; or

• (b) in the case of a park or garden belonging to a house, the part proposed to be acquired can be taken without seriously affecting the amenity or convenience of the house.

Meaning of " owner-occupier" and " resident owneroccupier "

192

• (1) Subject to the following provisions of this section, in these provisions “owner-occupier”, in relation to a hereditament, means a person who—

• (a) occupies the whole or a substantial part of the hereditament in right of an owner’s interest therein, and has so occupied the hereditament or that part thereof during the whole of the period of six months ending with the date of service; or

• (b) occupied, in right of an owner’s interest, the whole or a substantial part of the hereditament during the whole of a period of six months ending not more than twelve months before the date of service, the hereditament, or that part thereof, as the case may be, having been unoccupied since the end of that period.

• (2) Subject to the following provisions of this section, in these provisions “owner-occupier”, in relation to an agricultural unit, means a person who—

• (a) occupies the whole of that unit, and has occupied it during the whole of the period of six months ending with the date of service; or

• (b) occupied the whole of that unit during the whole of a period of six months ending not more than twelve months before the date of service,

and, at all times material for the purposes of paragraph (a) or paragraph (b) of this subsection, as the case may be, has been entitled to an owner’s interest in the whole or part of that unit.

• (3) In these provisions “resident owner-occupier”, in relation to a hereditament, means an individual who—

• (a) occupies the whole or a substantial part of the hereditament as a private dwelling in right of an owner’s interest therein, and has so occupied the hereditament or that part thereof, as the case may be, during the whole of the period of six months ending with the date of service; or

• (b) occupied, in right of an owner’s interest, the whole or a substantial part of the hereditament as a private dwelling during the whole of a period of six months ending not more than twelve months before the date of service, the hereditament, or that part thereof, as the case may be, having been unoccupied since the end of that period.

• (4) In this section “owner’s interest”, in relation to a hereditament or agricultural unit, or part thereof, includes the interest of (a) the lessee under a lease thereof, being a lease the unexpired period of which on the date of service is not less than three years and (b) a crofter or cotter therein; and “date of service”, in relation to a hereditament or agricultural unit, means the date of service of a notice in respect thereof under section 182 of this Act.

Special provisions as to partnerships

193

• (1) The provisions of this section shall have effect for the purposes of the application of these provisions to a hereditament or agricultural unit occupied for the purposes of a partnership firm.

• (2) Occupation for the purposes of the firm shall be treated as occupation by the firm, and not as occupation by any one or more of the partners individually, and the definitions of “owner-occupier” in section 192(1) and (2) of this Act shall apply in relation to the firm accordingly.

• (3) If, after the service by the firm of a blight notice, any change occurs (whether by death or otherwise) in the constitution of the firm, upon proceedings, rights or obligations consequential upon that notice may be carried on or exercised by or against, or (as the case may be) shall be incumbent upon, the partners for the time being constituting the firm.

• (4) Nothing in this section or elsewhere in these provisions shall be construed as indicating an intention to exclude the operation of section 19 of the Interpretation Act 1889 (whereby, unless the contrary intention appears, “person” includes any body of persons corporate or unincorporate) in relation to any of these provisions.

• (5) Subsection (2) of this section shall not affect the definition of “resident owner-occupier” in section 192(3) of this Act.

" Appropriate authority " for purposes of these provisions

194

• (1) Subject to the following provisions of this section, in these provisions “the appropriate authority”, in relation to any land, means the government department, local authority or other body or person by whom, in accordance with the circumstances by virtue of which the land falls within any of the specified descriptions, the land is liable to be acquired or is indicated as being proposed to be acquired.

• (2) If any question arises—

• (a) whether the appropriate authority in relation to any land for the purpose of these provisions is the Secretary of State or a local roads authority; or

• (b) which of two or more local roads authorities is the appropriate authority in relation to any land for those purposes; or

• (c) which of two or more local authorities is the appropriate authority in relation to any land for those purposes;

that question shall be referred to the Secretary of State, whose decision shall be final.

• (3) If any question arises which authority is the appropriate authority for the purposes of these provisions—

• (a) section 183(1) of this Act shall have effect as if the reference to the date of service of the blight notice were a reference to that date or the date on which that question is determined, whichever is the later;

• (b) section 190(3)(b) of this Act shall apply with the substitution for the period of six months of a reference to that period extended by so long as it takes to obtain a determination of the question; and

• (c) section 192(1)(b), (2)(b) and (3)(b) of this Act shall apply with the substitution for the reference to twelve months before the date of service of a reference to that period extended by so long as it takes to obtain a determination of the question.

" Appropriate enactment " for purposes of these provisions

195

• (1) Subject to the following provisions of this section, in these provisions “the appropriate enactment”, in relation to land falling within any of the specified descriptions, means the enactment which provides for the compulsory acquisition of land as being land falling within that description or, as respects the description contained in paragraph (i) of section 181(1) of this Act, the enactment under which the compulsory purchase order referred to in that paragraph was made.

• (2) In relation to land falling within the description contained in section 181(1)(b) of this Act an enactment shall, for the purposes of subsection (1) of this section be taken to be an enactment which provides for the compulsory acquisition of land as being land falling within that description if—

• (a) the enactment provides for the compulsory acquisition of land for the purposes of the functions which are indicated in the development plan as being the functions for the purposes of which the land is allocated or is proposed to be developed; or

• (b) where no particular functions are so indicated in the development plan, the enactment provides for the compulsory acquisition of land for the purposes of any of the functions of the government department, local authority or other body for the purposes of whose functions the land is allocated or is defined as the site of proposed development.

• (3) Where, in accordance with the circumstances by virtue of which any land falls within any of the specified descriptions, it is indicated that the land is proposed to be acquired for roads purposes, any enactment under which a roads authority are or (subject to the fulfilment of the relevant conditions) could be authorised to acquire that land compulsorily for roads purposes shall, for the purposes of subsection (1) of this section, be taken to be an enactment providing for the compulsory acquisition of that land as being land falling within the description in question.

• (4) In subsection (3) of this section the reference to the fulfilment of the relevant conditions is a reference to such one or more of the following as are applicable to the circumstances in question, that is to say—

• (aa) the coming into operation of any requisite scheme or order under the Roads (Scotland) Act 1984;

• (c) the making or approval of any requisite plans.

• (5) If, apart from this subsection, two or more enactments would be the appropriate enactment in relation to any land for the purposes of these provisions, the appropriate enactment for those purposes shall be taken to be that one of those enactments under which, in the circumstances in question, it is most likely that (apart from these provisions) the land would have been acquired by the appropriate authority.

• (6) If any question arises as to which enactment is the appropriate enactment in relation to any land for the purposes of these provisions, that question shall be referred—

• (a) where the appropriate authority are a government department, to the Minister or Board in charge of that department;

• (b) where the appropriate authority are statutory undertakers, to the appropriate Minister; and

• (c) in any other case, to the Secretary of State,

and the decision of the Minister, Secretary of State or Board to whom a question is referred under this subsection shall be final.

