Countryside and Rights of Way Act 2000 (c. 37)

(The document as of February, 2008)

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(c) as to the procedure on any application to the relevant authority under section 24 or 25, including the period within which any such application must be made,

(d) as to the giving of notice for the purposes of section 24(2)(b)(ii), 25(2)(b)(ii), 26(2)(c)(ii) or 28(2)(c)(ii),

(e) prescribing the form of any notice or application referred to in paragraphs (a) to (d),

(f) restricting the cases in which a person who is interested in any land only as the holder of rights of common may make an application under section 24 or 25 in respect of the land,

(g) as to requirements to be met by relevant authorities or the Secretary of State in relation to consultation (whether or not required by the preceding provisions of this Chapter),

(h) as to the giving of directions by relevant authorities or the Secretary of State,

(i) as to notification by relevant authorities or the Secretary of State of decisions under this Chapter,

(j) as to steps to be taken by persons interested in land, by relevant authorities, by the bodies specified in section 26(6) or by the Secretary of State for informing the public about the exclusion or restriction under this Chapter of access by virtue of section 2(1), including the display of notices on or near the land to which the exclusion or restriction relates,

(k) as to the carrying out of reviews by relevant authorities under section 27(3) or by the Secretary of State under section 28(4),

(l) as to the period within which and manner in which appeals under section 30 are to be brought,

(m) as to the advertising of such an appeal, and

(n) as to the manner in which such appeals are to be considered.

(2) Regulations made under subsection (1)(k) may provide for any of the provisions of this Chapter relating to appeals to apply (with or without modifications) on a review under section 27.

33 Guidance by countryside bodies to National Park authorities

(1) Subject to subsection (3), the Countryside Agency may issue guidance--

(a) to National Park authorities in England with respect to the discharge by National Park authorities of their functions under this Chapter, and

(b) to the Forestry Commissioners with respect to the discharge by the Forestry Commissioners of any functions conferred on them by virtue of section 21(6) in relation to land in England.

(2) Subject to subsection (3), the Countryside Council for Wales may issue guidance--

(a) to National Park authorities in Wales with respect to the discharge by National Park authorities of their functions under this Chapter, and

(b) to the Forestry Commissioners with respect to the discharge by the Forestry Commissioners of any functions conferred on them by virtue of section 21(6) in relation to land in Wales.

(3) The Countryside Agency or the Countryside Council for Wales may not issue any guidance under this section unless the guidance has been approved--

(a) in the case of the Countryside Agency, by the Secretary of State, and

(b) in the case of the Countryside Council for Wales, by the National Assembly for Wales.

(4) Where the Countryside Agency or the Countryside Council for Wales issue any guidance under this section, they shall arrange for the guidance to be published in such manner as they consider appropriate.

(5) A National Park authority or the Forestry Commissioners shall have regard to any guidance issued to them under this section.

Chapter III Means of access

34 Interpretation of Chapter III

In this Chapter--

"access land" does not include any land in relation to which the application of section 2(1) has been excluded under any provision of Chapter II either indefinitely or for a specified period of which at least six months remain unexpired;
"means of access", in relation to land, means--
(a)
any opening in a wall, fence or hedge bounding the land (or part of the land), with or without a gate, stile or other works for regulating passage through the opening,
(b)
any stairs or steps for enabling persons to enter on the land (or part of the land), or
(c)
any bridge, stepping stone or other works for crossing a watercourse, ditch or bog on the land or adjoining the boundary of the land.

35 Agreements with respect to means of access

(1) Where, in respect of any access land, it appears to the access authority that--

(a) the opening-up, improvement or repair of any means of access to the land,

(b) the construction of any new means of access to the land,

(d) the imposition of restrictions--

(i) on the destruction, removal, alteration or stopping-up of any means of access to the land, or

(ii) on the doing of any thing whereby the use of any such means of access to the land by the public would be impeded,

is necessary for giving the public reasonable access to that land in exercise of the right conferred by section 2(1), the access authority may enter into an agreement with the owner or occupier of the land as to the carrying out of the works or the imposition of the restrictions.

