Commentary on Sections Part 3 – Dealing With Tip Instability and Threats to Tip Stability Schedule 3 – Modifications of sections 51 and 52 where a notice under section 35 is cancelled
206.Schedule 3 sets out the following modifications that will apply to sections 51 and 52 where the Authority cancels a notice it has given to an owner under section 35.
207.Where section 51 or 52 refers to operations carried out in compliance with a notice given under section 35, this is to be read as a reference only to operations carried out before the notice was cancelled.
208.The amount of expenses reasonably incurred by the owner in carrying out operations must be calculated for the purposes of determining the total amount in relation to which an owner is entitled to a contribution under section 51 or whether the grounds of an application to vary or cancel a demand for a contribution under section 52 are made out. Paragraph 3(1) of Schedule 3 provides that when calculating the amount of expenses reasonably incurred in carrying out operations in circumstances where the notice is cancelled, any sum that falls within paragraph 3(1)(a) and (b) must be deducted. A sum falls within paragraph 3(1)(a) and (b) if it is recoverable or has been recovered by the owner from the Authority under section 43 (see paragraphs 174 to 179 above) and relates to expenses the owner incurred in consequence of the notice given to them under section 35.
209.Under paragraph 3(2), where a notice is cancelled an owner of land is not entitled to a contribution under section 51 in respect of expenses they incur in carrying out works of reinstatement.
210.Paragraph 4 sets out modifications that apply if a direction is made under section 43 allowing the owner to recover sums from the Authority in respect of the expenditure the owner incurred in consequence of being given a notice under section 35. These include a requirement that any sums recoverable from the Authority as a result of the direction must be specified in any demand given under section 51 for a contribution towards the owner’s expenses. A person who is given such a demand may apply under section 52 to vary or cancel the demand on the ground that the amount claimed in the demand does not make proper allowance for a sum that must be deducted by virtue of paragraph 3.