General interpretation of these provisions

196

• (1) Subject to the following provisions of this section, in these provisions the following expressions have the meanings hereby assigned to them respectively, that is to say:—

• “the affected area”, in relation to an agricultural unit, means so much of that unit as, on the date of service, consists of land falling within any of the specified descriptions;

• “agricultural unit” means land which is occupied as a unit for agricultural purposes, including any dwellinghouse or other building occupied by the same person for the purpose of farming the land;

• “annual value”, in relation to a hereditament, means the value which, on the date of service, is shown in the valuation roll as the rateable value of that hereditament, except that, where the rateable value differs from the net annual value, it means the value which on that date is shown in the valuation roll as the net annual value thereof;

• “the claimant” has the meaning assigned to it by section 182(4) of this Act;

• “cottar” has the same meaning as in section 28(4) of the Crofters (Scotland) Act 1955;

• “crofter” has the same meaning as in section 3(2) of the Crofters (Scotland) Act 1955;

• “hereditament” means the aggregate of the lands and heritages (not being agricultural lands and heritages within the meaning of section 7 of the Valuation and Rating (Scotland) Act 1956) which form the subject of a single entry in the valuation roll for the time being in force for a valuation area;

• “special enactment” means a local enactment, or a provision contained in an Act other than a local or private Act, being a local enactment or provision authorising the compulsory acquisition of land specifically identified therein; and in this definition “local enactment” means a local or private Act, or an order confirmed by Parliament or brought into operation in accordance with special parliamentary procedure;

• “these provisions”, “the specified descriptions” and “blight notice” have the meanings assigned to them respectively by section 181(6) of this Act.

• (2) Where any land is on the boundary between two or more valuation areas, and accordingly—

• (a) different parts of that land form the subject of single entries in the valuation rolls for the time being in force for those areas respectively; but

• (b) if the whole of that land had been in one of those areas, it would have formed the subject of a single entry in the valuation roll for that area,

the whole of that land shall be treated, for the purposes of the definition of “hereditament” in subsection (1) of this section, as if it formed the subject of a single entry in the valuation roll for a valuation area.

• (3) Land which forms the subject of an entry in the valuation roll by reason only that it is land over which any shooting, fishing or other sporting rights are exercisable, or that it is land over which a right of exhibiting advertisements is let out or reserved, shall not be taken to be a hereditament within the said definition.

• (4) Where, in accordance with subsection (2) of this section, land whereof different parts form the subject of single entries in the valuation rolls for the time being in force for two or more valuation areas is treated as if it formed the subject of a single entry in the valuation roll for a valuation area, the definition of “annual value” in subsection (1) of this section shall apply as if any reference therein to a value shown in the valuation roll were a reference to the aggregate of the values shown (as rateable values or as net annual values, as the case may be) in those valuation rolls in relation to the different parts of that land.

• (5) In this section “date of service” has the same meaning as in section 192 of this Act.

Supplementary provisions

No withdrawal of constructive notice to treat

197

Without prejudice to the provisions of section 187(1) of this Act, the power conferred by section 39 of the Land Compensation (Scotland) Act 1963 to withdraw a notice to treat shall not be exercisable in the case of a notice to treat which is deemed to have been served by virtue of any of the provisions of this Part of this Act.

Part X — Highways

Stopping up and diversion of highways

Highways affected by development: orders by Secretary of State

198

• (1) The Secretary of State may by order authorise the stopping up or diversion of any road if he is satisfied that it is necessary to do so in order to enable development to be carried out in accordance with planning permission granted under Part III of this Act, or by virtue of Schedule 32 to the Local Government, Planning and Land Act 1980, or to be carried out by a government department.

• (2) Any order under this section may make such provision as appears to the Secretary of State to be necessary or expedient for the construction or improvement of any other road, and may direct that the other road so constructed or improved—

• (a) shall be entered by the local roads authority in the list of public roads kept by them under section 1 of the Roads (Scotland) Act 1984; or

• (b) shall be deemed for the purposes of that Act to have been constructed by him under section 19 thereof,

and in the case of a road so deemed, that it shall, on such date as may be specified in the order, become a trunk road within the meaning of that Act.

• (3) Any order made under this section may contain such incidental and consequential provisions as appear to the Secretary of State to be necessary or expedient, including in particular—

• (a) provision for authorising the Secretary of State, or requiring any other authority or person specified in the order—

• (i) to pay, or to make contributions in respect of, the cost of doing any work provided for by the order or any increased expenditure to be incurred which is attributable to the doing of any such work;

• (ii)

• (b) provision for the preservation of any rights of statutory undertakers in respect of any apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across the road to which the order relates.

• (4) An order may be made under this section authorising the stopping up or diversion of any road which is temporarily stopped up or diverted under any other enactment.

• (5) The provisions of this section shall have effect without prejudice to—

• (a) any power conferred on the Secretary of State by any other enactment to authorise the stopping up or diversion of a road;

• (b) the provisions of section 3 of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947; or

• (c) the provisions of section 203(1)(a) of this Act.

Footpaths and bridleways affected by development: orders by local planning authorities

199

• (1) Subject to section 206 of this Act, a planning authority may by order authorise the stopping up or diversion of any footpath or bridleway if they are satisfied as mentioned in section 198(1) of this Act.

• (2) An order under this section may, if the planning authority are satisfied that it should do so, provide—

• (a) for the creation of an alternative footpath or bridleway for use as a replacement for the one authorised by the order to be stopped up or diverted, or for the improvement of an existing path or way for such use;

• (b) for authorising or requiring works to be carried out in relation to any footpath or bridleway for whose stopping up or diversion, creation or improvement, provision is made by the order;

• (c) for the preservation of any rights of statutory undertakers in respect of apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across any such footpath or bridleway;

• (d) for requiring any person named in the order to pay, or make contributions in respect of, the cost of carrying out any such works.

• (3) An order may be made under this section authorising the stopping up or diversion of a footpath or bridleway which is temporarily stopped up or diverted under any other enactment.

Highways crossing or entering route of proposed new highway, etc.

200

Conversion of highway into footpath or bridleway

Order extinguishing right to use vehicles on highway

201

• (1) The provisions of this section shall have effect where a competent authority by resolution adopt a proposal for improving the amenity of part of their area, being a proposal which involves a road in that area (being a road over which the public have a right of way with vehicles, but not a trunk road or a road classified as a principal road for the purposes of advances under section 3 of the Roads (Scotland) Act 1984) being changed to a footpath or bridleway

• (2) Subject to section 206 of this Act and to subsection (9) of this section, the competent authority may by order provide for the extinguishment of any right which persons may have to use vehicles on that road.

• (3) An order made under subsection (2) of this section may include such provision as the competent authority (after consultation with the planning authority and the roads authority, if different from the competent authority) thinks fit for permitting the use on the road of vehicles (whether mechanically propelled or not) in such cases as may be specified in the order, notwithstanding the extinguishment of any such right as is mentioned in that subsection; and any such provision may be framed by reference to particular descriptions of vehicles, or to particular persons by whom, or on whose authority, vehicles may be used, or to the circumstances in which, or the times at which, vehicles may be used for particular purposes.

• (4) No provision contained in, or having effect under, any enactment, being a provision prohibiting or restricting the use of footpaths or bridleways shall affect any use of a vehicle on a road in relation to which an order made under subsection (2) of this section has effect, where the use is permitted in accordance with provisions of the order included by virtue of subsection (3) of this section.

• (5) Any person who, at the time of an order under subsection (2) of this section coming into force, has an interest in land having lawful access to a road to which the order relates shall be entitled to be compensated by the competent authority in respect of any depreciation in the value of his interest which is directly attributable to the order and of any other loss or damage which is so attributable.

. . .

• (6) A claim for compensation under subsection (5) of this section shall be made to the competent authority within the time and in the manner prescribed by regulations under this Act.

• (7) Sections 167 and 168 of this Act shall have effect in relation to compensation under subsection (5) of this section as they have effect in relation to compensation to which those sections apply.

• (8) Without prejudice to section 273(3) of this Act, the competent authority may, subject to section 206 of this Act and to subsection (9) of this section by order revoke an order made by them in relation to a road under subsection (2) of this section; and the effect of the order shall be to reinstate any right to use vehicles on the road, being a right which was extinguished by virtue of the order under that subsection.

