Legislation – The Five Estuaries Offshore Wind Farm Order 2025
SCHEDULE 8Modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants
Compensation enactments
1.
The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation for the compulsory purchase of land and interests in land.
2.
(1)
Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the following modification—
(2)
“(5A)
If—
(a)
the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the Compulsory Purchase Act 1965 (as modified by paragraph 8 of Schedule 8 to the Five Estuaries Offshore Wind Farm Order 2025);
(b)
the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the Compulsory Purchase Act 1965 (as substituted by paragraph 11 of Schedule 8 to the Five Estuaries Offshore Wind Farm Order 2025) to acquire an interest in the land; and
(c)
the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of sub-section (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.”.
3.
(1)
(2)
In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 6 of this Schedule—
(a)
for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”
; and
(b)
for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable.
Application of Part 1 of the 1965 Act
4.
(1)
Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 28 (modification of Part 1 of the 1965 Act) to the acquisition of land under article 21 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 23 (compulsory acquisition of rights)—
(a)
with the modifications specified in sub-paragraph (2); and
(b)
with such other modifications as may be necessary.
(2)
The modifications referred to in sub-paragraph (1) are set out in the following provisions of this Schedule.
5.
References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—
(a)
the right acquired or to be acquired, or the restriction imposed or to be imposed; or
(b)
the land over which the right is or is to be exercisable, or the restriction is or is to be enforceable.
6.
“7.
In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.
7.
The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a)
section 9(4) (refusal to convey, failure to make title, etc.);
(b)
paragraph 10(3) of Schedule 1 (persons without power to sell their interests) (conveyance of the land or interest);
(c)
paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d)
paragraphs 2(3) and 7(2) of Schedule 4 (common land);
are 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 compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
8.
9.
Section 20 (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
10.
Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 28(4) is also 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 acquired, subject to compliance with that section as respects compensation.
11.
“SCHEDULE 2ACOUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT
Introduction
1.
(1)
This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 (execution of declaration) of the 1981 Act as applied by article 26 (application of the 1981 Act) of the Five Estuaries Offshore Wind Farm Order 2025 in respect of the land to which the notice to treat relates.
(2)
But see article 27 (acquisition of subsoil only) of the Five Estuaries Offshore Wind Farm Order 2025 which excludes the acquisition of subsoil only from this Schedule.
(3)
In this Schedule, “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
2.
A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
3.
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.
Response to counter-notice
4.
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.
5.
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”).
6.
If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.
7.
If the authority do not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.
8.
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.
Determination by the Upper Tribunal
9.
On a referral under paragraph 6, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant 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.
10.
In making the determination, the Upper Tribunal must take into account—
(a)
the effect of the acquisition of the right or the imposition of the covenant;
(b)
the use to be made of the right or covenant proposed to be acquired or imposed; and
(c)
if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
11.
If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 9, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.
12.
If the Upper Tribunal determines that the acquiring 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.
13.
(1)
If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of six 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 it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawing of the notice.
14.
Any dispute as to the compensation is to be determined by the Upper Tribunal.”.