HC Deb 15 December 1983 vol 50 cc1221-5

Amendments made: No. 64, in page 86, line 33, at end insert '''agriculture" and "agricultural"—

  1. (a) in England and Wales, have the same meanings as in the Highways Act 1980;
  2. (b) in Scotland, have the same meanings as in the Town and Country Planning (Scotland) Act 1972; and
  3. (c) in Northern Ireland, have the same meanings as in the Agriculture Act (Northern Ireland) 1949;'.

No. 65, in page 86, line 35, at end insert `bridleway" and "footpath"

  1. (a) in England and Wales, have the same meanings as in the Highways Act 1980;
  2. (b) in Scotland, have the same meanings as in Part III of the Countryside (Scotland) Act 1967; and
  3. (c) in Northern Ireland, mean a way over which the public have, by virtue of the Access to the Countryside (Northern Ireland) Order 1983, a right of way on horseback and on foot, respectively;'.

No. 66, in page 87, leave out lines 12 and 13 and insert— '(a) except in Northern Ireland, means a maintainable highway within the meaning of the Public Utilities Street Works Act 1950 other than one which is a footpath or bridleway that crosses, and forms part of, any agricultural land or any land which is being brought into use for agriculture; and'.

No. 68, in page 88, line 17, after 'agreement', insert `in writing'.

No. 69, in page 88, line 35, after 'agreed', insert 'in writing'.

No. 70, in page 88, line 37, leave out 'the duty imposed by sub-paragraph (8) below' and insert 'sub-paragraph (3A) and paragraph 3A below'.

No. 71, in page 88, line 42, after 'agrees', insert 'in writing'.

No. 72, in page 89, line 7, at end insert— '(3A) A right falling within sub-paragraph (1) above shall not have effect so as to authorise any telecommunications apparatus exceeding 15 metres in height to be installed, or kept installed, on or over any land unless the owners of the freehold estate in that land and every person who is (otherwise than as mortgagee) a lessee of the land is bound by an agreement that his interest in the land should be bound by the right.'.

No. 73, in page 89, leave out lines 23 to 40.

No. 74, in page 89, line 42, at end insert— `(i) in the application of this paragraph to any footpath or bridleway that crosses and forms part of any agricultural land or any land which is being brought into use for agriculture, as references to the occupier of that land;'.

No. 75, in page 89, line 43, after 'street', insert '(not being such a footpath or bridleway)'.

No. 76, in page 90, line 20, at end insert— `(10A) Subject to paragraphs 8(2) and 10(2) below, this paragraph shall not require any person to give his agreement to the exercise of any right conferred by any of paragraphs 8 to 11 below.'.

No. 77, in page 90, line 30, after 'agreement', insert `in writing'.

No. 78, in page 90, line 35, leave out from 'emergencies' to end of line 37.

No. 79, in page 90, line 38 leave out '(2) to (8) and (10) of paragraph 2 above, and insert `(2) to (10) of paragraph 2 above except sub-paragraph (3A)'.

No 80, in page 90, line 45 at end insert—

'Effect of rights and compensation

3A.—(1) Anything done by the operator in exercise of a right conferred in relation to any land in accordance with paragraph 2 or 3 above shall be deemed to be done in exercise of a statutory power.

(2) Where at any time after something has been done in exercise of a right conferred in relation to any land in accordance with paragraph 2 or 3 above a person, being neither the person who conferred the right nor a person bound by the right by virtue of paragraph 2(3) above, becomes the occupier of the land, the operator shall restore the land to its condition before that thing was done.

(3) The duty imposed by sub-paragraph (2) above shall, to the extent that its performance involves the removal of any telecommunication apparatus from any land, be enforceable only in accordance with paragraph 19 below.

(4) Where—

  1. (a) on a right in relation to any land being conferred or varied in accordance with paragraph 2 or 3 above, there is a depreciation in the value of any relevant interest in the land, and
  2. (b) that depreciation is attributable to the fact that paragraph 19 below will apply to the removal from the land, when the owner for the time being of that interest becomes the occupier of theland, of any telecommunication apparatus installed in pursuance of that right, the operator shall pay compensation to the person who, at the time the right is conferred or, as the case may be, varied, is the owner of that relevant interest; and the amount of that compensation shall be equal (subject to paragraph 7(aa) below) to the amount of the depreciation.

