Land Powers (Defence) Act 1958

SECOND SCHEDULE Provisions with respect to certain orders

Sections 6, 10, 11, 13, 14, 17. Part I Procedure for making certain orders 1 The provisions of this Part of this Schedule shall have effect for the purpose of the making by any Minister of an order under section six, ten, eleven, thirteen, fourteen . . . of this Act. 2 (1) Before making the order the Minister shall prepare a draft thereof, describing by reference to a map the land to which the draft order applies, and serve on every owner, lessee or occupier of any of that land (except tenants for a month or any period less than a month) notice that he proposes to make the order; and Before making the order the Minister shall— (a) prepare a draft order describing, by reference to a map, the land to which the draft order applies; and (b) serve on every person— (i) who is an owner, lessee, tenant (whatever the tenancy period) or occupier of any of that land; (ii) to whom the Minister would, if proceeding under section 5(1) of the Compulsory Purchase Act 1965, be required to give a notice to treat; or (iii) who the Minister thinks is likely to be entitled to make a claim for compensation under section 10 of that Act if the order is confirmed and the compulsory purchase takes place, so far as he is known to the Minister after making diligent inquiry, notice that he proposes to make the order. (1A) any such notice— (a) except where it is accompanied by a copy of the draft order, shall state the effect thereof and name a place where a copy may be inspected during reasonable hours, being a place reasonably near to and accessible from the land in question; (b) except where it is accompanied by a copy of the said map, shall name a place where a copy of that map may be inspected during reasonable hours, being such a place as aforesaid; (c) shall specify the time (not being less than twenty-one days from the service of the notice) within which, and the manner in which, objections to the order may be made. (2) Where a notice is required to be served under this paragraph on the owner of any land which is ecclesiastical property, a like notice shall be served on the Church Commissioners Diocesan Board of Finance for the diocese in which the land is situated. In this sub-paragraph the expression “ecclesiastical property” means land (not being land in Scotland, Northern Ireland, Wales or Monmouthshire) belonging to any ecclesiastical benefice of the Church of England, or being or forming part of a church subject to the jurisdiction of a bishop of any diocese of the Church of England or the site of such a church, or being or forming part of a burial ground subject to such jurisdiction. 3 If no objection is duly made by any such owner, lessee or occupier as aforesaid any such person as is mentioned in paragraph 2(1)(b) or if all objections so made are withdrawn, the Minister may make the order either in the form of the draft or, subject to paragraph 6 of this Schedule, with modifications. 4 (1) If any objection duly made as aforesaid is not withdrawn, the Minister shall afford to the person by whom that objection was made an opportunity to appear before, and be heard by, a person appointed in accordance with sub-paragraph (1A) to hold an inquiry into the proposal to make the order: Provided that the Minister shall not be required to afford any person an opportunity to appear and be heard as aforesaid otherwise than in private. (1A) A person to hold an inquiry for the purposes of sub-paragraph (1) is to be appointed as follows— (a) if the inquiry relates to land in England and Wales, the person is to be appointed by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor; (b) if the inquiry relates to land in Scotland, the person is to be appointed by the Lord President of the Court of Session; (c) if the inquiry relates to land in Northern Ireland, the person is to be appointed by the Lord Chief Justice of Northern Ireland after consulting Lord Chancellor. (2) The person holding an inquiry under the foregoing sub-paragraph shall report thereon to the Minister who, after considering the report and the objection, may make the order either in the form of the draft or, subject to paragraph 6 of this Schedule, with modifications. (3) Rules of procedure shall be made by statutory instrument in accordance with sub-paragraph (3A) for the purposes of inquiries held under this paragraph, including rules— (a) as to the information with respect to the Minister’s reasons for proposing to make the order, the findings and recommendations of the person holding the inquiry, the Minister’s decision on those findings and recommendations, and the Minister’s reasons for any departure from those recommendations, to be furnished by the Minister to persons afforded such an opportunity as aforesaid as being owners, lessees or occupiers of any land; (b) as to the furnishing by the Minister to the person holding the inquiry of explanations of the Minister’s reasons for proposing to make the order and of evidence in support thereof. (3A) Rules under sub-paragraph (3) are to be made as follows— (a) if the rules are for the purposes of inquiries held in relation to land in England and Wales, they are to be made by the Lord Chancellor; (b) if the rules are for the purposes of inquiries held in relation to land in Scotland, they are to be made by the Secretary of State after consultation with the Lord President of the Court of Session; (c) if the rules are for the purposes of inquiries held in relation to land in Northern Ireland, they are to be made by the Lord Chancellor after consultation with the Lord Chief Justice of Northern Ireland. (4) The person appointed to hold an inquiry under this paragraph shall be paid by the Minister such remuneration and allowances as may be determined, with the approval of the Treasury— (a) by the Lord Chancellor, or (b) in a case where the Lord President of the Court of Session appointed the person, by the Secretary of State. (5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this paragraph. (6) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph. (7) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph— (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002; (b) a Lord Justice of Appeal (as defined in section 88 of that Act). 5 The Minister may require any person who has made an objection to state in writing the grounds thereof, and any such objection which the Minister is satisfied relates exclusively to matters of compensation may be disregarded for the purposes of the two last foregoing paragraphs. 