(2) An agreement under this section may provide--

(a) for the carrying out of works by the owner or occupier or by the access authority, and

(b) for the making of payments by the access authority--

(i) as a contribution towards, or for the purpose of defraying, costs incurred by the owner or occupier in carrying out any works for which the agreement provides, or

(ii) in consideration of the imposition of any restriction.

36 Failure to comply with agreement

(1) If the owner or occupier of any access land fails to carry out within the required time any works which he is required by an agreement under section 35 to carry out, the access authority, after giving not less than twenty-one days' notice of their intention to do so, may take all necessary steps for carrying out those works.

(2) In subsection (1) "the required time" means the time specified in, or determined in accordance with, the agreement as that within which the works must be carried out or, if there is no such time, means a reasonable time.

(3) If the owner or occupier of any access land fails to observe any restriction which he is required by an agreement under section 35 to observe, the access authority may give him a notice requiring him within a specified period of not less than twenty-one days to carry out such works as may be specified in the notice, for the purpose of remedying the failure to observe the restriction.

(4) A notice under subsection (3) must contain particulars of the right of appeal conferred by section 38.

(5) If the person to whom a notice under subsection (3) is given fails to comply with the notice, the access authority may take all necessary steps for carrying out any works specified in the notice.

(6) Where the access authority carry out any works by virtue of subsection (1), the authority may recover the amount of any expenses reasonably incurred by them in carrying out the works, reduced by their contribution under the agreement, from the person by whom under the agreement the cost (apart from the authority's contribution) of carrying out the works would fall to be borne.

(7) Where the access authority carry out any works by virtue of subsection (5), the authority may recover the amount of any expenses reasonably incurred by them in carrying out the works from the person to whom the notice under subsection (3) was given.

37 Provision of access by access authority in absence of agreement

(1) Where, in respect of any access land--

(a) it appears to the access authority that--

(i) the opening-up, improvement or repair of any means of access to the land,

(ii) the construction of any new means of access to the land, or

(iii) the maintenance of any means of access to the land,

is necessary for giving the public reasonable access to that land, or to other access land, in pursuance of the right conferred by section 2(1), and

(b) the access authority are satisfied that they are unable to conclude on reasonable terms an agreement under section 35 with the owner or occupier of the land for the carrying out of the works,

the access authority may, subject to subsection (3), give the owner or occupier a notice stating that, after the end of a specified period of not less than twenty-one days, the authority intend to take all necessary steps for carrying out the works specified in the notice for the opening-up, improvement, repair, construction or maintenance of the means of access.

(2) A notice under subsection (1) must contain particulars of the right of appeal conferred by section 38.

(3) Where a notice under subsection (1) is given to any person as the owner or occupier of any land, the access authority shall give a copy of the notice to every other owner or occupier of the land.

(4) An access authority exercising the power conferred by subsection (1) in relation to the provision of a means of access shall have regard to the requirements of efficient management of the land in deciding where the means of access is to be provided.

(5) If, at the end of the period specified in a notice under subsection (1), any of the works specified in the notice have not been carried out, the access authority may take all necessary steps for carrying out those works.

38 Appeals relating to notices

(1) Where a notice under section 36(3) or 37(1) has been given to a person in respect of any land, he or any other owner or occupier of the land may appeal against the notice--

(a) in the case of land in England, to the Secretary of State, and

(b) in the case of land in Wales, to the National Assembly for Wales.

(2) An appeal against a notice under section 36(3) may be brought on any of the following grounds--

(a) that the notice requires the carrying out of any works which are not necessary for remedying a breach of the agreement,

(b) that any of the works have already been carried out, and

(3) An appeal against a notice under section 37(1) may be brought on any of the following grounds--

(a) that the notice requires the carrying out of any works which are not necessary for giving the public reasonable access to the access land in question,

(b) in the case of works to provide a means of access, that the means of access should be provided elsewhere, or that a different means of access should be provided, and

(4) On an appeal under this section, the Secretary of State or the National Assembly for Wales may--

(a) confirm the notice with or without modifications, or

(b) cancel the notice.

