Transport Bill - continued        House of Lords

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SCHEDULE 6
 
  TRANSFER SCHEMES
 
Allocation
     1. - (1) Paragraphs 2 and 3 apply if the following two conditions are satisfied.
 
      (2) The first condition is that-
 
 
    (a) provision is made by a transfer scheme for the transfer to a transferee of a specified part of a transferor's undertaking, or
 
    (b) provision is made by a transfer scheme (or transfer schemes) for the transfer to different transferees of different specified parts of a transferor's undertaking.
      (3) The second condition is that any property, right or liability falls partly in one part of the undertaking and partly in another or others; and the parts of the undertaking are-
 
 
    (a) the part (or each part) transferred, and
 
    (b) if a part is retained by the transferor, that part.
      (4) In paragraphs 2 and 3 references to the parties are to-
 
 
    (a) the transferee or transferees concerned, and
 
    (b) the transferor (if he retains part of the undertaking).
      (5) Paragraphs 2 and 3 do not apply to rights or liabilities under a contract of employment.
 
     2. - (1) If the nature of the property, right or liability permits, it must be apportioned in appropriate proportions between the parties; and each appropriate part must be taken to have been transferred to a transferee or retained by the transferor.
 
      (2) If an estate or interest in land is to be apportioned under sub-paragraph (1)-
 
 
    (a) any rent payable under a lease in respect of the estate or interest, and
 
    (b) any rent charged on the estate or interest,
       must be apportioned so that an appropriate part of the rent is payable in respect of (or charged on) the appropriate part of the estate or interest.
 
      (3) Sub-paragraph (2) applies, with any necessary modifications, in relation to any feuduty payable in respect of an estate or interest in land in Scotland as it applies in relation to any rent charged on an estate or interest in land.
 
     3. - (1) If the nature of the property, right or liability does not permit it to be apportioned as mentioned in paragraph 2(1), it must be taken to have been transferred to a transferee or retained by the transferor in accordance with the tests in sub-paragraphs (2) and (3).
 
      (2) In the case of an estate or interest in land the test is-
 
 
    (a) which one of the parties has the greater (or greatest) need of the estate or interest for business purposes, or
 
    (b) if it is not possible to say that one of them has the greater (or greatest) need, which one of them is likely to make more (or the most) use of the land.
      (3) In the case of any other property or any right or liability, the test is which one of the parties is likely-
 
 
    (a) to make more (or the most) use of the property, or
 
    (b) to be more (or the most) affected by the right or liability.
      (4) The tests in sub-paragraphs (2) and (3) must be applied at-
 
 
    (a) the time when the transfer scheme comes into force (or schemes come into force), or
 
    (b) if there are two or more schemes and they come into force at different times, the later or latest of the times.
      (5) The preceding provisions of this paragraph apply subject to any arrangements made by the parties as to the protection of the interests of any of them.
 
 
Identification
     4. - (1) Paragraphs 5 to 7 apply if-
 
 
    (a) provision is made by a transfer scheme for the transfer to a transferee of a specified part of a transferor's undertaking, or
 
    (b) provision is made by a transfer scheme (or transfer schemes) for the transfer to different transferees of different specified parts of a transferor's undertaking.
      (2) It is immaterial whether or not the second condition set out in paragraph 1 is satisfied.
 
      (3) In paragraphs 5 to 7 references to the parties are to-
 
 
    (a) the transferee or transferees concerned, and
 
    (b) the transferor (if he retains part of the undertaking).
      (4) Paragraphs 5 to 7 do not apply to rights or liabilities under a contract of employment.
 
     5. - (1) The parties must, so far as practicable, make any written agreement necessary or expedient to identify what is to be taken to have been transferred to whom and what (if anything) is to be taken to have been retained.
 
      (2) The duty under sub-paragraph (1) has effect before as well as after the coming into force of any transfer scheme concerned.
 
     6. - (1) If the Secretary of State thinks it is unlikely that agreement will be reached on a matter where agreement is required under paragraph 5 he may serve a notice on the parties.
 
      (2) A notice may be served-
 
 
    (a) whether or not representations are made by a party;
 
    (b) before or after the coming into force of any transfer scheme concerned.
      (3) A notice may specify the terms of the agreement which the Secretary of State thinks the parties should have made under paragraph 5 in relation to the matter concerned.
 
      (4) If a notice is served under this paragraph the parties are to be treated as having made an agreement in the terms specified.
 
     7. - (1) This paragraph applies if-
 
 
    (a) an agreement made under paragraph 5, or
 
    (b) an agreement treated as made by paragraph 6,
       contains provision to the effect that any property, right or liability is to be taken to have been transferred to a transferee.
 
      (2) The property, right or liability is to be treated as having been transferred to the transferee by the scheme concerned (or, if there are two or more schemes, such of them as the agreement specifies).
 
 
Discharge of functions
     8. - (1) Paragraphs 9 and 10 apply if-
 
 
    (a) provision is made by a transfer scheme for the transfer to a transferee of a specified part of a transferor's undertaking, or
 
    (b) provision is made by a transfer scheme (or transfer schemes) for the transfer to different transferees of different specified parts of a transferor's undertaking.
      (2) It is immaterial whether or not the second condition set out in paragraph 1 is satisfied.
 
