Housing and Regeneration Act 2008

• (a) the authority has served a notice under subsection (2) on the tenant, and

• (b) either—

• (i) the tenant has not requested a review of the kind mentioned in subsection (2)(e) within the period of 14 days beginning with the service of the notice,

• (ii) any such request has been withdrawn, or

• (iii) the authority has served a notice on the tenant under subsection (4)(b).

• (2) A notice under this subsection is a notice in writing stating—

• (a) that the authority has decided to serve a notice to quit on the tenant,

• (b) the effect of serving a notice to quit,

• (c) the reasons for the authority's decision,

• (d) when the authority is intending to serve the notice to quit, and

• (e) that the tenant has the right to request, within the period of 14 days beginning with the service of the notice under this subsection, a review of the authority's decision.

• (3) Subsection (4) applies if the tenant requests a review of the kind mentioned in subsection (2)(e) within the period of 14 days beginning with the service of the notice under subsection (2) and the request is not withdrawn.

• (4) The local housing authority must—

• (a) review its decision to serve a notice to quit on the tenant, and

• (b) serve a notice on the tenant informing the tenant of the decision of the authority on the review and the reasons for it.

• (5) The appropriate national authority may by regulations make provision about the procedure to be followed in connection with such a review.

• (6) Regulations under subsection (5) may, in particular—

• (a) specify the description of person who is to make the decision on a review,

• (b) specify the circumstances in which the tenant is entitled to an oral hearing on a review,

• (c) specify whether, and by whom, the tenant is entitled to be represented at such a hearing.

• (7) A notice under subsection (2), and a notice to quit, served by a local housing authority in respect of a family intervention tenancy must contain advice to the tenant as to how the tenant may be able to obtain assistance in relation to the notice.

• (8) The appropriate national authority may by regulations make provision about the type of advice to be provided in such notices.

• (9) In this section—

• “appropriate national authority” means—in relation to England, the Secretary of State, andin relation to Wales, the Welsh Ministers,

• “family intervention tenancy” has the same meaning as in paragraph 4ZA of Schedule 1 to the Housing Act 1985 (c. 68),

and other expressions used in this section and in paragraph 4ZA of that Schedule have the same meaning as in that paragraph.

• (10) This section does not apply to any tenancy granted before the coming into force of this section.

Possession orders

Possession orders relating to certain tenancies

299

Schedule 11 (which makes provision about possession orders and their effect on secure tenancies, assured tenancies, introductory tenancies and demoted tenancies including provision about the status of existing occupiers) has effect.

Leasehold enfranchisement

Right to acquire freehold: abolition of low rent test

300

• (1) In section 1(1) of the Leasehold Reform Act 1967 (c. 88) (right to enfranchisement or extension of long leaseholds)—

• (a) in paragraph (a) omit “at a low rent”,

• (b) before “and” at the end of paragraph (a) insert—

(aa) in the case of a right to acquire an extended lease, his long tenancy is a tenancy at a low rent;

, and

• (c) in paragraph (b) after “he has” insert

— (i) in the case of a right to acquire the freehold, been tenant of the house under a long tenancy for the last two years; and (ii) in the case of a right to acquire an extended lease,

.

• (2) In that Act—

• (a) in section 1(1A) (excluded tenancies)—

• (i) for “subsection (1)(a) and (b)” substitute “ subsection (1) ”, and

• (ii) omit “at a low rent”, and

• (b) omit—

• (i) section 1A(2) (certain deemed low rent tenancies),

• (ii) section 1AA (additional right to enfranchisement where tenancy not low rent tenancy), and

• (iii) section 4A (alternative rent limits for purposes of section 1A(2)).

Shared ownership leases: protection for certain leases

301

• (1) After paragraph 3 of Schedule 4A to the Leasehold Reform Act 1967 (exclusion from enfranchisement for certain shared ownership leases granted by housing associations) insert—

(3A) (1) A lease which does not fall within paragraph 3 is excluded from the operation of this Part of this Act if the lease— (a) meets the conditions mentioned in sub-paragraph (2); (b) meets any other prescribed conditions; and (c) does not fall within any prescribed exemptions. (2) The conditions referred to in sub-paragraph (1)(a) are that the lease— (a) was granted for a term of 99 years or more and is not (and cannot become) terminable except in pursuance of a provision for re-entry or forfeiture; (b) was granted at a premium, calculated by reference to the value of the house or the cost of providing it, of not less than 25 per cent, or such other percentage as may be prescribed, of the figure by reference to which it was calculated; (c) provides for the tenant to acquire additional shares in the house on terms specified in the lease and complying with such requirements as may be prescribed; (d) does not restrict the tenant's powers to mortgage or charge his interest in the house; (e) if it enables the landlord to require payment for outstanding shares in the house, does so only in such circumstances as may be prescribed; (f) provides for the tenant to acquire the landlord's interest on terms specified in the lease and complying with such requirements as may be prescribed; and (g) states the landlord's opinion that by virtue of this paragraph the lease is excluded from the operation of this Part of this Act. (3) In any proceedings the court may, if it considers that it is just and equitable to do so, treat a lease as meeting the conditions mentioned in sub-paragraph (2) despite the fact that the condition specified in paragraph (g) of that sub-paragraph is not met. Certain leases for the elderly

.

• (2) For the italic heading before paragraph 3 of that Schedule to that Act substitute— “ Certain housing association and other leases ”.

Shared ownership leases: protection for hard to replace houses

302

• (1) After paragraph 4 of Schedule 4A to the Leasehold Reform Act 1967 (c. 88) (exclusion from enfranchisement for certain shared ownership leases for the elderly) insert—