(5) In subparagraph (4) above "relevant interest", in relation to land subject to a right conferred or varied in accordance with paragraph 2 or 3 above, means any interest in respect of which the following two conditions are satisfied at the time the right is conferred or varied namely—

  1. (a) the owner of the interest is not the occupier of the land but may become the occupier of the land by virtue of that interest; and
  2. (b) the interest is not the interest of a person who gave his agreement to the conferring or variation of the right or of a person who is bound by the right or variation by virtue of paragraph 2(3) above.

(6) Any question as to a person's entitlement to compensation under sub-paragraph (4) above, or as to the amount of any compensation under that sub-paragraph, shall in default of agreement, be referred to and determined by the Lands Tribunal.

(7) A claim to compensation under sub-paragraph (4) above shall be capable of being made at any time before the owner of the interest in respect of which the claim is made becomes the occupier of the land in question, or at any time in the period of three years beginning with that time.

(8) For the purposes of assessing any compensation under sub-paragraph (4) above, rules (2) to (4) set out in section 5 of the Land Compensation Act 1961 shall, subject to any necessary modifications, have effect as they have effect for the purposes of assessing compensation for the compulsory acquisition of any interest in land.

(9) Subsections (1) to (3) of section 10 of the Land Compensation Act 1973 (compensation in respect of mortgages, trusts for sale and settled land) shall apply in relation to compensation under Part I of that Act.

(10) In the application of this paragraph to Northern Ireland—

  1. (a) for the reference in sub-paragraph (6) above to the Lands Tribunal there is substituted a reference to the Lands Tribunal for Northern Ireland;
  2. (b) for the reference in sub-paragraph (8) above to section 5 of the Land Compensation Act 1961 there is substituted a reference to Article 6 of the Land Compensation (Northern Ireland) Order 1982;
  3. (c) for the references in sub-paragraph (9) above to subsections (1) to (3) of section 10 of the Land 1223 Compensation Act 1973 and to Part I of that Act there are substituted references to paragraphs (1) to (3) of Article 13 of the Land Acquisition and Compensation (Northern Ireland) Order 1973 and to Part II of that Order, respectively.'.

No. 82, in page 91, line 25 at end insert— '(4A) The terms and conditions specified by virtue of subparagraph (4) above in an order under this paragraph, shall include such terms and conditions as appear to the court appropriate for ensuring that the least possible loss and damage is caused by the exercise of the right in respect of which the order is made.'.

No. 83, in page 92, leave out lines 1 to 12 and insert—

`Court to fix financial terms where agreement dispensed with]

5.—(1) The terms and conditions specified by virtue of sub-paragraph (4) of paragraph 4 above in an order under that paragraph dispensing with the need for a person's agreement, shall include—

  1. (a) such terms with respect to the payment of consideration in respect of the giving of the agreement, or the exercise of the rights to which the agreement relates, as it appears to the court would have been fair and reasonable if the agreement had been given willingly and subject to the other provisions of the order; and
  2. (b) such terms as appear to the court appropriate for ensuring that persons from time to time bound by the order are adequately compensated (whether by the payment of such consideration or otherwise) for any loss or damage suffered by them in consequence of the exercise of the rights to which the agreement relates.
(1A) In determining what amount should be specified in a term of an order under paragraph 4 above requiring a payment to be made to any person, the court shall, in a case where the order is made in consequence of an application made in connection with proceedings under paragraph 19 below, take into account, to such extent as it thinks fit, any period during which that person was entitled to require the removal of any telecommunication apparatus from the land in question but, by virtue of paragraph 19 below, was not entitled to enforce its removal; but where the court takes any such period into account, it may also take into account any compensation paid under paragraph 3A(4) above. (1B) The terms specified by virtue of sub-paragraph (1) above in an order under paragraph 4 above may provide—
  1. (a) for the making of payments from time to time to such persons as may be determined under those terms; and
  2. (b) for questions arising in consequence of thse terms (whether as to the amount of any loss or damage caused by the exercise of a right or othewise) to be referred to arbitration or to be determined in such other manner as may be specified in the order.'.

No. 84, in page 92, line 14, leave out `in pursuance of sub-paragraph (1) above' and insert `by virtue of terms specified in an order under paragraph 4 above'.

