Coal industry Act 1994 (c. 21)

(The document as of February, 2008)

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(a) by virtue of an order under section 1 of the [1966 c. 4.] Mines (Working Facilities and Support) Act 1966 or of any agreement, the Corporation was entitled on 31st August 1975 to work any coal or to use any coal mine in which a retained interest subsisted at that time,

(b) that entitlement has continued throughout the period since that date as an entitlement of the Corporation or, at different times, of the Corporation and a person to whom the Corporation's rights have been transferred in accordance with a restructuring scheme, and

then section 49 of this Act shall not apply with respect to that coal or coal mine or to any retained interest therein except in relation to matters unconnected with the exercise of that entitlement.

(2) Where--

(a) a notice given on or after the restructuring date for the purposes of section 49 of this Act specifies any area, and

(b) at the time when the notice was published, the conditions mentioned in sub-paragraph (1) above were satisfied in relation to any coal or coal mine comprised in, or lying under, land in that area,

so much of that land as consists of that coal or coal mine shall be deemed to be excluded from that area.

(3) If notice of a retained interest is given in pursuance of a relevant invitation at a time when the conditions mentioned in sub-paragraph (1) above were satisfied in relation to any coal or coal mine comprised in or lying under the land in which that interest subsists, then for the purpose of determining the amount of any compensation under this Schedule, that interest, so far as it relates to that coal or mine, shall be treated as no longer subsisting.

(4) In sub-paragraph (3) above "a relevant invitation" means an invitation contained by virtue of--

(a) subsection (3)(d) of section 50 of this Act, or

(b) subsection (3)(b) of section 3 of the 1975 Act,

in a notice for the purposes of section 49 of this Act or, as the case may be, in a notice under section 3 of that Act.

Transitional provisions

12 (1) On and after the restructuring date, the following provisions (which broadly correspond to the provisions of Part I of this Schedule), that is to say--

(a) subsections (4) to (6) and (8)(b) of section 3 of the 1975 Act, and

(b) Schedule 2 to that Act, other than paragraph 10,

shall have effect, notwithstanding their repeal by this Act and instead of Part I of this Schedule, in relation to any case where a notice of a retained interest was given before the restructuring date in pursuance of an invitation contained, by virtue of subsection (3)(b) of that section, in any notice under that section.

(2) On and after the restructuring date, subsection (8)(a) of section 3 of the 1975 Act (which makes provision equivalent to sub-paragraph (2) of paragraph 11 above) shall have effect, notwithstanding its repeal by this Act and instead of that sub-paragraph, for the purpose of determining the area to which any notice under that section relates.

(3) Sub-paragraph (1) above shall be subject to so much of any restructuring scheme as makes provision for the transfer to any other person, as from the restructuring date or any subsequent date, of the Corporation's rights and liabilities by virtue of the provisions having effect in accordance with that sub-paragraph.

Section 52.

SCHEDULE 8 Amendments of the Opencast Coal Act 1958

Introduction

1 The [1958 c. 69.] Opencast Coal Act 1958 shall be amended as follows.

Power to make compulsory rights orders

2 (1) In subsection (1) of section 4 (compulsory rights order)--

(a) for the words "the Corporation", in each place where they occur, there shall be substituted "the Coal Authority";

(b) for the words "compulsorily acquire" there shall be substituted "confer"; and

(c) for the words "the whole or part of any land on which they desire" there shall be substituted "the whole, or such part as (subject to the confirmation of the Secretary of State) the Coal Authority thinks fit, of any land on which the applicant for the order desires".

(2) After that subsection there shall be inserted the following subsections--

" (1A) The Coal Authority shall not make a compulsory rights order except on the application of a person who satisfies that Authority--

(a) that he is either a licensed operator within the meaning of the Coal Industry Act 1994 or a person whose application to that Authority for a licence under Part II of that Act is pending; and

(b) that he has served notice in the prescribed form of the application for the order on every person who is known to him to be a person who would, in relation to the order applied for, be directly concerned.