(5) Sections 7 and 8 (and Schedule 3) have effect in relation to an appeal under this section as they have effect in relation to an appeal under section 6.

(6) Regulations may make provision as to--

(a) the period within which and manner in which appeals under this section are to be brought,

(b) the advertising of such an appeal, and

(7) Where an appeal has been brought under this section against a notice under section 36(3) or 37(1), the access authority may not exercise their powers under section 36(5) or section 37(5) (as the case may be) pending the determination or withdrawal of the appeal.

39 Order to remove obstruction

(1) Where at any time two or more access notices relating to a means of access have been given to any person within the preceding thirty-six months, a magistrates' court may, on the application of the access authority, order that person--

(a) within such time as may be specified in the order, to take such steps as may be so specified to remove any obstruction of that means of access, and

(b) not to obstruct that means of access at any time when the right conferred by section 2(1) is exercisable.

(2) If a person ("the person in default") fails to comply with an order under this section--

(a) he is liable on summary conviction to a fine not exceeding level 3 on the standard scale, and

(b) the access authority may remove any obstruction of the means of access and recover from the person in default the costs reasonably incurred by them in doing so.

(3) In this section "access notice" means a notice under section 36(3) or 37(1) in respect of which the period specified in the notice has expired, other than a notice in respect of which an appeal is pending or which has been cancelled on appeal.

Chapter IV General

40 Powers of entry for purposes of Part I

(1) A person who is authorised by the appropriate countryside body to do so may enter any land--

(a) for the purpose of surveying it in connection with the preparation of any map under this Part or the review of any map issued under this Part,

(b) for the purpose of determining whether any power conferred on the appropriate countryside body by Chapter II should be exercised in relation to the land,

(c) for the purpose of ascertaining whether members of the public are being permitted to exercise the right conferred by section 2(1),

(d) in connection with an appeal under any provision of this Part, or

(e) for the purpose of determining whether to apply to the Secretary of State or the National Assembly for Wales under section 58.

(2) A person who is authorised by a local highway authority to do so may enter any land--

(a) for the purpose of determining whether the local highway authority should enter into an agreement under section 35, give a notice under section 36(1) or (3) or section 37(1) or carry out works under section 36(1) or (5), section 37(5) or section 39(2)(b),

(b) for the purpose of ascertaining whether an offence under section 14 or 39 has been or is being committed, or

(3) A person who is authorised by a National Park authority to do so may enter any land--

(a) for the purpose of enabling the authority to determine whether to exercise any power under Chapter II of this Act in relation to the land,

(b) for the purpose of determining whether members of the public are being permitted to exercise the right conferred by section 2(1),

(d) for the purpose of determining whether the authority should enter into an agreement under section 35, give a notice under section 36(1) or (3) or section 37(1) or carry out works under section 36(1) or (5), section 37(5) or section 39(2)(b),

(e) for the purpose of ascertaining whether an offence under section 14 or 39 has been or is being committed, or

(f) for the purposes of erecting or maintaining notices under section 19(1).

(4) A person who is authorised by the Forestry Commissioners to do so may enter any land--

(a) for the purpose of determining whether any power conferred on the Forestry Commissioners by Chapter II should be exercised in relation to the land, or

(b) in connection with an appeal under any provision of this Part.

(5) A person acting in the exercise of a power conferred by this section may--

(a) use a vehicle to enter the land;

(b) take a constable with him if he reasonably believes he is likely to be obstructed;

(d) take samples of the land and of anything on it.

(6) If in the exercise of a power conferred by this section a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(7) A person authorised under this section to enter upon any land--

(a) shall, if so required, produce evidence of his authority before entering, and

(b) shall produce such evidence if required to do so at any time while he remains on the land.

(8) A person shall not under this section demand admission as of right to any occupied land, other than access land, unless--

(a) at least twenty-four hours' notice of the intended entry has been given to the occupier, or

(b) it is not reasonably practicable to give such notice, or

(9) The rights conferred by this section are not exercisable in relation to a dwelling.