• (9) The competent authorities for the purposes of this section are local authorities, and a competent authority shall not make an order under subsection (2) or (8) of this section, if they are not the roads authority, without obtaining the consent of that authority.

• (10) An order under this section—

• (a) may make such provision as appears to the competent authority to be necessary or expedient for the construction or improvement of any other road (not being a trunk road such as is mentioned in paragraph (a), or a special road such as is mentioned in paragraph (b), of section 189A(1) of this Act), and may direct that the other road so constructed or improved shall be entered by the local roads authority in the list of public roads kept by the local roads authority under section 1 of the Roads (Scotland) Act 1984;

• (b) may contain such incidental and consequential provisions as appear to the competent authority to be necessary or expedient, including in particular—

• (i) provision for authorising the competent authority, or requiring any other authority or person specified in the order, to make such payments, repayments or contributions as are mentioned in paragraph (a) of subsection (3) of section 198 of this Act;

• (ii) such provision as is mentioned in paragraph (b) of that subsection.

• (11) The provisions of this section shall have effect without prejudice to—

• (a) any power conferred on the competent authority by any other enactment to authorise the stopping up or diversion of a road

• (b) the provisions of section 203(1)(b) of this Act.

Provision of amenity for highway reserved to pedestrians

202

• (1) Where in relation to a road an order has been made under section 201(2) of this Act, a competent authority may carry out and maintain any such works on or in the road, or place on or in it any such objects or structures, as appear to them to be expedient for the purposes of giving effect to the order or of enhancing the amenity of the road and its immediate surroundings or to be otherwise desirable for a purpose beneficial to the public.

• (2) The powers exercisable by a competent authority under this section shall extend to laying out any part of the road with lawns, trees, shrubs and flower-beds and to providing facilities for recreation or refreshment.

• (3) A competent authority may so exercise their powers under this section as to restrict the access of the public to any part of the road, but shall not so exercise them as—

• (a) to prevent persons from entering the road at any place where they could enter it before the order under section 201 of this Act was made; or

• (b) to prevent the passage of the public along the road; or

• (c) to prevent normal access by pedestrians to premises adjoining the road; or

• (d) to prevent any use of vehicles which is permitted by an order made under the said section 201 and applying to the road; or

• (e) to prevent statutory undertakers from having access to any works of theirs under, in, on, over, along or across the road; or

• (f) to prevent the operator of any telecommunications code system from having access to any works of his under, in, on, over, along or across the road.

• (4) An order under section 201(8) of this Act may make provision requiring the removal of any obstruction of the road resulting from the exercise by a competent authority of their powers under this section.

• (5) The competent authorities for the purposes of this section are local authorities, and a competent authority shall not exercise any powers conferred by this section, if they are not the roads authority, without obtaining the consent of that authority.

Extinguishment of rights of way

Extinguishment of public rights of way over land held for planning purposes

203

• (1) Where any land has been acquired or appropriated for planning purposes and is for the time being held by a local authority for the purposes for which it was acquired or appropriated—

• (a) the Secretary of State may by order extinguish any public right of way over the land if he is satisfied that an alternative right of way has been or will be provided or that the provision of an alternative right of way is not required;

• (b) subject to section 206 of this Act, the local authority may by order extinguish any such right over the land if they are satisfied as aforesaid.

• (2) In this section any reference to the acquisition or appropriation of land for planning purposes shall be construed in accordance with section 122(1) of this Act as if this section were in Part VI of this Act.

Procedure for making and confirming orders

Procedure for making of orders by Secretary of State

204

• (1) Before making an order under section 198, or 203(1)(a) of this Act the Secretary of State shall publish in at least one local newspaper circulating in the relevant area, and in the Edinburgh Gazette, a notice—

• (a) stating the general effect of the order;

• (b) specifying a place in the relevant area where a copy of the draft order and of any relevant map or plan may be inspected by any person free of charge at all reasonable hours during a period of twenty-eight days from the date of the publication of the notice; and

• (c) stating that, within that period, any person may by notice to the Secretary of State object to the making of the order.

• (2) Not later than the date on which that notice is so published, the Secretary of State—

• (a) shall serve a copy of the notice, together with a copy of the draft order and of any relevant map or plan, on every local authority in whose area any road or, as the case may be, any land to which the order relates is situated, and on any water, hydraulic power, gas or electricity undertakers having any cables, mains, pipes or wires laid along, across, under or over any road to be stopped up or diverted or, as the case may be, any land over which a right of way is to be extinguished, under the order; and

• (b) shall cause a copy of the notice to be displayed in a prominent position at the ends of so much of any road as is proposed to be stopped up or diverted or, as the case may be, of the right of way proposed to be extinguished under the order.

• (3) If before the end of the said period of twenty-eight days an objection is received by the Secretary of State from any local authority or undertakers on whom a notice is required to be served under subsection (2) of this section, or from any other person appearing to him to be affected by the order, and the objection is not withdrawn, the Secretary of State shall cause a local inquiry to be held:

• (4) After considering any objections to the order which are not withdrawn, and, where a local inquiry is held, the report of the person who held the inquiry, the Secretary of State (subject to subsection (5) of this section) may make the order either without modification or subject to such modifications as he thinks fit.

• (5) Where the order contains a provision requiring any such payment, repayment or contribution as is mentioned in section 198(3)(a) of this Act, and objection to that provision is duly made, in accordance with subsection (3) of this section, by an authority or person who would be required thereby to make such a payment, repayment or contribution, and the objection is not withdrawn, the order shall be subject to special parliamentary procedure.

• (6) Immediately after the order has been made, the Secretary of State shall publish, in the manner specified in subsection (1) of this section, a notice stating that the order has been made, and naming a place where a copy of the order may be seen at all reasonable hours; and the provisions of subsection (2) of this section shall have effect in relation to any such notice as they have effect in relation to a notice under subsection (1) of this section.

• (7) In this section “the relevant area”, in relation to an order, means the area in which any road or land to which the order relates is situated

Procedure in anticipation of planning permission, etc.

205

• (1) Where the Secretary of State would, if planning permission for any development had been granted under Part III of this Act, have power to make an order under section 198 of this Act authorising the stopping-up or diversion of a road in order to enable that development to be carried out, then, notwithstanding that such permission has not been granted, the Secretary of State may, in the circumstances specified in subsections (2) to (4) of this section, publish notice of the draft of such an order in accordance with section 204 of this Act.

• (2) The Secretary of State may publish such a notice as aforesaid where the relevant development is the subject of an application for planning permission and either—

• (a) that application is made by a local authority or statutory undertakers . . .; or

• (b) that application stands referred to the Secretary of State in pursuance of a direction under section 32 of this Act; or

• (c) the applicant has appealed to the Secretary of State under section 33 of this Act against a refusal of planning permission or of approval required under a development order, or against a condition of any such permission or approval.

• (3) The Secretary of State may publish such a notice as aforesaid where—

• (a) the relevant development is to be carried out by a local authority or, statutory undertakers and requires, by virtue of an enactment, the authorisation of a government department; and

• (b) the developers have made application to the department for that authorisation and also requested a direction under section 37 of this Act , that planning permission be deemed to be granted for that development.

• (4) The Secretary of State may publish such a notice as aforesaid where the planning authority certify that they have begun to take such steps, in accordance with regulations made by virtue of section 256 of this Act, as are requisite in order to enable them to obtain planning permission for the relevant development.

• (5) Section 204(4) of this Act shall not be construed as authorising the Secretary of State to make an order under section 198 of this Act of which notice has been published by virtue of subsection (1) of this section until planning permission is granted for the development which occasions the making of the order.