(4A) (1) A lease which does not fall within paragraph 3 or 3A is excluded from the operation of this Part of this Act if— (a) the lease meets the conditions mentioned in sub-paragraph (2); (b) any provision in the lease for the tenant to acquire the landlord's interest provides for the tenant to acquire the interest on terms specified in the lease and complying with such requirements as may be prescribed; (c) the lease meets any other prescribed conditions; (d) the lease does not fall within any prescribed exemptions; and (e) the house is in a protected area. (2) The conditions referred to in sub-paragraph (1)(a) are that the lease— (a) was granted for a term of 99 years or more and is not (and cannot become) terminable except in pursuance of a provision for re-entry or forfeiture; (b) was granted at a premium, calculated by reference to the value of the house or the cost of providing it, of not less than 25 per cent, or such other percentage as may be prescribed, of the figure by reference to which it was calculated; (c) provides for the tenant to acquire additional shares in the house on terms specified in the lease and complying with such requirements as may be prescribed; (d) does not restrict the tenant's powers to mortgage or charge his interest in the house; (e) if it enables the landlord to require payment for outstanding shares in the house, does so only in such circumstances as may be prescribed; and (f) states the landlord's opinion that by virtue of this paragraph the lease is excluded from the operation of this Part of this Act. (3) The appropriate national authority may by order made by statutory instrument designate an area as a protected area if it considers it appropriate to do so to support the provision in the area of houses, or descriptions of houses, which are available for occupation in accordance with shared ownership arrangements. (4) The appropriate national authority must publish the criteria for the time being in force which are to be taken into account by it in deciding whether to designate an area as a protected area. (5) Before making an order under sub-paragraph (3) the appropriate national authority must take such steps as it considers to be reasonable to consult those likely to be affected by the order. (6) In any proceedings the court may, if it considers that it is just and equitable to do so, treat a lease as meeting the conditions mentioned in sub-paragraph (2) despite the fact that the condition mentioned in paragraph (f) of that sub-paragraph is not met. (7) An order under this paragraph may contain such incidental, supplementary, transitory, transitional or saving provisions as the appropriate national authority considers appropriate. (8) In this paragraph “shared ownership arrangements” has the same meaning as in section 70 of the Housing and Regeneration Act 2008. (9) An instrument containing— (a) an order of the Secretary of State under this paragraph is subject to annulment in pursuance of a resolution of either House of Parliament; (b) an order of the Welsh Ministers under this paragraph is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

• (2) In paragraph 5 of that Schedule to that Act (power to prescribe matters by regulations)—

• (a) in sub-paragraph (1) for “Secretary of State” substitute “ appropriate national authority ”, and

• (b) in sub-paragraph (2)—

• (i) in paragraph (b) for “Secretary of State” substitute “ appropriate national authority ”,

• (ii) after “which” insert “ , in the case of regulations made by the Secretary of State, ” and

• (iii) after “Parliament” insert “ and, in the case of regulations made by the Welsh Ministers, shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales ”.

• (3) After paragraph 6 of that Schedule to that Act (interpretation) insert—

(7) In this Schedule “appropriate national authority” means— (a) in relation to England, the Secretary of State; and (b) in relation to Wales, the Welsh Ministers.

Service charges

Service charges: provision of information and designated accounts

303

Schedule 12 (which relates to the provision of information about service charges and to service charge funds) has effect.

Right to buy etc: miscellaneous

Exclusion of the right to buy: possession orders

304

• (1) For section 121(1) of the Housing Act 1985 (c. 68) (circumstances in which the right to buy cannot be exercised) substitute—

(1) The right to buy cannot be exercised if the tenant is subject to an order of the court for possession of the dwelling-house.

• (2) Subsection (1) does not apply where the tenant has served a notice under section 122 of that Act (tenant's notice claiming to exercise right to buy) before the coming into force of subsection (1) above and the notice is not withdrawn.

Exclusion of the right to buy: demolition notices

305

Schedule 13 (which makes provision about demolition notices) has effect.

Review of determination of value

306

• (1) The Housing Act 1985 is amended as follows.

• (2) After section 128 (determination of value by district valuer) insert—

(128A) (1) Subsection (2) applies if the value of a dwelling-house has been determined or re-determined under section 128 (“the section 128 determination”). (2) The district valuer may— (a) on the valuer's own initiative; or (b) at the request of the landlord or the tenant of the dwelling-house; serve on the landlord and the tenant a notice of intention to review the section 128 determination giving reasons for the intention (“a review notice”). (3) A request under subsection (2)(b) must— (a) be in writing; (b) state the reason it is being made; and (c) confirm that the landlord has not made to the tenant a grant of the kind mentioned in section 138(1) in respect of the claim by the tenant to exercise the right to buy in respect of the dwelling-house. (4) The landlord or the tenant may not make a request under subsection (2)(b) after the end of the period of 28 days beginning with the section 128(5) service date. (5) The district valuer must, before the end of the period of 14 days beginning with the day on which such a request is made, serve on the landlord and the tenant— (a) a review notice; or (b) a notice stating— (i) that the request was made; (ii) that the district valuer has decided not to comply with it; and (iii) the reasons for the decision. (6) A review notice may not be served after the end of the period of 42 days beginning with the section 128(5) service date. (7) A review notice may not be served in relation to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent the service of a review notice in relation to the re-determination). (8) A review notice may not be served if the landlord has made a grant of the kind mentioned in subsection (3)(c). (9) A person who makes a request under subsection (2)(b) must inform the district valuer if a grant of the kind mentioned in subsection (3)(c) is made during the period of 14 days mentioned in subsection (5). (10) Subsection (11) applies if the district valuer is considering whether to serve a review notice on the valuer's own initiative. (11) The landlord or the tenant must, if requested by the district valuer, inform the valuer whether a grant of the kind mentioned in subsection (3)(c) has been made. (12) In this section and section 128B— - “a review notice” has the meaning given by subsection (2); - “the section 128 determination” has the meaning given by subsection (1); - “the section 128(5) service date” means the day on which the landlord serves a notice on the tenant under section 128(5) in relation to the section 128 determination. (128B) (1) The district valuer must review the section 128 determination as soon as reasonably practicable after serving a review notice. (2) Subsection (3) applies if, following the review, the district valuer decides that neither of the withdrawal conditions is met. (3) The district valuer must, as soon as reasonably practicable, serve on the landlord and the tenant a notice stating— (a) the decision; (b) the reasons for it; and (c) that no further determination or (as the case may be) re-determination is to be made under this section. (4) Subsection (5) applies if, following the review, the district valuer decides that either withdrawal condition is met or both are met. (5) The district valuer must— (a) as soon as reasonably practicable, withdraw the section 128 determination by serving a further determination notice on the landlord and the tenant; and (b) make a further determination or (as the case may be) re-determination of the value of the dwelling-house at the relevant time. (6) Before making such a determination or re-determination, the district valuer must consider any representation made to the valuer by the landlord or the tenant before the end of the period of 14 days beginning with the day on which the further determination notice was served. (7) As soon as practicable after such a determination or re-determination has been made, the landlord must serve on the tenant a determination effect notice. (8) A determination effect notice is a notice stating— (a) the effect of the further determination or (as the case may be) re-determination; and (b) the matters mentioned in section 125(2) and (3). (9) For the purposes of this section, the withdrawal conditions are— (a) that a significant error was made in the section 128 determination; or (b) that the district valuer did not comply with section 128(4) in relation to the section 128 determination. (10) This section does not apply to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent this section applying to the re-determination). (11) In this section— - “a further determination notice” is a notice stating— 1. that the section 128 determination is withdrawn; 2. the reasons for the withdrawal; and 3. that a further determination or (as the case may be) re-determination of the value of the dwelling-house at the relevant time will be made; - “significant error”, in relation to the section 128 determination, means an error of fact, or a number of such errors, made in the section 128 determination as a result of which the value of the dwelling-house determined or (as the case may be) re-determined was at least 5% more or less than it would otherwise have been.