6 The order shall not be made with any modification from the draft unless either— (a) every person who is an owner, lessee or occupier of any land to which the order applies which is affected by that modification, other than a tenant for a month or any period less than a month, has been served with notice of the proposal to make the modification and either has consented thereto or has not before the expiration of fourteen days from the service of the notice notified the Minister in writing that he objects thereto; or (b) the modification arises from representations made at an inquiry into the proposal to make the order held under paragraph 4 of this Schedule or from the findings or recommendations of the person holding that inquiry, and every person such as is mentioned in the foregoing sub-paragraph was served with such a notice of that proposal as is mentioned in paragraph 2 of this Schedule and afforded an opportunity to appear and be heard at the inquiry. 7 If the order is made, the Minister shall serve on every person who is an owner, lessee or occupier of any land to which the order applies, and on any other person upon whom such a notice of the proposal to make the order as is mentioned in paragraph 2 of this Schedule was served, a copy of the order and either a copy of the map referred to in the order or a notice naming a place where that map may be inspected during reasonable hours, being a place reasonably near to and accessible from the land to which the order applies. 8 (1) If, where the order is made, any person aggrieved thereby, being a person required to be served with a copy of the order under the last foregoing paragraph, desires to question the validity thereof or of any provision contained therein on the ground that the making of the order or the inclusion of that provision was not authorised by this Act or on the ground that any requirement of this Act or of any rules made under sub-paragraph (3) of paragraph 4 of this Schedule has not been complied with in relation to the order, he may, not later than the expiration of six weeks from the date on which he is served as aforesaid, make an application to the appropriate court, and on any such application the court— (a) may by interim order suspend the operation of the order or any provision contained therein, either generally or in so far as it affects any property of the applicant or a part of any such property, until the final determination of the proceedings; (b) if satisfied that the making of the order or the inclusion of any provision therein was not authorised by this Act or that the interests of the applicant have been substantially prejudiced by failure to comply with any requirement of this Act or of any such rules as aforesaid in relation to the order, may quash the order or any provision contained therein, either generally or in so far as it affects any property of the applicant or a part of any such property. (2) In this paragraph “appropriate court” means— (a) if the order relates to land in England and Wales, the High Court in England and Wales; (b) if the order relates to land in Scotland, the Court of Session; (c) if the order relates to land in Northern Ireland, the High Court in Northern Ireland. 9 Subject to the provisions of the last foregoing paragraph, the order shall not, either before or after it has been made, be questioned in any legal proceedings whatsoever, and shall become operative as soon as it is made. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part II Acquisition of land, etc., under certain orders 12 The provisions of this Part of this Schedule shall apply where an order is made under section thirteen . . . of this Act for the purpose of the acquisition of any land, or of any easement over or right restrictive of the user of any land, by the Minister of Power . . . 13 The following enactments, that is to say— (a) the Defence Act, 1842, except sections five, six, . . . twenty-three, thirty-seven, thirty-nine and forty-one; (b) the Defence Act, 1854: (c) the Defence Act, 1859: (d) section seven of the Lands Clauses Consolidation Acts Amendment Act, 1860, with the omission from the proviso thereto of the words from “authorize” to “1842, or”; (e) section forty-six of the Defence Act, 1860, and the provisions thereby applied: (f) section seven of the Militia (Lands and Buildings) Act, 1873; (g) the Defence Acts Amendment Act, 1873; (h) Part VII of the Requisitioned Land and War Works Act, 1945, shall have effect for the purpose of the acquisition, holding, management, use and disposal in any manner of the land, easement or right to which the order applies as if references in those enactments in whatever terms to the principal officers of Her Majesty’s Ordnance or to the Secretary of State for the War Department or to the Ordnance department included references to the Minister of Power . . . and to his department. 14 Notice to treat for the compulsory acquisition under the enactments aforesaid of any land, easement or right to which the order applies may be served notwithstanding that the provisions of section sixteen of the Defence Act, 1842, with respect to the surveying and marking out of land have not been complied with, and references in the enactments aforesaid to land surveyed and marked out under that section shall be construed as including references to land described in a notice to treat for the acquisition thereof. 15 At any time after serving any such notice to treat as aforesaid for the acquisition of any land, easement or right which falls to be served on any owner, lessee or occupier of any land affected and after serving on every owner, lessee or occupier of that land not less than fourteen days’ notice, the Minister of Power . . . may enter on and take possession of, or exercise any of the rights to be acquired with respect to, the land (or such part thereof as is specified in the last-mentioned notice) without previous consent or compliance with any relevant requirements of any of the enactments aforesaid, but subject to the payment of the like compensation as would have been payable if those requirements had been complied with, and, where possession is taken of the land, subject to the payment of interest on that compensation from the date of entry at the rate for the time being in force for the purposes of the following enactment, that is to say— (a) in the case of land in England or Wales, subsection (2) of section fifty-seven of the Town and Country Planning Act, 1947; (b) in the case of land in Scotland, subsection (2) of section fifty-four of the Town and Country Planning (Scotland) Act, 1947; (c) in the case of land in Northern Ireland, subsection (1) of section fourteen of the Administrative and Financial Provisions Act (Northern Ireland), 1956. 16 Where any such notice to treat or of intended entry as aforesaid is required to be served on an owner of land which is ecclesiastical property as defined in paragraph 2 of this Schedule, a like notice shall be served on the Church Commissioners Diocesan Board of Finance for the diocese in which the land is situated; and any compensation in respect of the acquisition which, apart from this paragraph, would have been payable to the owner of the land shall be paid to the Church Commissioners Diocesan Board of Finance for the diocese in which the land is situated to be applied for the purposes for which the proceeds of a sale by agreement of the land would be applicable under any enactment or Measure authorising such a sale or disposing of the proceeds of such a sale.