Confirmation of orders made by other authorities

206

• (1) An order made under section 198A or 199 of this Act by a planning authority , section 201 thereof by a competent authority or section 203(1)(b) thereof by a local authority, shall not take effect unless confirmed—

• (a) by the Secretry of State in a case where the order is opposed;

• (b) in any other case by the authority making the order.

• (2) The Secretary of State shall not confirm any such order unless satisfied as to every matter of which the authority making the order are required under section 198A 199 or 203(1)(b) (as the case may be) to be satisfied.

• (3) The time specified—

• (a) in an order under section 199 as the time from which a footpath or bridleway is to be stopped up or diverted; or

• (aa) in an order under section 198A as the time from which a road is to be stopped up or diverted; or

• (ab) in an order under section 201 as the time from which a right is to be extinguished; or

• (b) in an order under section 203(1)(b) as the time from which a right of way is to be extinguished,

shall not be earlier than confirmation of the order.

• (4) Schedule 18 to this Act shall have effect with respect to the confirmation of orders under section 198A, 199, , 201 or 203(1)(b) of this Act and the publicity for such orders after they are confirmed. The Schedule has no application as regards orders made by the Secretary of State.

Supplementary provisions

Compulsory acquisition of land in connection with highways

207

Concurrent proceedings in connection with highways

208

• (1) In relation to orders under sections 198, 198A, and 201 of this Act, regulations made under this Act may make provision for securing that any proceedings required to be taken for the purposes of the acquisition of land under section 104(1)(b)(i) of the Roads (Scotland) Act 1984 may be taken concurrently with any proceedings required to be taken for the purposes of the order.

• (2) In relation to orders under section 203(1)(a) or (b) of this Act, regulations made under this Act may make provision for securing—

• (a) that any proceedings required to be taken for the purposes of such an order may be taken concurrently with any proceedings required to be taken for the purposes of the acquisition of the land over which the right of way is to be extinguished; or

• (b) that any proceedings required to be taken for the purposes of the acquisition of any other land under section 104(1)(b)(ii) of the Roads (Scotland) Act 1984 may be taken concurrently with either or both of the proceedings referred to in the preceding paragraph.

Provisions as to telegraphic lines

209

• (1) Where in pursuance of an order under section 198, 198A or 201 of this Act a road is stopped up, diverted or changed and immediately before the date on which the order became operative there was under, in, on, over, along or across the road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the operator of that system shall have the same powers in respect of the telecommunication apparatus as if the order had not become operative; but any person entitled to land over which the road subsisted shall be entitled to require the alteration of the apparatus.

• (2) Where any such order provides for the improvement of a a road for which the Secretary of State is not the roads authority, and, immediately before the date on which the order became operative, there was under, in, on, over, along or across the road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the local roads authority shall be entitled to require the alteration of the apparatus.

This subsection does not have effect so far as it relates to the alteration of any telecommunication apparatus for the purpose of authority’s works within the meaning of Part IV of the New Roads and Street Works Act 1991.

• (3) Where an order under section 199 of this Act authorising the stopping up or diversion of any footpath or bridle-way is made by a planning authority or an order under section 203(1)(b) of this Act extinguishing a public right of way is made by a planning authority and at the time of the publication of the notice required by section 206(4) of, and Schedule 18 to, this Act any telecommunication apparatus was kept installed for the purposes of a telecommunications code system under, in, on, over, along or across the land over which the right of way subsisted—

• (a) the power of the operator of the system to remove the apparatus shall, notwithstanding the making of the order, be exercisable at any time not later than the end of the period of three months from the date on which the footpath or bridle-way is stopped up or diverted or, as the case may be, the right of way is extinguished and shall be exercisable in respect of the whole or any part of the apparatus after the end of that period if before the end of that period the operator of the system has given notice to the authority which made the order of his intention to remove the apparatus or that part of it, as the case may be;

• (b) the operator of the system may by notice given in that behalf to the authority which made the order not later than the end of the said period of three months abandon the telecommunication apparatus or any part of it;

• (c) subject to paragraph (b) of this subsection, the operator of the system shall be deemed at the end of that period to have abandoned any part of the apparatus which the operator has then neither removed nor given notice of his intention to remove;

• (d) the operator of the system shall be entitled to recover from the authority which made the order the expense of providing, in substitution for the apparatus and any other telecommunication apparatus connected with it which is rendered useless in consequence of the removal or abandonment of the first-mentioned apparatus, any telecommunication apparatus in such other place as the operator may require;

• (e) where under the preceding provisions of this subsection the operator of the system has abandoned the whole or any part of any telecommunication apparatus that apparatus or that part of it shall vest in the authority which made the order and shall be deemed, with its abandonment, to cease to be kept installed for the purposes of a telecommunications code system.

• (4) As soon as reasonably practicable after the making of any such order as is mentioned in subsection (3) above in circumstances in which that subsection applies in relation to the operator of any telecommunications code system, the authority which made the order shall give notice to the operator of the making of the order.

• (5) Paragraph 1(2) of the telecommunications code (alteration of apparatus to include moving, removal or replacement of apparatus) shall apply for the purposes of the preceding provisions of this section as it applies for the purposes of that code.

• (6) Paragraph 21 of the telecommunications code (restriction on removal of telecommunication apparatus) shall apply in relation to any entitlement conferred by this section to require the alteration, moving or replacement of any telecommunication apparatus as it applies in relation to an entitlement to require the removal of any such apparatus.

Application of s. 32 of Mineral Workings Act 1951 to orders under Part X

210

Part XI — Statutory Undertakers

Preliminary

Meaning of " operational land "

211

In this Act “operational land” means, in relation to statutory undertakers—

• (a) land which is used for the purpose of carrying on their undertaking; and

• (b) land in which an interest is held for that purpose,

not being land which, in respect of its nature and situation, is comparable rather with land in general than with land which is used, or in which interests are held, for the purpose of the carrying on of statutory undertakings.

Cases in which land is to be treated as not being operational land

212

• (1) Where an interest in land is held by statutory undertakers for the purpose of carrying on their undertaking and—

• (a) the interest was acquired by them on or after 8th December 1969; or

• (b) it was held by them immediately before that date but the circumstances were then such that the land did not fall to be treated as operational land for the purposes of the Act of 1947,

then subsection (2) of this section shall have effect for the purpose of determining whether the land is to be treated as operational land for the purposes of this Act and shall so have effect notwithstanding the definition of operational land in section 211 of this Act.

• (2) The land shall not be treated as operational land for the purposes of this Act unless one or both of the following conditions are satisfied with respect to it, namely—

• (a) there is, or at some time has been, in force with respect to the land a specific planning permission for its development and that development, if carried out, would involve or have involved the use of the land for the purpose of the carrying on of the statutory undertakers’ undertaking; or

• (b) the undertakers’ interest in the land was acquired by them as the result of a transfer under the provisions of the Gas Act 1986, the Airports Act 1986 or the Transport Act 1968 from other statutory undertakers and the land was, immediately before transfer, operational land of those other undertakers.

• (3) A specific planning permission for the purpose of subsection (2)(a) of this section is a planning permission—

• (a) granted on an application in that behalf under Part III of this Act or the enactments previously in force and replaced by that Part of this Act; or

• (b) granted by provisions of a development order granting planning permission generally for development which has received specific parliamentary approval; or

• (c) granted by a special development order in respect of development specifically described in the order; or

• (d) deemed to be granted by virtue of a direction of a government department under section 37 of this Act or section 32 of the Act of 1947;

and the reference in paragraph (b) of this subsection to development which has received specific parliamentary approval shall be construed as referring to development authorised by a local or private Act of Parliament or by an order approved by both Houses of Parliament or by an order which has been brought into operation in accordance with the provisions of the Statutory Orders (Special Procedure) Act 1945, being an Act or order which designates specifically both the nature of the development thereby authorised and the land upon which it may be carried out.