(1B) Subject to the provisions of section 5 of this Act, the rights conferred by an order made on such an application as is mentioned in subsection (1A) of this section shall be conferred on the applicant and his successors so as to be exercisable for the purposes only of--

(a) operations which the applicant or, as the case may be, any such successor is authorised to carry out by virtue of being a licensed operator within the meaning of the Coal Industry Act 1994; and

(b) operations which are incidental to operations falling within paragraph (a) above (including operations carried out at times when the authorisation for the operations falling within that paragraph is not in force). "

(3) In subsection (5) of that section (which has effect in relation to Scotland for applying enactments relating to compulsory purchase and giving effect to Part I of Schedule 2 to the Act), after the first "to the" there shall be inserted "Scottish"; and subsection (8) of that section shall cease to have effect.

Effect of orders

3 (1) In subsection (2) of section 5 (effect of order), for "The Corporation" there shall be substituted "The person on whose application the order has been made".

(2) In subsections (4) and (5) of that section--

(a) for the words "the Corporation", in the first place where they occur in each subsection, there shall be substituted "the person entitled to the rights conferred by the order"; and

(b) for the words "the Corporation", in the second and third places where they occur in each subsection, there shall be substituted "that person".

(3) After subsection (5) of that section there shall be inserted the following subsections--

" (5A) Subject to subsection (5B) of this section, the rights conferred by a compulsory rights order--

(a) shall be exercisable by a successor of the original applicant for the order only where the Coal Authority has transferred to that successor the entitlement to exercise the rights conferred by the order; but

(b) where the Coal Authority has so transferred them, shall not, at any time after the transfer, be exercisable by any person in his capacity as the original applicant or as a previous successor of that applicant;

and references in this Act to the person entitled to the rights conferred by a compulsory rights order are references to the person who is for the time being the person by whom those rights are exercisable in accordance with section 4(1B) of this Act and this section.

(5B) Where at any time after an application for a compulsory rights order has been made and before any order made on that application is confirmed--

(a) any person becomes the successor of the original applicant for the order and notifies that fact--

(i) if no order has been made on the application, to the Coal Authority, or

(ii) if such an order has been made, to the Secretary of State,

and

(b) the Authority or, as the case may be, the Secretary of State decides to proceed in relation to the application or order in accordance with this subsection,

the provisions of this Act and of any enactment applied by this Act shall have effect as if the application had been made by that person, as if he had the same right to make it as the original applicant and as if anything done for the purposes of the application by or in relation to the original applicant or a previous successor had been done by or in relation to that person.

(5C) The Coal Authority or, as the case may be, the Secretary of State--

(a) shall make a transfer under subsection (5A) of this section by giving written notice of the transfer to each of the persons who, in consequence of the transfer, is to cease to be, or is to become, entitled to the rights conferred by the order;

(b) may by notice to the successor make any modifications of a compulsory rights order which are necessary in consequence only of the making of a transfer under subsection (5A) of this section; and

(c) may make a decision to proceed in accordance with subsection (5B) of this section subject to compliance by the successor giving the notification with such conditions as that Authority or the Secretary of State thinks fit. "

Limitations on effect of orders

4 In section 7 (rights not affected by order)--

(a) in subsection (2)(c)--

(i) for "authorisation" there shall be substituted "opencast planning permission";

(ii) for "the Corporation have" there shall be substituted "the person entitled to the rights conferred by the compulsory rights order has"; and

(iii) for the words from "under" to "applied" there shall be substituted "under the provisions of the Act of 1990, applied";

(b) in subsection (3)(a)--

(i) for "made by the Corporation and" there shall be substituted "to which the person entitled to the rights conferred by the compulsory rights order is or is deemed to be a party and which is"; and