• (3) In section 125D(2) (period for serving tenant's notice of intention), in paragraph (b), for the words from “, the service” to the end substitute “ (or where the landlord exercises his right to have the value of the dwelling-house re-determined by the district valuer), the relevant event ”.

• (4) After section 125D(2) (period for serving tenant's notice of intention) insert—

(3) In subsection (2)(b) “the relevant event” means— (a) where a review notice was capable of being served under section 128A in relation to the determination or re-determination but no such notice was served during the period permitted by that section, the service of the notice under section 128(5) stating the effect of the determination or re-determination, (b) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(3) applied, the service on the tenant of the notice under section 128B(3), and (c) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(5) applied, the service of the notice under section 128B(7).

• (5) In section 128(2) (power of tenant to require determination or re-determination of value) omit “, or as the case may be re-determined,”.

• (6) In section 128(5) (notice of determination or re-determination) for the words from “stating” to the end substitute

stating— (a) the effect of the determination or re-determination, (b) the matters mentioned in section 125(2) and (3) (terms for exercise of right to buy), and (c) the effect of section 128A(2) (right of district valuer to serve review notice and of landlord and tenant to request that such a notice is served).

• (7) After section 128(5) (notice of determination or redetermination) insert—

(5A) The landlord shall, as soon as practicable, serve a copy of the notice on the district valuer if— (a) the district valuer requests it; or (b) the landlord requests a review of the determination or re-determination under section 128A(2)(b). (5B) The tenant shall, as soon as practicable, serve a copy of the notice on the district valuer if the tenant requests a review of the determination or re-determination under section 128A(2)(b). (5C) For the purposes of subsections (5A) and (5B) it does not matter whether the request in question was made before, on or after the service of the notice in accordance with subsection (5).

• (8) In section 136(2) (period for serving notice of intention where there is a change of secure tenant), in paragraph (b), for the words from “, the service” to the end substitute “ (or where the right to have the value of the dwelling-house re-determined by the district valuer is or has been exercised by the landlord), the relevant event ”.

• (9) After section 136(2) (period for serving notice of intention where there is a change of secure tenant) insert—

(2A) In subsection (2)(b) “the relevant event” means— (a) where a review notice was capable of being served under section 128A in relation to the determination or re-determination but no such notice was served during the period permitted by that section, the service of the notice under section 128(5) stating the effect of the determination or re-determination, (b) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(3) applied, the service on the new tenant or (as the case may be) the former tenant of the notice under section 128B(3), and (c) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(5) applied, the service of the notice under section 128B(7).

• (10) In section 140(4) (circumstances in which landlord's first notice to complete may not be served), after paragraph (a), insert—

(aa) a review notice (within the meaning of section 128A) has been served in relation to such a determination or re-determination, section 128B applies and the district valuer has neither— (i) served a notice under section 128B(3) (refusal to make further determination), nor (ii) served a notice under section 128B(7) (a determination effect notice), (ab) no such review notice has been served but such a notice may still be served under section 128A,

.

• (11) In section 181(1) (jurisdiction of county court) after “128” insert “ , 128B ”.

• (12) This section does not apply to any determination or re-determination under section 128 of the Housing Act 1985 (c. 68) which was required before the coming into force of this section.

Approved lending institutions

307

• (1) In section 156 of the Housing Act 1985 (liability to repay is a charge on the premises)—

• (a) in subsection (4) for “and any body specified, or of a class or description specified, in an order made by the Secretary of State” substitute— “ an authorised mortgage lender. ”, and

• (b) omit subsections (5) and (6).

• (2) In section 622(1) of that Act (minor definitions: general), after the definition of “authorised insurer”, insert—

“authorised mortgage lender” means— (a) a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to enter into a regulated mortgage contract as lender, (b) an EEA firm of the kind mentioned in paragraph (5)(b) of Schedule 3 to that Act who has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to enter into a regulated mortgage contract as lender, or (c) a Treaty firm within the meaning of Schedule 4 to that Act who has permission under paragraph 4 of that Schedule (as a result of qualifying for authorisation under paragraph 2 of that Schedule) to enter into a regulated mortgage contract as lender;

.

• (3) In section 622(2) of that Act (interpretation of “authorised deposit taker” and “authorised insurer”) for “and “authorised insurer”” substitute “ “ , “authorised insurer”and “authorised mortgage lender” ”.

• (4) In section 36(4) of that Act (priority of charges: approved lending institutions) for the words from “and any body” to the end substitute— “ an authorised mortgage lender. ”

• (5) In section 151B(5) of that Act (priority of charges: approved lending institutions) for the words from “and any body” to the end substitute— “ an authorised mortgage lender. ”

• (6) In paragraph 2(5) of Schedule 11 to the Housing Act 1988 (c. 50) (priority of charges: approved lending institutions) for paragraph (e) substitute—

(e) an authorised mortgage lender (within the meaning of the Housing Act 1985 (see section 622 of that Act)).

• (7) In section 12(5) of the Housing Act 1996 (c. 52) (priority of charges: approved lending institutions) for paragraph (c) substitute—

(c) an authorised mortgage lender (within the meaning of the Housing Act 1985 (see section 622 of that Act)).

Former right to buy and other flats: service charge loans

308

• (1) In section 450C(4) of the Housing Act 1985 (c. 68) (loans in respect of service charges on former right to buy flats and other housing authority flats)—

• (a) in paragraph (a) for “as regards the rate of interest payable on” substitute “ in a case where a rate of interest is payable on some or all of ”, and

• (b) after paragraph (a) insert—

(aa) in a case where amounts calculated by reference to the market value of the flat are payable instead of (or as well as) interest, make provision about calculating the market value of the flat (including imposing charges for the services of district valuers);

.

• (2) The powers conferred by section 450C(3) of that Act include, in relation to loans made before the coming into force of subsection (1) above, the power to prescribe terms, or (as the case may be) make provision, of the kind envisaged by subsection (1)(b) above.

• (3) But any such terms or provision are not to apply to any particular loan made before the coming into force of subsection (1) above unless the landlord and tenant agree that they are to apply in that case.