Meaning of " the appropriate Minister "

213

• (1) In this Act “the appropriate Minister”—

• (a) in relation to statutory undertakers carrying on any railway, light railway, tramway, road transport, dock, harbour or pier undertaking, the Secretary of State for Transport;

• (b) in relation to statutory undertakers carrying on an undertaking for the supply of hydraulic power, the Secretary of State for Energy;

• (c) in relation to the Civil Aviation Authority or statutory undertakers carrying on any lighthouse undertaking, the Secretary of State for Trade;

• (d) in relation to the Post Office, the Secretary of State for Industry;

• (e) in relation to statutory undertakers carrying on an undertaking for the supply of water, the Secretary of State for Scotland; and

• (f) in relation to any other statutory undertakers, the Secretary of State for the Environment.

• (2) This Act shall have effect as if references to the Secretary of State and the appropriate Minister—

• (a) were references to the Secretary of State and the appropriate Minister, if the appropriate Minister is not the one concerned as the Secretary of State; and

• (b) were references to the one concerned as the Secretary of State alone, if he is also the appropriate Minister;

and similarly with references to a Minister and the appropriate Minister and with any provision requiring the Secretary of State to act jointly with the appropriate Minister.

General provisions

Applications for planning permission by statutory undertakers

214

• (1) Where—

• (a) an application for planning permission to develop land to which this subsection applies is made by statutory undertakers and is referred to the Secretary of State under Part III of this Act; or

• (b) an appeal is made to the Secretary of State under Part III of this Act from the decision on such an application; or

• (c) such an application is deemed to be made under subsection (7) of section 85 of this Act on an appeal under that section by statutory undertakers,

the application or appeal shall be dealt with by the Secretary of State and the appropriate Minister.

• (2) Subsection (1) of this section applies—

• (a) to operational land; and

• (b) to land in which the statutory undertakers hold, or propose to acquire, an interest with a view to its being used for the purpose of carrying on their undertaking where the planning permission, if granted on the application or appeal, would be for development involving the use of the land for that purpose.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) Notwithstanding anything in Part III of this Act, planning permission to develop operational land of statutory undertakers shall not, except with their consent, be granted subject to conditions requiring that any buildings or works authorised by the permission shall be removed, or that any use of the land so authorised shall be discontinued, at the end of a specified period.

• (5) Subject to the provisions of this Part of this Act as to compensation, the provisions of this Act shall apply to an application which is dealt with under this section by the Secretary of State and the appropriate Minister as if it had been dealt with by the Secretary of State.

Development requiring sanction of government department

215

• (1) Where the sanction of a government department is required in respect of any development of operational land, then, except where that sanction has been granted without any direction as to the grant of planning permission, the Secretary of State and the appropriate Minister shall not be required to deal with an application for planning permission under section 214(1) of this Act.

• (2) The provisions of subsection (3) of section 37 of this Act shall have effect for the purposes of this section as they have effect for the purposes of that section.

Revocation or modification of permission to develop operational land

216

In relation to any planning permission, granted on the application of statutory undertakers, for the development of operational land, the provisions of Part III of this Act with respect to the revocation and modification of planning permission shall have effect as if, for any reference therein to the Secretary of State, there were substituted a reference to the Secretary of State and the appropriate Minister.

Order requiring discontinuance of use etc. of operational land

217

The provisions of Part III of this Act with respect to the making of orders requiring the discontinuance of any use of land or imposing conditions on the continuance thereof, or requiring buildings or works on land to be altered or removed, shall have effect, in relation to operational land of statutory undertakers, as if, for any reference therein to the Secretary of State, there were substituted a reference to the Secretary of State and the appropriate Minister.

Acquisition of land of statutory undertakers

218

• (1) This section applies to any compulsory purchase order under this Act authorising the acquisition of land which has been acquired by statutory undertakers for the purposes of their undertaking.

• (2) Paragraph 10 (protection of land of statutory undertakers) of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall not apply to such an order confirmed or made by the appropriate Minister jointly with the Minister or Ministers who would (apart from this subsection) have power to make or confirm it.

Extinguishment of rights of way, and rights as to apparatus, of statutory undertakers

219

• (1) Where any land has been acquired by a Minister, a Planning authority or statutory undertakers under Part VI of this Act or compulsorily under any other enactment, or has been appropriated by a planning authority for planning purposes, and—

• (a) there subsists over that land a right vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking, being a right of way or a right of laying down, erecting, continuing or maintaining apparatus on, under or over the land; or

• (b) there is on, under or over the land apparatus vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking,

the acquiring or appropriating authority, if satisfied that the extinguishment of the right or, as the case may be, the removal of the apparatus, is necessary for the purpose of carrying out any development with a view to which the land was acquired or appropriated, may serve on the statutory undertakers a notice stating that, at the end of the period of twenty-eight days from the date of service of the notice or such longer period as may be specified therein, the right will be extinguished or requiring that, before the end of such period as aforesaid, the apparatus shall be removed.

• (2) The statutory undertakers on whom a notice is served under subsection (1) of this section may, before the end of the period of twenty-eight days from the service of the notice, serve a counter-notice on the acquiring or appropriating authority stating that they object to all or any of the provisions of the notice and specifying the grounds of their objection.

• (3) If no counter-notice is served under subsection (2) of this section—

• (a) any right to which the notice relates shall be extinguished at the end of the period specified in that behalf in the notice; and

• (b) if, at the end of the period so specified in relation to any apparatus, any requirement of the notice as to the removal of the apparatus has not been complied with, the acquiring or appropriating authority may remove the apparatus and dispose of it in any way the authority may think fit.

• (4) If a counter-notice is served under subsection (2) of this section on a planning authority or on statutory undertakers, the authority or undertakers may either withdraw the notice (without prejudice to the service of a further notice) or may apply to the Secretary of State and the appropriate Minister for an order under this section embodying the provisions of the notice, with or without modification.

• (5) If a counter-notice is served under subsection (2) of this section on a Minister, he may withdraw the notice (without prejudice to the service of a further notice) or he and the appropriate Minister may make an order under this section embodying the provisions of the notice, with or without modification.

• (6) In this section any reference to the appropriation of land for planning purposes shall be construed in accordance with section 122(1) of this Act as if this section were in Part VI of this Act.

• (7) In subsection (1) above—

• (a) the references in paragraph (a) to a right vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking shall include a reference to a right conferred by or in accordance with the telecommunications code on the operator of a telecommunications code system; and

• (b) the reference in paragraph (b) to apparatus vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking shall include a reference to telecommunication apparatus kept installed for the purposes of any such system;

and for the purposes of this subsection, in this section (except, without prejudice to section 35(4) of the Telecommunications Act 1984, in those paragraphs and the words preceding them) and in sections 220, 226(2) and 227 of this Act references to statutory undertakers shall have effect as references to the operator of any such system, references, in relation to such an operator, to the carrying on of his undertaking shall have effect as references to the running of the telecommunications code system in question and references to the appropriate Minister shall have effect as references to the Secretary of State for Trade and Industry.

Orders under s. 219

220

• (1) Where a Minister and the appropriate Minister propose to make an order under section 219(5) of this Act, they shall prepare a draft of the order.

• (2) Before making an order under subsection (4) or subsection (5) of section 219 of this Act, the Ministers proposing to make the order—

• (a) shall afford to the statutory undertakers on whom notice was served under subsection (1) of that section an opportunity of objecting to the application for, or proposal to make, the order; and

• (b) if any objection is made, shall cause an inquiry to be held,

and may then, if they think fit, make the order in accordance with the application or in accordance with the draft order, as the case may be, either with or without modification.