(10) A person who intentionally obstructs a person acting in the exercise of his powers under this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

41 Compensation relating to powers under s. 40

(1) It is the duty of a body by which an authorisation may be given under section 40 to compensate any person who has sustained damage as a result of--

(a) the exercise of a power conferred by that section by a person authorised by that body to do so, or

(b) the failure of a person so authorised to perform the duty imposed on him by subsection (6) of that section,

except where the damage is attributable to the fault of the person who sustained it.

(2) Any dispute as to a person's entitlement to compensation under this section or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement--

(a) as respects entry on land in England, by the Secretary of State, and

(b) as respects entry on land in Wales, by the National Assembly for Wales.

42 References to public places in existing enactments

(1) This section applies to any enactment which--

(a) is contained in an Act passed before or in the same Session as this Act, and

(b) relates to things done, or omitted to be done, in public places or places to which the public have access.

(2) Regulations may provide that, in determining for the purposes of any specified enactment to which this section applies whether a place is a public place or a place to which the public have access, the right conferred by section 2(1), or access by virtue of that right, is to be disregarded, either generally or in prescribed cases.

43 Crown application of Part I

(1) This Part binds the Crown.

(2) No contravention by the Crown of any provision of this Part shall make the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) The provisions of this Part apply to persons in the public service of the Crown as they apply to other persons.

44 Orders and regulations under Part I

(1) Any power to make an order or regulations which is conferred by this Part on the Secretary of State or the National Assembly for Wales is exercisable by statutory instrument.

(2) Any power to make an order or regulations which is conferred by this Part on the Secretary of State or the National Assembly for Wales includes power--

(a) to make different provision for different cases, and

(b) to make such incidental, supplementary, consequential or transitional provision as the person making the order or regulations considers necessary or expedient.

(3) No order under section 3 or regulations under paragraph 3 of Schedule 2 shall be made by the Secretary of State unless a draft has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any statutory instrument containing regulations made by the Secretary of State under any other provision of this Part shall be subject to annulment in pursuance of a resolution of either House of Parliament.

45 Interpretation of Part I

(1) In this Part, unless a contrary intention appears--

"access authority" has the meaning given by section 1(2);
"access land" has the meaning given by section 1(1);
"the appropriate countryside body" has the meaning given by section 1(2);
"excepted land" has the meaning given by section 1(2);
"Inner London" means the area comprising the inner London boroughs, the City of London, the Inner Temple and the Middle Temple;
"interest", in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an estate or interest in land or by virtue of a licence or agreement, and in particular includes rights of common and sporting rights, and references to a person interested in land shall be construed accordingly;
"livestock" means cattle, sheep, goats, swine, horses or poultry, and for the purposes of this definition "cattle" means bulls, cows, oxen, heifers or calves, "horses" include asses and mules, and "poultry" means domestic fowls, turkeys, geese or ducks;
"local highway authority" has the same meaning as in the [1980 c. 66.] Highways Act 1980;
"local or private Act" includes an Act confirming a provisional order;
"mountain" has the meaning given by section 1(2);
"open country" has the meaning given by section 1(2);
"owner", in relation to any land, means, subject to subsection (2), any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
"prescribed" means prescribed by regulations;
"registered common land" has the meaning given by section 1(3);
"regulations" means regulations made by the Secretary of State (as respects England) or by the National Assembly for Wales (as respects Wales);
"rights of common" has the same meaning as in the [1965 c. 64.] Commons Registration Act 1965;
"telecommunications code" and "telecommunications code system" have the same meaning as in Schedule 4 to the [1984 c. 12.] Telecommunications Act 1984.

(2) In relation to any land which is subject to a farm business tenancy within the meaning of the [1995 c. 8.] Agricultural Tenancies Act 1995 or a tenancy to which the [1986 c. 5.] Agricultural Holdings Act 1986 applies, the definition of "owner" in subsection (1) does not apply where it is excluded by section 2(5) or 21(4) or by paragraph 7(4) of Schedule 2.

(3) For the purposes of this Part, the Broads are to be treated as a National Park and the Broads Authority as a National Park authority.

(4) In subsection (3) "the Broads" has the same meaning as in the [1988 c. 4.] Norfolk and Suffolk Broads Act 1988.