Former right to buy and other flats: equity share purchases

309

After section 450C of the Housing Act 1985 (c. 68) (loans in respect of service charges) insert—

(450D) (1) The appropriate national authority may by regulations provide that where— (a) a housing authority is the landlord of a flat under a long lease granted or assigned by the housing authority or another housing authority, and (b) the tenant is liable under the terms of the lease to pay service charges in respect of repairs or improvements (whether to the flat, the building in which it is situated or any other building or land), the landlord may, with the agreement of the tenant and in such circumstances as may be prescribed, purchase an equitable interest in the flat for the purpose of assisting the tenant to meet some or all of the service charge payments. (2) Regulations under this section shall ensure that the purchase price is to be met by the landlord reducing or (as the case may be) cancelling the service charge payable to the landlord by the tenant to such extent as corresponds to the amount concerned. (3) Regulations under this section may, in particular— (a) provide that the power to purchase an equitable interest does not arise in the case of particular descriptions of landlord; (b) make provision about calculating the purchase price (including provision about any discounts and about imposing charges for the services of district valuers); (c) provide for— (i) the tenant to be liable for the administrative expenses of the landlord in connection with the purchase; (ii) such expenses not to exceed such amount (if any) as may be specified in the regulations; (iii) the purchase price to include, at the option of the purchaser, a deduction for such expenses; (d) provide for an alteration, as a result of the purchase of the equitable interest, in the liability of the tenant for future service charges or improvement contributions. (4) Regulations under this section may not contain provision for cases where the Secretary of State or the Welsh Ministers are the landlord unless the Welsh Ministers are the landlord— (a) as the result of the exercise by them of functions under Part 3 of the Housing Associations Act 1985; or (b) as the result of— (i) the exercise by the former National Assembly for Wales, the Secretary of State, Housing for Wales or the Housing Corporation of functions under Part 3 of the Act of 1985; and (ii) the transfer of the flat to the Welsh Ministers by virtue of paragraph 39 of Schedule 11 to the Government of Wales Act 2006. (5) For the purposes of this section a long lease granted or assigned by— (a) the Welsh Ministers, or (b) in a case falling within subsection (4)(b), the former National Assembly for Wales, the Secretary of State, Housing for Wales or the Housing Corporation, shall be taken to have been granted or assigned by a housing authority if (but only if) the person concerned granted or assigned it in exercise of its powers under section 90 of the Housing Associations Act 1985. (6) This section does not affect any other power of the landlord to purchase an equitable interest in the flat for the purpose of assisting the tenant to meet some or all of the service charge payments. (7) Regulations under this section may apply whenever the lease concerned was granted or assigned and whenever the service charge concerned became payable. (8) Regulations under this section— (a) are to be made by statutory instrument; (b) may make different provision for different cases or descriptions of case including different provision for different areas; (c) may contain such incidental, supplementary and transitional provisions as the appropriate national authority considers appropriate. (9) An instrument containing regulations made under this section— (a) by the Secretary of State is subject to annulment in pursuance of a resolution of either House of Parliament; (b) by the Welsh Ministers is subject to annulment in pursuance of a resolution of the National Assembly for Wales. (10) In this section— - “appropriate national authority” means— 1. in relation to England, the Secretary of State; and 2. in relation to Wales, the Welsh Ministers; - “former National Assembly for Wales” means the Assembly constituted by the Government of Wales Act 1998; - “housing authority”— 1. does not include a registered provider of social housing, or a registered social landlord, which is a co-operative housing association; 2. includes a co-operative housing association which is neither a registered provider of social housing nor a registered social landlord; - “improvement contribution” has the same meaning as in Part 5 (see section 187); - “repairs” includes works for making good a structural defect.

Other amendments

310

• (1) In paragraph 11(5B) of Schedule 5 to the Housing Act 1985 (c. 68) (exceptions to the right to buy for certain accommodation for the elderly: appeals etc. to the High Court possible by virtue of disapplication of section 231(4) of the Housing Act 2004 (c. 34)) for “Section 231” substitute “ Section 231(1), (2), (3) and (5) ”.

• (2) Subsection (1) does not apply to—

• (a) appeals begun, or cases stated and signed, before the coming into force of that subsection, or

• (b) rights of appeal, or rights to have a case stated and signed, which have accrued before that time.

• (3) In paragraph 5 of Schedule 5A to the Housing Act 1985 (service of initial demolition notices) for “Schedule 13” substitute “ Schedule 5 ”.

Other

Disposals of dwelling-houses by local authorities

311

Schedule 14 (which makes provision about the requirements for consent for disposals of dwelling-houses by local authorities) has effect.

Financial assistance for information and other services

312

• (1) In section 94(1) of the Housing Act 1996 (c. 52) (financial assistance for provision of general legal advice about residential tenancies and advice about estate management schemes in connection with enfranchisement)—

• (a) after “person of” insert “ information, training or ”,

• (b) after “about” insert “ , or a dispute resolution service in connection with ”,

• (c) at the end of paragraph (a), after “tenancies,”, insert—

(aa) any other matter relating to residential tenancies,

, and

• (d) in paragraph (b), at the beginning, insert “ any matter relating to ”.

• (2) In the heading of section 94 of that Act (and the italic cross-heading before it) for “legal advice” substitute “ advice etc. ”.

Chapter 3 — Housing finance and other provisions

Housing Revenue Account subsidy

Exclusions from subsidy arrangements

313

• (1) After section 80A of the Local Government and Housing Act 1989 (c. 42) (housing finance: Housing Revenue Account subsidy) insert—

(80B) (1) Subsection (2) applies if an agreement is in force between the appropriate person and a local housing authority for sections 79 to 80A not to apply in relation to— (a) the authority; or (b) specified property, or specified descriptions of property, of the authority. (2) Sections 79 to 80A do not apply in relation to the authority or (as the case may be) property for each year provided for in the agreement. (3) Such an agreement may, in particular, contain terms and conditions about— (a) the period of years for which sections 79 to 80A are not to apply (whether a fixed or indefinite period); (b) payments to the authority by the appropriate person or by the authority to the appropriate person; (c) the levels of rent for specified property or specified descriptions of property (in the case of an agreement of the kind mentioned in subsection (1)(b)); (d) the provision of information; (e) the variation or termination of the agreement (whether on the occurrence of particular events, at the discretion of the appropriate person or otherwise). (4) The appropriate person may give directions about supplementary, incidental, consequential or transitional matters relating to the variation or termination of an agreement of the kind mentioned in subsection (1). (5) Such directions may not override any provision made on the subject by the agreement unless the directions are given with the consent of the local housing authority concerned. (6) The provision made by the directions or the agreement may, in particular, include transitional provision about the terms and conditions on which the authority or (as the case may be) property is to become subject to sections 79 to 80A after the termination of the agreement. (7) This section does not restrict the circumstances in which Housing Revenue Account subsidy is otherwise not payable to a local housing authority, or in respect of particular property, by virtue of this Part. (8) In this section— - “property” means land, houses, dwellings, buildings or property of a kind falling within paragraphs (a) to (f) of section 74(1) (property within the Housing Revenue Account); and includes future property; - “specified”, in relation to an agreement, means specified in the agreement.