• (3) Where an order is made under section 219 of this Act—

• (a) any right to which the order relates shall be extinguished at the end of the period specified in that behalf in the order; and

• (b) if, at the end of the period so specified in relation to any apparatus, any requirement of the order as to the removal of the apparatus has not been complied with, the acquiring or appropriating authority may remove the apparatus and dispose of it in any way the authority may think fit.

Notice for same purposes as s. 219 but given by statutory undertakers to developing authority

221

• (1) Subject to the provisions of this section, where land has been acquired or appropriated as mentioned in section 219(1) of this Act, and—

• (a) there is on, under or over the land any apparatus vested in or belonging to statutory undertakers; and

• (b) the undertakers claim that development to be carried out on the land is such as to require, on technical or other grounds connected with the carrying on of their undertaking, the removal or re-siting of the apparatus affected by the development,

the undertakers may serve on the acquiring or appropriating authority a notice claiming the right to enter on the land and carry out such works for the removal or re-siting of the apparatus or any part of it as may be specified in the notice.

• (2) Where, after the land has been acquired or appropriated as aforesaid, development of the land is begun to be carried out, no notice under this section shall be served later than twenty-one days after the beginning of the development.

• (3) Where a notice is served under this section, the authority on whom it is served may, before the end of the period of twenty-eight days from the date of service, serve on the statutory undertakers a counter-notice stating that they object to all or any of the provisions of the notice and specifying the grounds of their objection.

• (4) If no counter-notice is served under subsection (3) of this section, the statutory undertakers shall, after the end of the period of twenty-eight days therein mentioned, have the rights claimed in their notice.

• (5) If a counter-notice is served under subsection (3) of this section, the statutory undertakers who served the notice under this section may either withdraw it or may apply to the Secretary of State and the appropriate Minister for an order under this section conferring on the undertakers the rights claimed in the notice or such modified rights as the Secretary of State and the appropriate Minister think it expedient to confer on them.

• (6) Where, by virtue of this section or of an order of Ministers thereunder, statutory undertakers have the right to execute works for the removal or re-siting of apparatus, they may arrange with the acquiring or appropriating authority for the works to be carried out by that authority, under the superintendence of the undertakers, instead of by the undertakers themselves.

• (7) In subsection (1)(a) above the reference to apparatus vested in or belonging to statutory undertakers shall include a reference to telecommunication apparatus kept installed for the purposes of a telecommunications code system; and, for the purposes of this subsection, in this section references (except in the said subsection (1)(a)) to statutory undertakers shall have effect as references to the operator of any such system and references to the appropriate Minister shall have effect as references to the Secretary of State for Trade and Industry.

Extension or modification of functions of statutory undertakers

222

• (1) The powers conferred by this section shall be exercisable where, on a representation made by statutory undertakers, it appears to the Secretary of State and the appropriate Minister to be expedient that the powers and duties of those undertakers should be extended or modified, in order—

• (a) to secure the provision of services which would not otherwise be provided, or satisfactorily provided, for any purpose in connection with which a planning authority or Minister may be authorised under Part VI of this Act to acquire land or in connection with which any such person may compulsorily acquire land under any other enactment; or

• (b) to facilitate an adjustment of the carrying on of the undertaking necessitated by any of the acts and events mentioned in subsection (2) of this section.

• (2) The said acts and events are—

• (a) the acquisition under Part VI of this Act or compulsorily under any other enactment of any land in which an interest was held, or which was used, for the purpose of the carrying on of the undertaking of the statutory undertakers in question;

• (b) the extinguishment of a right or the imposition of any requirement by virtue of section 219 of this Act;

• (c) a decision on an application made by the statutory undertakers for planning permission to develop any such land as is mentioned in paragraph (a) of this subsection;

• (d) the revocation or modification of planning permission granted on any such application;

• (e) the making of an order under section 49 of this Act in relation to any such land.

• (3) The powers conferred by this section shall also be exercisable where, on a representation made by a planning authority or Minister, it appears to the Secretary of State and the appropriate Minister to be expedient that the powers and duties of statutory undertakers should be extended or modified, in order to secure the provision of new services, or the extension of existing services, for any purpose in connection with which the planning authority or Minister making the representation may be authorised under Part VI of this Act to acquire land or in Connection with which the local authority or Minister may compulsorily acquire land under any other enactment.

• (4) Where the powers conferred by this section are exercisable, the Secretary of State and the appropriate Minister may, if they think fit, by order provide for such extension or modification of the powers and duties of the statutory undertakers as appears to them to be requisite in order to secure the services in question, as mentioned in subsection (1)(a) or (3) of this section, or to facilitate the adjustment in question, as mentioned in subsection (1)(b) of this section, as the case may be.

• (5) Without prejudice to the generality of subsection (4) of this section, an order under this section may make provision—

• (a) for empowering the statutory undertakers to acquire (whether compulsorily or by agreement) any land specified in the order, and to erect or construct any buildings or works so specified;

• (b) for applying, in relation to the acquisition of any such land or the construction of any such works, enactments relating to the acquisition of land and the construction of works;

• (c) where it has been represented that the making of the order is expedient for the purposes mentioned in subsection (1)(a) or (3) of this section, for giving effect to such financial arrangements between the planning authority or Minister and the statutory undertakers as they may agree, or as, in default of agreement, may be determined to be equitable in such manner and by such tribunal as may be specified in the order;

• (d) for such incidental and supplemental matters as appear to the Secretary of State and the appropriate Minister to be expedient for the purposes of the order.

Procedure in relation to orders under s. 222

223

• (1) As soon as may be after making such a representation as is mentioned in subsection (1) or subsection (3) of section 222 of this Act—

• (a) the statutory undertakers, in a case falling within subsection (1) of that section; or

• (b) the planning authority or Minister making the representation, in a case falling within subsection (3) thereof,

shall publish, in such form and manner as may be directed by the Secretary of State and the appropriate Minister, a notice giving such particulars as may be so directed of the matters to which the representation relates, and specifying the time (not being less than twenty-eight days) within which, and the manner in which, objections to the making of an order on the representation may be made, and shall serve a like notice on any persons appearing from the valuation roll to have an interest in any land to which the representation relates, and shall also, if it is so directed by the Secretary of State and the appropriate Minister, serve a like notice on such persons, or persons of such classes, as may be so directed.

• (2) Orders under section 222 of this Act shall be subject to special parliamentary procedure.

Relief of statutory undertakers from obligations rendered impracticable

224

• (1) Where, on a representation made by statutory undertakers, the appropriate Minister is satisfied that the fulfilment of any obligation incurred by those undertakers in connection with the carrying on of their undertaking has been rendered impracticable by an act or event to which this subsection applies, the appropriate Minister may, if he thinks fit, by order direct that the statutory undertakers shall be relieved of the fulfilment of that obligation, either absolutely or to such extent as may be specified in the order.

• (2) Subsection (1) of this section applies to the following acts and events, that is to say—

• (a) the compulsory acquisition under Part VI of this Act or under any other enactment of any land in which an interest was held, or which was used, for the purpose of the carrying on of the undertaking of the statutory undertakers; and

• (b) the acts and events specified in section 222(2)(b) to (e) of this Act.

• (3) As soon as may be after making a representation to the appropriate Minister under subsection (1) of this section, the statutory undertakers shall, as may be directed by the appropriate Minister, either publish (in such form and manner as may be so directed) a notice giving such particulars as may be so directed of the matters to which the representation relates, and specify the time (not being less than twenty-eight days) within which, and the manner in which, objections to the making of an order on the representation may be made, or serve such a notice on such persons, or persons of such classes, as may be so directed, or both publish and serve such notices.