      (3) In paragraphs 9 and 10 references to the parties are to-
 
 
    (a) the transferee or transferees concerned, and
 
    (b) the transferor (if he retains part of the undertaking).
      (4) Paragraphs 9 and 10 do not apply to rights or liabilities under a contract of employment.
 
      (5) Sub-paragraph (6) applies if at the time a transfer scheme comes into force a transferor or transferee under the scheme is-
 
 
    (a) a company which is wholly owned by the Crown;
 
    (b) a company which is wholly owned by the CAA;
 
    (c) a company which is a wholly owned subsidiary of a company falling within paragraph (a) or (b).
      (6) Paragraphs 9 and 10 cease to apply in relation to the scheme concerned at the time when the transferor or any one of the transferees under the scheme ceases to be a company which falls within any of paragraphs (a) to (c) of sub-paragraph (5).
 
     9. - (1) The parties must, so far as practicable, make any written agreement and execute any other instrument necessary or expedient to-
 
 
    (a) give to any party (as against another or others) any rights and safeguards needed for carrying out the party's functions;
 
    (b) modify the division of the transferor's undertaking in order to help the parties in carrying out their functions.
      (2) An agreement or instrument under sub-paragraph (1) may provide-
 
 
    (a) for the granting of leases and for the creation of other rights and liabilities over land (whether or not amounting in law to interests in land and whether or not involving the surrender of any existing interest or the creation of a new interest);
 
    (b) for the granting of indemnities in connection with the severance of leases and other matters;
 
    (c) for responsibility for registration of any matter in any statutory register.
      (3) The duty under sub-paragraph (1) has effect before as well as after the coming into force of any transfer scheme concerned.
 
     10. - (1) If the Secretary of State thinks it is unlikely that agreement will be reached on a matter where agreement is required under paragraph 9 he may serve a notice on the parties.
 
      (2) A notice may be served-
 
 
    (a) whether or not representations are made by a party;
 
    (b) before or after the coming into force of any transfer scheme concerned.
      (3) A notice may specify the terms of the agreement which the Secretary of State thinks the parties should have made under paragraph 9 in relation to the matter concerned.
 
      (4) If a notice is served under this paragraph the parties are to be treated as having made an agreement in the terms specified.
 
 
Transfers by agreement
     11. - (1) If a transfer scheme provides for property, rights or liabilities to be transferred from a transferor to a transferee, they may agree that such of the property, rights or liabilities as are specified in the agreement are to be transferred from the transferee to the transferor.
 
      (2) If one or more transfer schemes provide for different property, rights or liabilities to be transferred to different transferees, any transferee may agree with another that such of the property, rights or liabilities as are specified in the agreement are to be transferred from one to the other.
 
      (3) This paragraph does not apply to rights or liabilities under a contract of employment.
 
      (4) An agreement under this paragraph-
 
 
    (a) must be in writing;
 
    (b) must be made before the end of the required period;
 
    (c) must be made with the Secretary of State's approval.
      (5) The required period is the period of 12 months starting with-
 
 
    (a) the day on which the transfer scheme comes into force (or schemes come into force), or
 
    (b) if there are two or more schemes and they come into force on different days, the later or latest of the days.
      (6) An agreement under this paragraph may provide for a transfer to take effect on a date specified in or determined in accordance with the agreement; but the agreement may provide that a transfer is not to take effect unless the circumstances are such as the agreement specifies.
 
      (7) When a transfer agreed under this paragraph takes effect the agreement has effect to transfer (in accordance with its provisions) the property, rights or liabilities concerned, subject to any enactment which provides for transactions to be registered in a statutory register.
 
 
Documents of title
     12. - (1) This paragraph applies if on a transfer under a transfer scheme a transferor is entitled to retain possession of any document relating in part to the title to, or to the management of, any land or other property transferred to a transferee.
 
      (2) If the land or other property is situated in England and Wales-
 
 
    (a) the transferor is to be treated as having given the transferee an acknowledgement in writing of the transferee's right to production of the document and to delivery of copies of it, and
 
    (b) section 64 of the Law of Property Act 1925 (production and safe custody of documents) is to apply to the acknowledgement and is to apply on the basis that the acknowledgement does not contain an expression of contrary intention.
      (3) If the land or other property is situated in Scotland, subsections (1) and (2) of section 16 of the Land Registration (Scotland) Act 1979 (omission of certain clauses in deeds) is to have effect in relation to the transfer as if the transfer had been effected by deed and as if from each of those subsections the words "unless specially qualified" were omitted.
 
      (4) If the land or other property is situated in Northern Ireland-
 
 
    (a) the transferor is to be treated as having given the transferee an acknowledgement in writing of the transferee's right to production of the document and to delivery of copies of it, and
 
    (b) section 9 of the Conveyancing Act 1881 (which corresponds to section 64 of the Law of Property Act 1925) is to apply to the acknowledgement and is to apply on the basis that the acknowledgement does not contain an expression of contrary intention.
 
Foreign property, rights and liabilities
 
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