• (2) In section 88(1)(aa)(ii) of that Act (construction of Part 6: meaning of “appropriate person”) for “National Assembly for Wales” substitute “ Welsh Ministers ”.

• (3) In Part 3 of Schedule 4 to that Act (the keeping of the Housing Revenue Account: special cases) in paragraph 2—

• (a) at the beginning insert “(1)”, and

• (b) at the end insert—

(2) Sub-paragraph (1) does not apply to a local housing authority in respect of a year if, by virtue of section 80B(2), sections 79 to 80A do not apply in relation to the authority for that year.

Homelessness and allocation of housing

Ineligible persons from abroad: statutory disregards

314

Schedule 15 (which amends Parts 6 and 7 of the Housing Act 1996 (c. 52) in relation to certain ineligible persons from abroad and which makes related provision, including provision for Scotland and Northern Ireland) has effect.

Armed forces: local connection test

315

In section 199 of the Housing Act 1996 (local connection test for homelessness and housing allocation purposes: different treatment of armed forces) omit—

• (a) subsection (2),

• (b) in subsection (3), paragraph (a) and the “or” following it,

• (c) subsection (4), and

• (d) in subsection (5), the word “other”.

Other

Amendments to Housing Act 1985: lending institutions

316

In section 622(1) of the Housing Act 1985 (c. 68) (minor definitions: general)—

• (a) in the definition of “authorised deposit taker”, in paragraph (b), for “12(1)” substitute “ 12 ”, and

• (b) in the definition of “authorised insurer”, in paragraph (b), for “12(1)” substitute “ 12 ”.

Building regulations: time limit for prosecutions

317

• (1) Section 35A of the Building Act 1984 (c. 55) (time limit for prosecution for contravention of certain building regulations) is amended as follows.

• (2) In the heading omit “certain”.

• (3) In subsection (1) for “a relevant offence” substitute “ an offence under section 35 above ”.

• (4) Omit subsections (2), (3) and (6).

• (5) Subsections (1) to (4) above do not apply to offences committed before the coming into force of this section.

Protected mobile home sites to include sites for gypsies and travellers

318

In section 5(1) of the Mobile Homes Act 1983 (c. 34) (interpretation), in the definition of “protected site”, omit the words from “does not include” to “that,”.

Financial assistance for certain services about commonhold

319

• (1) In section 62(1) of the Commonhold and Leasehold Reform Act 2002 (c. 15) (financial assistance for general advice about an aspect of the law of commonhold land so far as relating to residential matters)—

• (a) after “person of” insert “ information, training or ”,

• (b) for “about an” substitute

about, or a dispute resolution service in connection with— (a) any

, and

• (c) after “matters” insert

, or (b) any other matter relating to commonhold land and residential matters

.

• (2) In the heading of section 62 of that Act after “advice” insert “ etc. ”.

Part 4 — Supplementary and final provisions

Orders and regulations

320

• (1) The power of the Secretary of State, the Treasury or the Welsh Ministers to make orders or regulations under this Act—

• (a) is exercisable by statutory instrument,

• (b) may be exercised so as to make provision generally or subject to exceptions or only in relation to specified cases or circumstances or descriptions of case,

• (c) may be exercised so as to make different provision for different cases or descriptions of case, different circumstances, different purposes or different areas, and

• (d) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision.

• (2) Subsection (1) does not apply to orders under—

• (a) paragraph 3 of Schedule 3, or

• (b) Schedule 4.

• (3) An instrument containing—

• (a) an order under section 13, 114 , 122 or 229,

• (b) an order of the Secretary of State under section 321,

• (c) an order of the Secretary of State under paragraph 19(4), 21(2) or (4) or 24 of Schedule 11,

• (d) regulations under section 70 , 72 or 126A, or

• (e) regulations of the Secretary of State under section 280(3) or 291,

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

• (4) Subsection (3) does not apply to an instrument containing an order under section 321 if the order does not amend or repeal a provision of a public general Act.

• (5) If a draft of an instrument containing an order under section 13 would, apart from this subsection, be treated as a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.

• (6) An instrument containing an order under section 23 may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the House of Commons.

• (7) An instrument containing—

• (a) an order under section 36 or Part 2 (excluding sections 114 and 122),

• (aa) an order or regulations of the Secretary of State under section 184,

• (b) an order of the Secretary of State under section 321 to which subsection (3) above does not apply,

• (c) an order of the Secretary of State under paragraph 16(7), 18(4), 22(2) or 23(2) of Schedule 11,

• (ca) regulations under section 53A(2)

• (d) regulations under Part 2 (excluding sections 70 and 72),

• (e) regulations of the Secretary of State under Chapter 1 of Part 3 (including Schedule 10 but excluding sections 280(3) and 291),

• (f) regulations of the Secretary of State under section 298, or

• (g) regulations under Part 3 of Schedule 3,

is subject to annulment in pursuance of a resolution of either House of Parliament.

• (7A) An instrument containing regulations under section 53B is subject to annulment in pursuance of a resolution of the House of Commons.

• (8) An instrument containing—

• (a) an order of the Welsh Ministers under section 321,

• (b) an order of the Welsh Ministers under paragraph 19(4), 21(2) or (4) or 24 of Schedule 11, or

• (c) regulations of the Welsh Ministers under section 280(3) or 291,

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.

• (9) Subsection (8) does not apply to an instrument containing an order under section 321 if the order does not amend or repeal a provision of a public general Act.

• (10) An instrument containing—

• (a) an order of the Welsh Ministers under section 321 to which subsection (8) above does not apply,

• (b) an order of the Welsh Ministers under paragraph 16(7), 18(4), 22(2) or 23(2) of Schedule 11,

• (c) regulations of the Welsh Ministers under Chapter 1 of Part 3 (including Schedule 10 but excluding section 280(3) or 291), or

• (d) regulations of the Welsh Ministers under section 298,

is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

Consequential amendments and repeals

321

• (1) Schedule 16 (which contains repeals and revocations including repeals of spent enactments) has effect.