(ii) for "the Corporation are" there shall be substituted "that person is";

and

" (8) In this section--

"statutory water undertakers" means--
(i)
in England and Wales, the National Rivers Authority, a water undertaker or a sewerage undertaker; and
(ii)
in Scotland, a water authority within the meaning of the [1980 c. 45.] Water (Scotland) Act 1980;
"local enactment"--
(i)
in England and Wales, means any local statutory provision within the meaning of the [1987 c. 3.] Water Industry Act 1991; and
(ii)
in Scotland, has the same meaning as in the [1980 c. 45.] Water (Scotland) Act 1980;

and, in the application of this section to Scotland, for any reference to the Act of 1990 there shall be substituted a reference to the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972. "

Limited compulsory rights orders

5 In subsection (3)(b) of section 8 (modification of section 5(4))--

(a) for the words "the Corporation", in the first and second places where they occur, there shall be substituted "the person entitled to the rights conferred by the order"; and

(b) for the words "the Corporation", in the third place where they occur, there shall be substituted "that person".

Provisions as to other minerals, timber, crops, etc.

6 In subsections (1) to (3) of section 10 (rights in relation to other minerals, timber, crops, etc.)

(a) for the words "the Corporation", in the first and last places where they occur in each subsection, there shall be substituted "the person entitled to the rights conferred by the order"; and

(b) for the words "the Corporation", wherever else they occur in each subsection, there shall be substituted "that person".

Registration of orders in Scotland

7 In section 11(4) (registration in the register of sasines)--

(a) for the words "the Corporation", in the first place where they occur, there shall be substituted "the person on whose application it was made"; and

(b) for the words "the Corporation", in the second place where they occur, there shall be substituted "the person entitled immediately before it ceases to have effect to the rights conferred by the order".

Removal of chattels from land

8 (1) In subsection (1) of section 12 (rights to remove chattels from land affected by compulsory rights order), for "the Corporation" there shall be substituted "the person entitled to the rights conferred by the order".

(2) In subsection (2) of that section, for "the Corporation" there shall be substituted "the person who served the notice".

(3) After that subsection there shall be inserted the following subsection--

" (2A) Where the person who has served a notice under subsection (1) of this section ceases, without exercising any power under subsection (2) of this section, to be the person entitled to the rights under the compulsory rights order, that notice shall cease to have effect for the purposes of this section. "

(4) In subsection (3) of that section--

(a) for "the Corporation cause" there shall be substituted "any person causes";

(b) for "the last preceding subsection" there shall be substituted "subsection (2) of this section";

(c) for the words "the Corporation", in the second and third places where they occur, there shall be substituted "that person"; and

(d) for the words "the Corporation", in the fourth place where they occur, there shall be substituted "the person who caused the chattel to be removed".

(5) In subsection (4) of that section, for the words "the Corporation", in each place where they occur, there shall be substituted "the person who makes the sale".

Apparatus of statutory undertakers

9 Section 13 (effect in relation to apparatus of statutory undertakers of opencast planning permission) shall cease to have effect.

Agricultural tenancies in England and Wales

10 In section 14(6) (arbitration under section 12 of the [1986 c. 5.] Agricultural Holdings Act 1986 in cases where opencast planning permission has been granted)--

(a) for "the Corporation are" there shall be substituted "the person with the benefit of the opencast planning permission is"; and

(b) for the words "the Corporation", in the second place where they occur, there shall be substituted "that person".

Agricultural tenancies in Scotland

11 (1) In subsection (6)(a) of section 14A (modification of section 22(2) of the [1991 c. 55.] Agricultural Holdings (Scotland) Act 1991), for "the British Coal Corporation" there shall be substituted "a person who is a licensed operator within the meaning of the Coal Industry Act 1994 or whose application for a licence under Part II of that Act is pending".

(2) In subsection (8) of that section (arbitration under section 13 of that Act of 1991)--

(a) for "the Corporation are" there shall be substituted "the person with the benefit of the opencast planning permission is"; and

(b) for the words "the Corporation", in the second place where they occur, there shall be substituted "that person".