No. 85, in page 92, line 21, leave out `by virtue of sub-paragraph (1) above the court requires' and insert `terms specified in an order under paragraph 4 above require'.

No. 86, in page 92, leave out lines 24 to 30.

No. 87, in page 93, line 28, at end insert— `(aa) confer any right to compensation under any provision of this code on any person, or'.

No. 88, in page 94, line 7 [Schedule 2], leave out `nothing in this paragraph shall authorise the doing of anything' and insert 'the rights conferred by this paragraph shall not be exercisable'.

No. 89, in page 94, line 20, leave out '(without obtaining any agreement required by paragraph 2 above)'.

No. 90, in page 96, line 17 leave out `(without obtaining any agreement required by paragraph 2 or 3 above)'.

No. 91, in page 98, line 13, leave out 'damage or disturbance caused to that person by' and insert `loss or damage suffered by that person in consequence of the carrying out of.

No. 92, in page 98, line 25, leave out 'damage' and insert 'loss'.

No. 93, in page 98, line 29, leave out from 'had' to 'on' in line 31 and insert 'given his authority willingly for the works to be executed'.

No. 94, in page 99, line 48, at end insert—

'Compensation for injurious affection to neighbouring land etc.

14A—(1) Where a right conferred by or in accordance with any of the preceding provisions of this code is exercised, compensation shall be payable by the operator under section 10 of the Compulsory Purchase Act 1965 (compensation for injurious affection to neighbouring land etc.) as if that section had effect in relation to injury caused by the exercise of such a right as it has effect in relation to injury caused by the execution of works on land that has been compulsorily purchased.

(2) Sub-paragraph (1) above shall not confer any entitlement to compensation on any person in respect of the exercise of a right conferred in accordance with paragraph 2 or 3 above, if that person conferred the right or is bound by it by virtue of paragraph 2(3) above, but, save as aforesaid, the entitlement of any person to compensation under this paragraph shall be determined irrespective of his ownership of any interest in the land where the right is exercised.

(3) Compensation shall not be payable on any claim for compensation under this paragraph unless the amount of the compensation exceeds £50.

(4) In the application of this paragraph to Northern Ireland—

  1. (a) for any reference in sub-paragraph (1) to section 10 of the Compulsory Purchase Act 1965 there is substituted a reference to Article 18 of the Land Compensation (Northern Ireland) Order 1982;
  2. (b) any question as to a person's entitlement to compensation by virtue of sub-paragraph (1) above, or as to the amount of that compensation, shall, in default of agreement, be determined by the Lands Tribunal for Northern Ireland.'.

No. 95, in page 100, line 20, at end insert— '(3A) Where a person has both given a notice under this paragraph and applied for compensation under any of the preceding provisions of this code, the court

  1. (a) may give such directions as it thinks fit for ensuring that no compensation is paid until any proceedings under this paragraph have been disposed of, and
  2. (b) if the court makes an order under this paragraph, may provide in that order for some or all of the compensation otherwise payable under this code to that person not to be so payable, or, if the case so requires, for some or all of any compensation paid under this code to that person to be repaid to the operator.'.

No. 96, in page 101, line 26, leave out from 'apparatus' to end of line 29 and insert 'the court shall have the same powers as it would have if an application had been duly made under paragraph 4 above for an order dispensing with the need for that person's agreement.'

No. 97, in page 103, line 1, leave out 'may' and insert `shall'.

No. 98, in page 103, line 43, leave out from, `apparatus' to end of line 46 and insert 'the court shall have the same powers as it would have if an application had been duly made under paragraph 4 above for an order dispensing with the need for that person's agreement.'.

No. 99, in page 105, line 30 [Schedule 2], after 'paragraph', insert 'and without prejudice to paragraph 5(1A) above'.

No. 100, in page 105, line 34, leave out from 'time' to end of line 39.

No. 101, in page 110, line 24, at end insert— '(2A) Except as provided under the preceding provisions of this code, the operator shall not be liable to compensate any person for, or be subject to any other liability in respect of, any loss or damage caused by the lawful exercise of any right conferred by or in accordance with this code.'.

No. 102, in page 111, line 13, leave out 'by the court' and insert 'after the coming into force of this code in like manner as if this Act had not been passed.

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