• (2) The Secretary of State may by order make such supplementary, incidental or consequential provision as the Secretary of State considers appropriate for the general purposes, or any particular purpose, of this Act or in consequence of any provision made by or under this Act or for giving full effect to this Act or any such provision.

• (3) The power conferred by subsection (2) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (including this Act and any Act passed in the same Session as this Act).

• (4) The power conferred by subsections (2) and (3) is also exercisable by the Welsh Ministers so far as it is exercisable in relation to matters with respect to which functions are exercisable by the Welsh Ministers.

Transitional, transitory or saving provision

322

• (1) The Secretary of State may by order make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act other than a Welsh provision.

• (2) The Welsh Ministers may by order make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of any Welsh provision.

• (3) In this section “Welsh provision” means any provision of this Act so far as it is to be brought into force by an order of the Welsh Ministers.

Financial provisions

323

• (1) There is to be paid out of money provided by Parliament—

• (a) any expenditure incurred by a Minister of the Crown by virtue of this Act, and

• (b) any increase attributable to this Act in the sums payable by virtue of any other Act out of money so provided.

• (2) There is to be paid into the Consolidated Fund any sums received by a Minister of the Crown by virtue of this Act (apart from any sums required to be paid into the National Loans Fund).

Extent

324

• (1) Subject as follows, Parts 1 to 3 (including Schedules 1 to 15) and Schedule 16 extend to England and Wales only.

• (2) Any amendment, repeal or revocation made by this Act, other than one falling within subsection (3), has the same extent as the provision to which it relates.

• (3) The following fall within this subsection—

• (a) the repeal in section 5 of the Mobile Homes Act 1983 (c. 34),

• (b) the repeals of sections 50 and 51 of the Housing Act 1988 (c. 50), and

• (c) the amendments of sections 52 to 54 and 59 of that Act.

Commencement

325

• (1) Subject as follows, this Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes or different areas.

• (2) The following provisions—

• (a) sections 294, 304 to 307, 310, 312, 313 and 319 and Schedule 13, and

• (b) section 321(1), and Schedule 16, so far as relating to the repeals in sections 125D(2), 128(2) and 136(2) of, and paragraph 13(5) of Schedule 5 to, the Housing Act 1985 (c. 68),

come into force at the end of the period of 2 months beginning with the day on which this Act is passed.

• (3) Subsection (4) applies to the following provisions—

• (a) Chapter 1 of Part 3 (including Schedule 10),

• (b) sections 295 to 298, 300 to 303, 308, 309, 315 and 318 and Schedule 12, and

• (c) section 321(1), and Schedule 16, so far as relating to repeals and revocations which are connected to the provisions mentioned in paragraph (b) above.

• (4) The provisions to which this subsection applies come into force—

• (a) in relation to England, on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes or different areas, and

• (b) in relation to Wales, on such day as the Welsh Ministers may by order appoint; and different days may be appointed for different purposes or different areas.

• (5) The Secretary of State must consult the Welsh Ministers before making an order under subsection (1) in relation to section 50(2) and Schedule 5 or section 299 and Schedule 11.

• (6) Subsection (1) does not apply to sections 320, 321(2) to (4), 322, 323 and 324, this section and section 326.

Short title

326

This Act may be cited as the Housing and Regeneration Act 2008.

SCHEDULE 1

Membership

1

• (1) The HCA is to consist of such number of members (being not less than six) as the Secretary of State may from time to time appoint.

• (2) The Secretary of State must appoint one of the members as the person with the function of chairing the HCA.

• (3) In appointing a person to be a member, the Secretary of State—

• (a) must have regard to the desirability of appointing a person who has experience of, and has shown some capacity in, a matter relevant to the exercise of the functions of the HCA, and

• (b) must be satisfied that the person will have no financial or other interest likely to affect prejudicially the exercise of the person's functions as a member.

• (4) The Secretary of State may require any person whom the Secretary of State proposes to appoint as a member to provide such information as the Secretary of State considers necessary for the purposes of sub-paragraph (3)(b).

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of appointment of members

2

• (1) Subject as follows, a member of the HCA holds and vacates office in accordance with the member's terms of appointment.

• (2) A member may resign by serving notice on the Secretary of State.

• (3) A person ceases to have the function of chairing the HCA if the person—

• (a) resigns from exercising that function by serving notice on the Secretary of State, or

• (b) ceases to be a member.

• (4) A person who—

• (a) ceases to be a member, or

• (b) ceases to have the function of chairing the HCA,

is eligible for reappointment.

• (5) The Secretary of State may remove a member who—

• (a) has been absent from meetings of the HCA for a period of more than 6 months without the permission of the HCA,

• (b) has become bankrupt or has made an arrangement with the member's creditors, or

• (c) in the opinion of the Secretary of State, has failed to comply with the member's terms of appointment or is otherwise unable, unfit or unsuitable to exercise the member's functions as a member.

Remuneration etc: members

3

• (1) The HCA may pay to its members such remuneration and such allowances as the Secretary of State may decide.

• (2) The HCA may—

• (a) pay such pensions, allowances or gratuities as the Secretary of State may decide to or in respect of any member or former member, or

• (b) pay such sums as the Secretary of State may decide towards the provision for the payment of pensions, allowances or gratuities to or in respect of any member or former member.

• (3) Sub-paragraph (4) applies if—

• (a) a person ceases to be a member of the HCA, and

• (b) the Secretary of State considers that there are special circumstances which make it appropriate for the person to receive compensation.

• (4) The Secretary of State may require the HCA to pay the person such amount as the Secretary of State may decide.

Staff

4

• (1) The HCA must appoint a person to be chief executive but may only appoint a person who has been approved by the Secretary of State.

• (2) The chief executive is a member of staff of the HCA.

• (3) The HCA may appoint such number of other staff as the Secretary of State may approve.

• (4) The staff's terms and conditions of service are to be decided by the HCA with the approval of the Secretary of State.

• (5) The HCA may pay to its staff such remuneration and such allowances as it may, with the approval of the Secretary of State, decide.

• (6) The HCA may—

• (a) pay such pensions, allowances or gratuities to or in respect of any member of staff or former member of staff, or

• (b) pay such sums towards the provision for the payment of pensions, allowances or gratuities to or in respect of any member of staff or former member of staff,

as it may, with the approval of the Secretary of State, decide.

Financial provision

5

• (1) The Secretary of State may make payments to the HCA by way of grant.

• (2) Such payments may be made on such terms and conditions as the Secretary of State considers appropriate.

Committees

6

• (1) The HCA may establish one or more committees.

• (2) A committee may establish one or more sub-committees.