• (4) If any objection to the making of an order under this section is duly made and is not withdrawn before the order is made, the order shall be subject to special parliamentary procedure.

• (5) Immediately after an order is made under this section by the appropriate Minister, he shall publish a notice stating that the order has been made and naming a place where a copy of it may be seen at all reasonable hours, and shall serve a like notice—

• (a) on any person who duly made an objection to the order and has sent to the appropriate Minister a request in writing to serve him with the notice required by this subsection, specifying an address for service; and

• (b) on such other persons (if any) as the appropriate Minister thinks fit.

• (6) Subject to subsection (7) of this section, and to the provisions of Part XII of this Act, an order under this section shall become operative, on the date on which the notice required by subsection (5) of this section is first published.

• (7) Where in accordance with subsection (4) of this section the order is subject to special parliamentary procedure, subsection (6) of this section shall not apply.

Objections to orders under ss. 222 and 224

225

• (1) For the purposes of sections 222 and 224 of this Act, an objection to the making of an order thereunder shall not be treated as duly made unless—

• (a) the objection is made within the time and in the manner specified in the notice required by the section under which the order is proposed to be made; and

• (b) a statement in writing of the grounds of the objection is comprised in or submitted with the objection.

• (2) Where an objection to the making of such an order is duly made in accordance with subsection (1) of this section and is not withdrawn, the following provisions of this section shall have effect in relation thereto:

• (3) Unless the appropriate Minister decides apart from the objection not to make the order, or decides to make a modification which is agreed to by the objector as meeting the objection, the appropriate Minister, before making a final decision, shall consider the grounds of the objection as set out in the statement, and may, if he thinks fit, require the objector to submit within a specified period a further statement in writing as to any of the matters to which the objection relates.

• (4) In so far as the appropriate Minister, after considering the grounds of the objection as set out in the original statement and in any such further statement, is satisfied that the objection relates to a matter which can be dealt with in the assessment of compensation, the appropriate Minister may treat the objection as irrelevant for the purpose of making a final decision.

• (5) If, after considering the grounds of the objection as set out in the original statement and in any such further statement, the appropriate Minister is satisfied that, for the purpose of making a final decision, he is sufficiently informed as to the matters to which the objection relates, or if, where a further statement has been required, it is not submitted within the specified period, the appropriate Minister may make a final decision without further investigation as to those matters.

• (6) Subject to subsections (4) and (5) of this section, the appropriate Minister, before making a final decision, shall afford to the objector an opportunity of appearing before, and being heard by, a person appointed for the purpose by the appropriate Minister; and if the objector avails himself of that opportunity, the appropriate Minister shall afford an opportunity of appearing and being heard on the same occasion to the statutory undertakers, planning authority or Minister on whose representation the order is proposed to be made, and to any other persons to whom it appears to the appropriate Minister to be expedient to afford such an opportunity.

• (7) Notwithstanding anything in the preceding provisions of this section, if it appears to the appropriate Minister that the matters to which the objection relates are such as to require investigation by public local inquiry before he makes a final decision, he shall cause such an inquiry to be held; and where he determines to cause such an inquiry to be held, any of the requirements of those provisions to which effect has not been given at the time of that determination shall be dispensed with.

• (8) In this section any reference to making a final decision, in relation to an order, is a reference to deciding whether to make the order or what modification (if any) ought to be made.

Compensation

Right to compensation in respect of certain decisions and orders

226

• (1) Statutory undertakers shall, subject to the following provisions of this Part of this Act, be entitled to compensation from the planning authority—

• (a) in respect of any decision made in accordance with section 214 of this Act whereby planning permission to develop operational land of those undertakers is refused or is granted subject to conditions where—

• (i) planning permission for that development would have been granted by a development order but for a direction given under such an order that planning permission so granted should not apply to the development; and

• (ii) it is not development which has received specific parliamentary approval (within the meaning given to that expression by section 212(3) of this Act);

• (b) in respect of any order under section 42 of this Act, as modified by section 216 thereof, whereby planning permission, granted on the application of those undertakers for the development of any such land, is revoked or modified.

• (2) Where, by virtue of section 219 of this Act, any right vested in or belonging to statutory undertakers is extinguished, or any requirement is imposed on statutory undertakers, those undertakers shall be entitled to compensation from the acquiring or appropriating authority at whose instance the right was extinguished or the requirement imposed.

• (3) Where works are carried out for the removal or re-siting of statutory undertakers’ apparatus, being works which the undertakers have the right to carry out by virtue of section 221 of this Act or an order of Ministers thereunder, the undertakers shall be entitled to compensation from the acquiring or appropriating authority.

• (4) Notwithstanding anything in subsection (1) of this section, if the decision or order in question relates to land acquired by the statutory undertakers after 7th January 1947, and the Secretary of State and the appropriate Minister are satisfied, having regard to the nature, situation and existing development of the land and of any neighbouring land, and to any other material considerations, that it is unreasonable that compensation should be recovered in respect of that decision or order, they may include therein a direction that subsection (1) of this section shall not apply to that decision or order.

• (5) For the purposes of this section the conditions referred to in sections 38 and 39 of this Act shall be disregarded

Measure of compensation to statutory undertakers

227

• (1) Where statutory undertakers are entitled to compensation—

• (a) as mentioned in subsection (1), (2) or (3) of section 226 of this Act; or

• (b) under the provisions of section 159 in respect of an order made under section 49 , 49A or 49B of this Act as modified by section 217 thereof; or

• (c) in respect of a compulsory acquisition of land which has been acquired by those undertakers for the purposes of their undertaking, where the first-mentioned acquisition is effected under a compulsory purchase order confirmed or made without the appropriate Minister’s certificate;

the amount of the compensation shall (subject to section 228 of this Act) be an amount calculated in accordance with the following provisions of this section.

• (2) The said amount, subject to subsections (3) and (4) of this section, shall be the aggregate of the following amounts, that is to say—

• (a) the amount of any expenditure reasonably incurred in acquiring land, providing apparatus, erecting buildings or doing work for the purpose of any adjustment of the carrying on of the undertaking rendered necessary by the proceeding giving rise to compensation;

• (b) whichever of the following is applicable, namely—

• (i) where such an adjustment is made, the estimated amount of any decrease in net receipts from the carrying on of the undertaking pending the adjustment, in so far as the decrease is directly attributable to the proceeding giving rise to compensation, together with such amount as appears reasonable compensation for any estimated decrease in net receipts from the carrying on of the undertaking in the period after the adjustment has been completed, in so far as the decrease is directly attributable to the adjustment;

• (ii) where no such adjustment is made, such amount as appears reasonable compensation for any estimated decrease in net receipts from the carrying on of the undertaking which is directly attributable to the proceeding giving rise to compensation;

• (c) where the compensation is under section 226(2) of this Act, and is in respect of the imposition of a requirement to remove apparatus, the amount of any expenditure reasonably incurred by the statutory undertakers in complying with the requirement, reduced by the value after removal of the apparatus removed.