Suspension of rights of way

12 (1) In subsection (1) of section 15 (orders for suspension of right of way)--

(a) in paragraph (a), for "the Corporation apply" there shall be substituted "any person applies"; and

(b) in the words after paragraph (b), for "the Corporation may also apply to the Secretary of State" there shall be substituted "that person may also apply to the Coal Authority".

(2) In subsection (2) of that section--

(a) for "Secretary of State shall not make such an order" there shall be substituted "Coal Authority shall not make an order under this section";

(b) in paragraph (a), for "is granted" there shall be substituted "has been applied for or granted"; and

" (aa) it is satisfied that the applicant--

(i) is a licensed operator within the meaning of the Coal Industry Act 1994 or a person whose application to the Coal Authority for a licence under Part II of that Act is pending; and

(ii) has complied with the requirements of section 15A of this Act before submitting the application;

and

(b) it is also satisfied--

(i) that a suitable alternative way will be made available by the applicant " .

(3) For subsection (3) of that section there shall be substituted the following subsections--

" (3) An order under this section--

(a) shall not have effect unless confirmed by the Secretary of State; and

(b) where it has been confirmed, shall have effect (with such modifications as the Secretary of State may in confirming it determine) so as to suspend the right of way to which it relates with effect (subject to section 15A(10) and (11) of this Act) from such date as may be determined by the Secretary of State and specified in the order as confirmed.

(3A) Where at any time after an application for an order under this section has been made and before any order made on that application is confirmed--

(a) any person becomes the successor of the original applicant for the order and notifies that fact--

(i) if no order has been made on the application, to the Coal Authority, or

(ii) if such an order has been made, to the Secretary of State,

and

(b) the Authority or, as the case may be, the Secretary of State decides to proceed in relation to the application or order in accordance with this subsection,

the provisions of this Act shall have effect as if the application had been made by that person, as if he had the same right to make it as the original applicant and as if anything done for the purposes of the application by or in relation to the original applicant or a previous successor had been done by or in relation to that person.

(3B) The Coal Authority or, as the case may be, the Secretary of State may make a decision to proceed in accordance with subsection (3A) of this section subject to compliance by the successor giving the notification with such conditions as that Authority or the Secretary of State thinks fit. "

(4) In subsection (4) of that section, after paragraph (b) there shall be inserted " or

(c) he is satisfied that it is appropriate to do so on account of any failure on the part of the person on whose application the order was made to comply with any of the requirements of section 15A(10) of this Act. "

(5) In subsection (5) of that section, for the words from "include" to "to", in the second place where it occurs, there shall be substituted "not be made except where such conditions for the making of the order are imposed or such other provision is included in the order as may".

(6) After subsection (5) there shall be inserted the following subsection--

" (5A) For the purposes of subsection (5) above a local planning authority may enter into an agreement with any applicant for an order under this section as to the steps to be taken by that person or any of his successors for securing the reconstruction of the way in question; and such an agreement shall have effect, so far as it relates to steps to be taken by any successor of the applicant, as if that successor had been a party to it and was bound by it to the same extent as the applicant. "

Supplementary provisions about suspension of rights of way

13 (1) In subsection (1) of section 15A (supplementary provisions in relation to the suspension of rights of way)--

(a) for the words from the beginning to the words "the Corporation", in the first place where they occur, there shall be substituted--

" (1) Before any person submits an application to the Coal Authority for an order under section 15 of this Act, that person " ;

(b) in paragraph (a), for "the Corporation are" there shall be substituted "that person is";

" (aa) whether the applicant is proposing to make available any alternative way and, if he is, what the alternative is; and " ;

(d) paragraph (c) (notice to specify objection procedure) and the word "and" immediately preceding it shall be omitted.