• (3) A member, or member of staff, of the HCA may be a member of a committee or sub-committee.

• (4) Other persons may be members of committees or sub-committees but only with the approval, in each case, of the Secretary of State.

• (5) No committee or sub-committee may consist exclusively of other persons.

• (6) The members of a sub-committee of a committee may include persons who are not members of the committee.

• (7) The HCA may pay such remuneration and such allowances as the Secretary of State may decide to any person who—

• (a) is a member of a committee or sub-committee, but

• (b) is neither a member nor member of staff of the HCA.

• (8) The HCA may dissolve a committee or sub-committee.

Procedure and members' interests

7

• (1) The HCA may, subject to any directions given by the Secretary of State, decide—

• (a) its own procedure, and

• (b) the procedure of any of its committees or sub-committees.

• (2) Subject to this, a committee may decide the procedure of any of its sub-committees.

• (3) Subject as above, a committee or sub-committee may decide its own procedure.

• (4) In this paragraph “procedure” includes quorum.

8

The validity of proceedings of the HCA, or of any of its committees or sub-committees, is not affected by—

• (a) any vacancy,

• (b) any defective appointment, or

• (c) any contravention of—

• (i) directions given as mentioned in paragraph 7(1), or

• (ii) paragraph 9.

9

• (1) A member of the HCA who is directly or indirectly interested in any matter arising at a meeting of the HCA must disclose the nature of that interest to the meeting.

• (2) A member of a committee or sub-committee of the HCA who is directly or indirectly interested in any matter arising at a meeting of the committee or sub-committee must disclose the nature of that interest to the meeting.

• (3) In the case of a matter disclosed under this paragraph by a member of the HCA or of a committee or sub-committee, the member—

• (a) must not take part in any deliberation or decision about the matter if it is a contract or agreement of any description, but

• (b) may otherwise take part in any deliberation or decision about the matter unless at least one-third of the other members at the meeting decide that the interest disclosed might prejudicially affect the member's consideration of the matter.

Delegation

10

• (1) The HCA may delegate any of its functions to any of its members, committees, sub-committees or staff.

• (2) Any such committee may delegate any function conferred on it to any sub-committee of the committee or to any staff of the HCA.

• (3) See also section 42 (agency arrangements of the HCA with urban development corporations).

Reports, accounts etc.

11

• (1) For each financial year, the HCA must—

• (a) prepare an annual report on how it has exercised its functions during the year, and

• (b) send a copy of the report to the Secretary of State within such period as the Secretary of State may direct.

• (2) The Secretary of State must lay before Parliament a copy of each report received under sub-paragraph (1).

12

• (1) The HCA must keep proper accounts and proper records in relation to the accounts.

• (2) For each financial year, the HCA must—

• (a) prepare a statement of accounts in respect of that financial year, and

• (b) send copies of the statement to the Secretary of State and the Comptroller and Auditor General within such period as the Secretary of State may direct.

• (3) The statement must be in such form as the Secretary of State may direct.

• (4) The Comptroller and Auditor General must—

• (a) examine, certify and report on the statement, and

• (b) send a copy of the certified statement and of the report to the Secretary of State as soon as possible.

• (5) The Secretary of State must lay before Parliament a copy of each statement and report received under sub-paragraph (4).

13

• (1) The HCA must provide the Secretary of State with such information as the Secretary of State may require relating to the HCA's property or to the exercise or proposed exercise of its functions.

• (2) The HCA must—

• (a) permit any person authorised by the Secretary of State to inspect and make copies of any accounts or other documents of the HCA, and

• (b) provide such explanation of them as that person or the Secretary of State may require.

Supplementary and transitional provisions

14

• (1) The application of the seal of the HCA must be authenticated by the signature of—

• (a) a member of the HCA who is authorised (generally or specifically) for that purpose, or

• (b) a member of staff of the HCA who is so authorised.

• (2) A document purporting to be duly executed under the seal of the HCA, or signed on its behalf, is to be received in evidence and, unless the contrary is proved, is to be treated as so executed or signed.

15

The HCA is not to be regarded—

• (a) as a servant or agent of the Crown, or

• (b) as enjoying any status, immunity or privilege of the Crown,

and its property is not to be regarded as property of, or held for or on behalf of, the Crown.

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

The Secretary of State (instead of the HCA) may—

• (a) appoint the first chief executive, and

• (b) determine the terms and conditions of service as a member of staff of the HCA which are applicable to the first chief executive on appointment.

SCHEDULE 2

Part 1 — Compulsory acquisition of land

Application of Acquisition of Land Act 1981 (c. 67)

1

• (1) The Acquisition of Land Act 1981 applies to the compulsory acquisition of land under section 9 with the following modification.

• (2) The reference in section 17(3) of that Act (local authority and statutory undertakers' land) to statutory undertakers includes a reference to the HCA.

2

• (1) Schedule 3 to the Act of 1981 applies to the compulsory acquisition of new rights under section 9 with the following modification.

• (2) The reference in paragraph 4(3) of that Schedule to statutory undertakers includes a reference to the HCA.

Extinguishment of private rights of way etc.

3

• (1) Sub-paragraph (2) applies where the HCA completes the compulsory acquisition of land under this Part of this Act.

• (2) On completion of the acquisition—

• (a) all private rights of way on, under or over the land are extinguished,

• (b) all rights of laying down, erecting, continuing or maintaining any apparatus on, under or over the land are extinguished, and

• (c) any such apparatus vests in the HCA.

• (3) Sub-paragraph (2) is subject to paragraphs 4 to 6.

4

The HCA may give a direction before the completion of the acquisition that paragraph 3(2) is not to apply to any right or apparatus specified in the direction.

5

Paragraph 3(2) is subject to any agreement which may be made (whether before or after the completion of the acquisition) between—

• (a) the HCA, and

• (b) the person—

• (i) in whom the right or apparatus concerned is vested, or

• (ii) to whom it belongs.

6

• (1) Paragraph 3(2) does not apply to—

• (a) any right vested in statutory undertakers for the purpose of carrying on their undertaking,

• (b) any apparatus belonging to statutory undertakers for that purpose,

• (c) any right conferred by, or in accordance with, the electronic communications code on the operator of an electronic communications code network, or

• (d) any electronic communications apparatus kept installed for the purposes of any such network.

• (2) In sub-paragraph (1) “statutory undertakers” means persons who are, or are deemed to be, statutory undertakers for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990 (c. 8); and “statutory undertaking” is to be read in accordance with section 262 of that Act (meaning of “statutory undertakers”).