46 Repeal of previous legislation, and amendments relating to Part I

(1) The following provisions (which are superseded by the provisions of this Part) shall cease to have effect--

(a) in section 193 of the [1925 c. 20.] Law of Property Act 1925, subsection (2) (power by deed to declare land subject to that section), and

(b) sections 61 to 63 of the National Parks and Access to the [1949 c. 97.] Countryside Act 1949 (which relate to reviews of access requirements and the preparation of maps).

(2) No access agreement or access order under Part V of the National Parks and Access to the [1949 c. 97.] Countryside Act 1949 (access to open country) may be made after the commencement of this section in relation to land which is open country or registered common land for the purposes of this Part.

(3) Schedule 4 (which contains minor and consequential amendments relating to access to the countryside) has effect.

Part II Public rights of way and road traffic

Public rights of way and definitive maps and statements

47 Redesignation of roads used as public paths

(1) In the [1981 c. 69.] Wildlife and Countryside Act 1981 (in this Act referred to as "the 1981 Act"), section 54 (duty to reclassify roads used as public paths) shall cease to have effect.

(2) Every way which, immediately before the commencement of this section, is shown in any definitive map and statement as a road used as a public path shall be treated instead as shown as a restricted byway; and the expression "road used as a public path" shall not be used in any definitive map and statement to describe any way.

48 Restricted byway rights

(1) Subject to subsections (2) and (3), the public shall have restricted byway rights over any way which, immediately before the commencement of section 47, is shown in a definitive map and statement as a road used as a public path.

(2) Subsection (1) has effect subject to the operation of any enactment or instrument (whether coming into operation before or after the commencement of section 47), and to the effect of any event otherwise within section 53(3)(a) of the 1981 Act, whereby a highway--

(a) is authorised to be stopped up, diverted, widened or extended, or

(b) becomes a public path;

and subsection (1) applies accordingly to any way as so diverted, widened or extended.

(3) Subsection (1) does not apply to any way, or part of a way, over which immediately before the commencement of section 47 there was no public right of way.

(4) In this Part--

"restricted byway rights" means--
(a)
a right of way on foot,
(b)
a right of way on horseback or leading a horse, and
(c)
a right of way for vehicles other than mechanically propelled vehicles; and
"restricted byway" means a highway over which the public have restricted byway rights, with or without a right to drive animals of any description along the highway, but no other rights of way.

(5) A highway at the side of a river, canal or other inland navigation is not excluded from the definition of "restricted byway" in subsection (4) merely because the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right over it.

(6) Subsection (1) is without prejudice to any question whether the public have over any way, in addition to restricted byway rights, a right of way for mechanically propelled vehicles or any other right.

(7) In subsections (4) and (6) "mechanically propelled vehicle" does not include a vehicle falling within paragraph (c) of section 189(1) of the [1988 c. 52.] Road Traffic Act 1988.

(8) Every surveying authority shall take such steps as they consider expedient for bringing to the attention of the public the effect of section 47(2) and this section.

(9) The powers conferred by section 103(5) must be so exercised as to secure that nothing in section 47 or this section affects the operation of section 53 or 54 of, or Schedule 14 or 15 to, the 1981 Act in relation to--

(a) a relevant order made before the commencement of section 47, or

(b) an application made before that commencement for a relevant order.

(10) In subsection (9) "relevant order" means an order which relates to a way shown in a definitive map and statement as a road used as a public path and which--

(a) is made under section 53 of the 1981 Act and contains modifications relating to that way by virtue of subsection (3)(c)(ii) of that section, or

(b) is made under section 54 of the 1981 Act.

(11) Where--

(a) by virtue of an order under subsection (3) of section 103 ("the commencement order") containing such provision as is mentioned in subsection (5) of that section, an order under Part III of the 1981 Act ("the Part III order") takes effect, after the commencement of section 47, in relation to any way which, immediately before that commencement, was shown in a definitive map and statement as a road used as a public path,

(b) the commencement order does not prevent subsection (1) from having effect on that commencement in relation to that way, and

(c) if the Part III order had taken effect before that commencement, that way would not have fallen within subsection (1),

all rights over that way which exist only by virtue of subsection (1) shall be extinguished when the Part III order takes effect.