(2) After that subsection there shall be inserted the following subsection--

" (1A) As soon as reasonably practicable after making an order under section 15 of this Act the Coal Authority shall submit the order to the Secretary of State for confirmation and publish a notice in the prescribed form identifying the right of way in question and stating--

(a) that the Coal Authority has made an order that will suspend the right of way in connection with the working of coal by opencast operations and has submitted the order for confirmation to the Secretary of State;

(b) whether the applicant for the order is to make any alternative way available and, if he is, what the alternative is;

(d) that objections to the confirmation of the order may be made in writing to the Secretary of State within such time, not being less than 28 days from the publication of the notice, as may be specified. "

(3) In subsection (2) of that section, after "subsection (1)" there shall be inserted "or (1A)".

(4) After subsection (2) of that section there shall be inserted the following subsection--

" (2A) The Secretary of State shall not confirm an order under section 15 of this Act unless he thinks fit and--

(a) he is satisfied that the notice required by subsection (1A) above has been published in relation to that order and that the requirements of subsection (5) below have been satisfied in relation to that notice;

(b) the period within which objections may be made in accordance with that notice has expired; and

(5) In subsection (4) of that section--

(a) after "subsection (1)" there shall be inserted "or (1A)"; and

(b) after "the application" there shall be inserted "or, as the case may be, the order".

(6) In subsection (5) of that section--

(a) for the words from the beginning to "the Secretary of State" there shall be substituted--

" (5) Where any person is required under subsection (1) or (1A) above to publish any notice, he shall also-- " ;

(b) in paragraph (a), for the words from "of the right" onwards there shall be substituted (after sub-paragraph (ii))-- " of the submission of the application or, as the case may be, of the making of the order; "

(c) in paragraph (b), for "their notice under subsection (1) above" there shall be substituted "the notice under subsection (1) or (1A) above"; and

(d) in paragraph (c), for the words from "their" onwards there shall be substituted "the matters contained in the notice under subsection (1) or (1A) above."

(7) Subsection (6) of that section shall cease to have effect.

(8) In subsection (7) of that section--

(a) for "make" there shall be substituted "confirm"; and

(b) after "authority" there shall be inserted "other than a parish or community council or parish meeting as is mentioned in subsection (5)(a) above".

(9) In subsection (8) of that section, for "make" there shall be substituted "confirm".

(10) In subsection (9) of that section--

(a) the word "Corporation's" shall be omitted;

(b) for "the Secretary of State" there shall be substituted "the Coal Authority"; and

(c) at the end there shall be inserted "; and this subsection shall be without prejudice to the power of the Secretary of State, by virtue of subsection (3) of that section, to make further modifications when confirming the order."

(11) In subsection (10) of that section--

(a) for the words from the beginning to "publish" there shall be substituted--

" (10) A confirmed order under section 15A of this Act shall not have effect at any time before the person on whose application the confirmed order was made has published " ;

(b) for "has been made" there shall be substituted "has been confirmed";

(d) for "shall serve a like notice and a copy of the order" there shall be substituted " has served a like notice and a copy of the order and of such a map " .

(12) In subsection (11) of that section, for paragraphs (a) and (b) there shall be substituted "in the manner specified in subsection (2) in relation to notices for the purposes of subsection (1) above; and an order that fails, by virtue of subsection (10) above, to come into operation on the date specified in the order shall come into operation on the date of the last publication required by virtue of this subsection."

Orders conferring rights for drainage or water supply purposes

14 (1) In subsections (1) and (2) of section 16 (orders for drainage and water supply purposes), for the words from "granted" to "compulsorily", in each subsection, there shall be substituted "applied for or granted, the Coal Authority, on an application in accordance with subsection (2A) below, may, by means of an order made by that Authority and confirmed by the Secretary of State, confer on the person with the benefit of the permission".