7

• (1) Any person who suffers loss by the extinguishment of a right, or the vesting of any apparatus, under paragraph 3 is entitled to compensation from the HCA.

• (2) Any compensation payable under this paragraph is to be determined in accordance with the Land Compensation Act 1961 (c. 33).

New rights: Compulsory Purchase Act 1965 (c. 56)

8

• (1) The Compulsory Purchase Act 1965 applies, with the necessary modifications, to the compulsory acquisition of new rights under section 9 as it applies to the compulsory purchase of land.

• (2) One result is that, in appropriate contexts, references in that Act to land are to be read as referring, or as including references, to—

• (a) the rights acquired or to be acquired, or

• (b) land over which the rights are, or are to be, exercisable,

according to the requirements of the particular context.

New rights: specific adaptations of 1965 Act

9

• (1) Part 1 of the Act of 1965 applies to the compulsory acquisition of new rights under section 9 with the modifications specified in paragraphs 10 to 15.

• (2) Sub-paragraph (1) is without prejudice to the generality of paragraph 8.

10

Section 7 (measure of compensation) of the Act of 1965 is to be read as if for that section there were substituted—

(7) (1) In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is acquired is depreciated by the acquisition but also to the damage (if any) to be sustained by the owner of the land by reason of injurious affection of other land of the owner by the exercise of the right. (2) The modifications subject to which subsection (1) of section 44 of the Land Compensation Act 1973 (compensation for injurious affection) is to have effect, as applied by subsection (2) of that section to compensation for injurious affection under this section, are that— (a) for “land is acquired or taken” there shall be substituted “ a right over land is acquired ”; and (b) for “acquired or taken from him” there shall be substituted “ over which the right is exercisable ”.

11

Section 8(1) of the Compulsory Purchase Act 1965 has effect as if references to acquiring land were to acquiring a right in the land, and Schedule 2A to that Act is to be read as if, for that Schedule, there were substituted—

SCHEDULE 2A (1) (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over the whole or part of a house, building or factory. (2) But see section 2A of the Acquisition of Land Act 1981 (under which a compulsory purchase order can exclude from this Schedule land that is 9 metres or more below the surface). (2) In this Schedule “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period. (8) If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory. (10) On a referral under paragraph 7 the Upper Tribunal must determine whether the acquisition of the right would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right, (b) the proposed use of the right, and (c) if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10 it must determine how much of the house, building or factory the authority ought to be required to take. (13) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land. (14) (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

12

• (1) The provisions of the Act of 1965 mentioned in sub-paragraph (2) (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land) are to be read as if they were modified in accordance with sub-paragraph (3).

• (2) The provisions are—

• (a) section 9(4) (failure of owners to convey),

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity),

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners), and

• (d) paragraphs 2(3) and 7(2) of Schedule 4 (common land).

• (3) The provisions are to be read as if they were modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be acquired compulsorily is vested absolutely in the acquiring authority.

13

• (1) Section 11 of the Act of 1965 (powers of entry) is to be read as if it were modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, the acquiring authority has power to enter for the purpose of exercising that right.

• (2) For the purposes of sub-paragraph (1)—

• (a) the power to enter is to be exercisable in the same circumstances, and subject to the same conditions, as already contained in that section, and

• (b) the right is deemed to have been created on the date of service of the notice.

• (3) Sections 12 (penalty for unauthorised entry) and 13 (entry on sheriff's warrant in the event of obstruction) of the Act of 1965 are to be read as if modified correspondingly.

14

Section 20 of the Act of 1965 (compensation for short-term tenants) is to be read as if it were modified so as to secure that persons with such interests as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory purchase of the interests but taking into account only the extent (if any) of such interference with such interests as is actually caused, or likely to be caused, by the exercise of the right concerned.

15

Section 22 of the Act of 1965 (protection of acquiring authority's possession of land where by inadvertence an interest in the land has not been purchased) is to be read as if it were modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right concerned, subject to compliance with that section as respects compensation.

New rights: compensation

16

• (1) The enactments relating to compensation for the compulsory purchase of land apply, with the necessary modifications, in relation to the acquisition of new rights under section 9 as they apply to compensation for the compulsory purchase of land.

• (2) Sub-paragraph (1) is without prejudice to the generality of paragraph 8.

Part 2 — Acquisition by agreement

17

• (1) The provisions of Part 1 of the Compulsory Purchase Act 1965 (c. 56) (other than section 31) apply, so far as applicable, to the acquisition by the HCA of land by agreement.

• (2) In that Part as so applied “land” has the same meaning as in this Part of this Act.

SCHEDULE 3

Part 1 — Powers to override easements etc.

Powers to override easements etc. in undertaking works or using land

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Compensation for overridden easements etc.

2

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Part 2 — Powers to extinguish public rights of way

Powers of Secretary of State to extinguish public rights of way by order

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The Secretary of State may by order extinguish any public right of way over land of the HCA if the Secretary of State is satisfied that—

• (a) an alternative right of way has been, or will be, provided, or

• (b) the provision of an alternative right of way is not required.

Notification of proposal to make order

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• (1) This paragraph applies if the Secretary of State is proposing to make an order under paragraph 3.

• (2) The Secretary of State must—

• (a) publish a notice stating—

• (i) the effect of the order,

• (ii) the time (not less than 28 days starting with the date of publication of the notice) within which objections to the proposal may be made, and

• (iii) the manner in which objections to the proposal may be made, and

• (b) serve a copy of the notice on—

• (i) the local planning authority in whose area the land is situated, and

• (ii) the relevant highway authority.

• (3) In sub-paragraph (2) “the relevant highway authority” means any authority which is a highway authority in relation to the right of way which is proposed to be extinguished by the order.

• (4) Publication under sub-paragraph (2) must be in such manner as the Secretary of State considers appropriate.

Duty to consider objections

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• (1) The Secretary of State must proceed under paragraph 6 if—

• (a) an objection to a proposal to make an order is properly made and not withdrawn, and

• (b) the matter is not otherwise dealt with.

• (2) For the purposes of sub-paragraph (1) an objection is properly made if (and only if)—

• (a) it is made—

• (i) within the time, and

• (ii) in the manner,

stated in the notice under paragraph 4, and

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

• (3) For the purposes of sub-paragraph (1) the matter is otherwise dealt with if (and only if) the Secretary of State—

• (a) decides, irrespective of the objection, not to make the order, or

• (b) decides to make a modification to the proposal which is agreed to by the objector as meeting the objection.

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• (1) The Secretary of State must, before making a final decision, consider the grounds of the objection as set out in the statement comprised in, or submitted with, the objection.