49 Provisions supplementary to ss. 47 and 48

(1) Every way over which the public have restricted byway rights by virtue of subsection (1) of section 48 (whether or not they also have a right of way for mechanically propelled vehicles or any other right) shall, as from the commencement of that section, be a highway maintainable at the public expense.

(2) As from the commencement of that section, any liability, under a special enactment (within the meaning of the [1980 c. 66.] Highways Act 1980) or by reason of tenure, enclosure or prescription, to maintain, otherwise than as a highway maintainable at the public expense, a restricted byway to which subsection (1) applies is extinguished.

(3) Every way which, in pursuance of--

(a) paragraph 9 of Part III of Schedule 3 to the [1968 c. 41.] Countryside Act 1968, or

(b) any order made under section 54(1) of the 1981 Act before the coming into force of section 47,

is shown in any definitive map and statement as a byway open to all traffic, a bridleway or a footpath, shall continue to be maintainable at the public expense.

(4) Nothing in subsections (1) and (3) or in section 48(1) obliges a highway authority to provide on any way a metalled carriage-way or a carriage-way which is by any other means provided with a surface suitable for cycles or other vehicles.

(5) Nothing in section 48, or in section 53 of the 1981 Act, limits the operation of orders under the [1984 c. 27.] Road Traffic Regulation Act 1984 or the operation of any byelaws.

(6) Section 67 of the 1981 Act (application to the Crown) has effect as if this section and sections 47, 48 and 50 were contained in Part III of that Act.

50 Private rights over restricted byways

(1) Restricted byway rights over any way by virtue of subsection (1) of section 48 are subject to any condition or limitation to which public rights of way over that way were subject immediately before the commencement of that section.

(2) Any owner or lessee of premises adjoining or adjacent to a relevant highway shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the relevant highway.

(3) In subsection (2), in its application to the owner of any premises, "relevant highway" means so much of any highway maintainable at the public expense by virtue of section 49(1) as was, immediately before it became so maintainable, owned by the person who then owned the premises.

(4) In subsection (2), in its application to the lessee of any premises, "relevant highway" means so much of any highway maintainable at the public expense by virtue of section 49(1) as was, immediately before it became so maintainable, included in the lease on which the premises are held.

(5) In this section--

"lease" and "lessee" have the same meaning as in the 1980 Act;
"owner", in relation to any premises, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, and "owned" shall be construed accordingly; and
"premises" has the same meaning as in the 1980 Act.

51 Amendments relating to definitive maps and statements and restricted byways

Schedule 5 to this Act (which contains amendments relating to definitive maps and statements and restricted byways) has effect.

52 Restricted byways: power to amend existing legislation

(1) The Secretary of State may by regulations--

(a) provide for any relevant provision which relates--

(i) to highways or highways of a particular description,

(ii) to things done on or in connection with highways or highways of a particular description, or

(iii) to the creation, stopping up or diversion of highways or highways of a particular description,

not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and

(b) make in any relevant provision such amendments, repeals or revocations as appear to him appropriate in consequence of the coming into force of sections 47 to 50 or provision made by virtue of paragraph (a) or subsection (6)(a).

(2) In this section--

"relevant provision" means a provision contained--
(a)
in an Act passed before or in the same Session as this Act, or
(b)
in any subordinate legislation made before the passing of this Act;
"relevant Welsh provision" means a provision contained--
(a)
in a local or private Act passed before or in the same Session as this Act and relating only to areas in Wales, or
(b)
in any subordinate legislation which was made before the passing of this Act and which the National Assembly for Wales has power to amend or revoke as respects Wales.

(3) In exercising the power to make regulations under subsection (1), the Secretary of State--

(a) may not make provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and

(b) may not without the consent of the National Assembly for Wales make any provision which (otherwise than merely by virtue of the amendment or repeal of a provision contained in an Act) amends or revokes subordinate legislation made by the Assembly.

(4) The National Assembly for Wales may submit to the Secretary of State proposals for the exercise by the Secretary of State of the power conferred by subsection (1).

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