• (3) Where any such adjustment as is mentioned in paragraph (a) of subsection (2) of this section is made, the aggregate amount mentioned in that subsection shall be reduced by such amount (if any) as appears to the tribunal referred to in subsection (2) of section 229 of this Act to be appropriate to offset—

• (a) the estimated value of any property (whether moveable or heritable) belonging to the statutory undertakers and used for the carrying on of their undertaking which, in consequence of the adjustment, ceases to be so used, in so far as the value of the property has not been taken into account under paragraph (c) of that subsection; and

• (b) the estimated amount of any increase in net receipts from the carrying on of the undertaking in the period after the adjustment has been completed, in so far as that amount has not been taken into account under paragraph (b) of that subsection and is directly attributable to the adjustment,

and by any further amount which appears to the tribunal referred to in subsection (2) of section 229 of this Act to be appropriate, having regard to any increase in the capital value of heritable property belonging to the statutory undertakers which is directly attributable to the adjustment, allowance being made for any reduction made under paragraph (b) of this subsection.

• (4) Where the compensation is under section 226(3) of this Act and the acquiring or appropriating authority carry out the works, then, in addition to any reduction falling to be made under subsection (3) of this section, the aggregate amount mentioned in subsection (2) of this section shall be reduced by the actual cost to the authority of carrying out the works.

• (5) References in this section to a decrease in net receipts shall be construed as references to the amount by which a balance of receipts over expenditure is decreased, or a balance of expenditure over receipts is increased, or, where a balance of receipts over expenditure is converted into a balance of expenditure over receipts, as references to the aggregate of the two balances; and references to an increase in net receipts shall be construed accordingly.

• (6) In this section—

• “proceeding giving rise to compensation” means—except in relation to compensation under section 226(3) of this Act, the particular action (that is to say, the decision, order, extinguishment of a right, imposition of a requirement, or acquisition) in respect of which compensation falls to be assessed, as distinct from any development or project in connection with which that action may have been taken;in relation to compensation under the said section 226(3), the circumstances making it necessary for the apparatus in question to be removed or re-sited;

• “the appropriate Minister’s certificate” has the same meaning as in section 218 of this Act.

Exclusion of s. 227 at option of statutory undertakers

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• (1) Where statutory undertakers are entitled to compensation in respect of such a compulsory acquisition as is mentioned in section 227(1)(c) of this Act, the statutory undertakers may by notice in writing under this section elect that the compensation shall be ascertained in accordance with the enactments (other than rule (5) of the rules set out in section 12 of the Land Compensation (Scotland) Act 1963) which would be applicable apart from section 227 of this Act; and if the undertakers so elect the compensation shall be ascertained accordingly.

• (2) An election under this section may be made either in respect of the whole of the land comprised in the compulsory acquisition in question or in respect of part of that land.

• (3) Any notice under this section shall be given to the acquiring authority before the end of the period of two months from the date of service of notice to treat in respect of the interest of the statutory undertakers.

Procedure for assessing compensation where s. 227 applies

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• (1) Where the amount of any such compensation as is mentioned in subsection (1) of section 227 of this Act falls to be ascertained in accordance with the provisions of that section, the compensation shall, in default of agreement, be assessed by the tribunal referred to in subsection (2) of this section, if apart from this section it would not fall to be so assessed.

• (2) The tribunal referred to in this subsection shall consist of four persons, namely—

• (a) an advocate or solicitor of not less than seven years’ standing, appointed by the Lord President of the Court of Session to act as chairman;

• (b) two persons appointed by the Secretary of State as persons having special knowledge and experience of the valuation of land and of civil engineering respectively; and

• (c) for each claim coming before the tribunal, a person selected by the appropriate Minister, as a person having special knowledge and experience of statutory undertakings of the kind carried on by the claimant, from the members of a panel appointed by appropriate Ministers of persons appearing to them to have such knowledge and experience of statutory undertakings.

• (3) The Treasury may pay out of moneys provided by Parliament to the members of the tribunal such remuneration (whether by way of salaries or by way of fees), and such allowances, as the Treasury may determine.

• (4) For the purposes of any proceedings arising before the tribunal referred to in subsection (2) of this section in respect of compensation falling to be ascertained as mentioned in subsection (1) of this section, the provisions of sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply as they apply to proceedings on a question referred to the Lands Tribunal under section 8 of that Act, but with the substitution in section 11 of that Act, for references to the acquiring authority, of references to the person from whom the compensation is claimed.

Supplementary provisions

Special provisions as to display of advertisements on operational land

230

• (1) The provisions of this Part of this Act specified in subsection (2) of this section do not apply in relation to the display of advertisements on operational land of statutory undertakers.

• (2) The said provisions are sections 214 to 217 and 226(1) and (4) of this Act.

Part XII — Validity of Planning Instruments and Decisions and Proceedings Relating Thereto

Validity of development plans and certain orders, decisions and directions

231

• (1) Except as provided by the following provisions of this Part of this Act, the validity of—

• (a) a structure plan, a local plan or any alteration, repeal or replacement of any such plan, whether before or after the plan, alteration, repeal or replacement has been approved or adopted; or

• (aa) a simplified planning zone scheme or any alteration of any such scheme whether before or after the adoption or approval of the scheme or alteration; or

• (b) an order under any provision of Part X of this Act, whether before or after the order has been made; or

• (c) an order under section 224 of this Act, whether before or after the order has been made; or

• (d) any such order as is mentioned in subsection (2) of this section, whether before or after it has been confirmed; or

• (e) any such action on the part of the Secretary of State as is mentioned in subsection (3) of this section,

shall not be questioned in any legal proceedings whatsoever.

• (2) The orders referred to in subsection (1)(d) of this section are orders of any of the following descriptions, that is to say—

• (a) any order under section 42 of this Act or under the provisions of that section as applied by or under any other provision of this Act . . .;

• (b) any order under section 49 of this Act; or under the provisions of that section as applied by or under any other provision of this Act . . ..;

• (ba) any order under section 49A of this Act;

• (bb) any order under section 49B of this Act;

• (c) any tree preservation order;

• (d) any order made in pursuance of section 61(4) of this Act;

• (e)

• (f) any order under Part II of Schedule 10 to this Act.

• (3) The action referred to in subsection (1)(e) of this section is action on the part of the Secretary of State of any of the following descriptions, that is to say—

• (a) any decision of the Secretary of State on an application referred to him under section 32 of this Act;

• (b) any decision of the Secretary of State on an appeal under section 33 of this Act;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) any decision by the Secretary of State to confirm a completion notice under section 41 of this Act;

• (dd) any decision by the Secretary of State relating to an application for hazardous substances consent;

• (e) any decision of the Secretary of State relating to an application for consent under a tree preservation order, or relating to an application for consent under any regulations made in accordance with section 61 of this Act, or relating to any certificate or direction under any such order or regulations, whether it is a decision of the Secretary of State on appeal or a decision on an application referred to him for determination in the first instance;

• (ee) any decision of the Secretary of State on an appeal to him under section 63A of this Act against a waste land notice;

• (f) any decision of the Secretary of State on an appeal to him under section 85 of this Act against any enforcement notice;

• (g) any decision of the Secretary of State on an appeal under section 91(2) of this Act against the refusal or partial refusal of an application for a certificate under section 90 or 90A of this Act;

• (h) any decision of the Secretary of State on an appeal to him under section 93 of this Act against a listed building enforcement notice;

• (i) any decision of the Secretary of State to confirm a purchase notice or listed building purchase notice;

• (j) any decision of the Secretary of State not to confirm a purchase notice or listed building purchase notice, including any decision not to confirm such a notice in respect of part of the land to which it relates, and including any decision to grant any permission, or give any direction, in lieu of confirming such a notice, either wholly or in part;

• (k) any decision of the Secretary of State on an application referred to him under paragraph 4 of Schedule 10 to this Act (being an application for listed building consent for any works) or on an appeal under paragraph 7 of that Schedule or section 93 of this Act.

• (4) Nothing in this section shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State to take any such action as is mentioned in subsection (3) of this section.

Proceedings for questioning validity of structure plans, etc.

232