(2) After subsection (2) of that section there shall be inserted the following subsection--

" (2A) The Coal Authority shall not make an order under this section except on the application of a person who--

(a) is the person with the benefit of the opencast planning permission or, where the permission has been applied for but has not been granted, the person who will have the benefit of that permission;

(b) satisfies that Authority that he is either a licensed operator within the meaning of the Coal Industry Act 1994 or a person whose application to that Authority for a licence under Part II of that Act is pending; and

(c) also satisfies that Authority that he has served notice in the prescribed form of the application for the order on every owner, lessee and occupier of the other land (except tenants for a month or any period of less than a month);

and an order made before the opencast planning permission has been granted shall not be confirmed until after it has been granted. "

(3) In subsection (3) of that section--

(a) for "authorising the compulsory purchase of" there shall be substituted "conferring";

(b) after "was" there shall be inserted "applied for or"; and

(4) For subsection (4) of that section (effect of order), including that subsection as substituted for Scotland by subsection (9) of that section, there shall be substituted the following subsection--

" (4) Any right conferred by an order under this section shall be exercisable by, or by any person authorised by--

(a) a person who--

(i) is for the time being in occupation of the land specified in accordance with subsection (3) of this section in the order;

(ii) is the person on whom the right was conferred; and

(iii) was in occupation of that land when it was conferred;

(b) a person who is for the time being in occupation of the land by virtue of the transfer to him either--

(i) by, or with the written approval of, the Coal Authority, or

(ii) in any other case described in the order,

of any interest or right which, at the time when the right was conferred under this section, was vested in a person who became entitled to exercise it by virtue of paragraph (a) above;

and a right conferred by an order under this section (whether or not conferred while the person on whom it was conferred was in occupation of the land) shall, in the case of land in England and Wales, be treated as an easement appurtenant in perpetuity to that land, and, in the case of land in Scotland, be recorded in the Register of Sasines or as the case may be registered in the Land Register of Scotland by the person on whom the right is conferred. "

(5) In subsection (4A) of that section (which for England and Wales provides for the application of compulsory purchase legislation), for the words from the beginning to "as if" there shall be substituted--

" (4A) For the purposes of any order conferring rights exercisable under this section on any land in England and Wales--

(a) Parts II to IV of the [1981 c. 67.] Acquisition of Land Act 1981 shall apply as they would apply in relation to a compulsory rights order in which that land is comprised, and section 29 of that Act shall apply accordingly but with the omission of subsections (4) and (5); and

(b) the [1965 c. 56.] Compulsory Purchase Act 1965 shall have effect as if--

(i) the conferring of those rights were the compulsory acquisition of those rights by the person on whom they are conferred; and

(ii) " .

(6) After subsection (4A) of that section there shall be inserted the following subsections--

" (4B) Where at any time after an application for an order under this section has been made and before any order made on that application is confirmed--

(a) any person becomes the successor of the original applicant for the order and notifies that fact--

(i) if no order has been made on the application, to the Coal Authority, or

(ii) if such an order has been made, to the Secretary of State,

and

(b) the Authority or, as the case may be, the Secretary of State decides to proceed in relation to the application or order in accordance with this subsection,

(4C) The Coal Authority or, as the case may be, the Secretary of State may make a decision to proceed in accordance with subsection (4B) of this section subject to compliance by the successor giving the notification with such conditions as that Authority or the Secretary of State thinks fit. "

(7) For subsection (5) of that section there shall be substituted the following subsection--

" (5) In relation to any order conferring rights exercisable under this section as regards any land in Scotland Parts I, III and IV of Schedule 1 to the Scottish Acquisition of Land Act (and the enactments incorporated with that Act) shall apply as they would apply in relation to a compulsory rights order in which that land is comprised, and section 4(5) of this Act shall apply accordingly but as if the section did not relate to paragraphs 3 and 4 of Schedule 2 to this Act. "

(8) In subsection (6) of that section, for "a compulsory purchase order made by virtue of" there shall be substituted "an order made and confirmed under".

(9) After subsection (7) of that section there shall be inserted the following subsection--

" (7A) Subsections (2) and (3) of section 12 of the [1981 c. 67.] Acquisition of Land Act 1981 (statutory tenants etc. and ecclesiastical property) shall have effect in relation to the service of a notice under this section as respects any land in England and Wales as they have effect in relation to the service of a notice under that section. "

(10) Subsection (9) of that section shall cease to have effect.

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