Schedule 2Roads Act (2005 Revision)
ASSESSMENT AND PAYMENT OF COMPENSATION
Part IGeneral
1Definitions and interpretation
(1)In this Schedule —
"chairman" means the chairman of the Committee;
"market value" means the amount which the land if sold on the open market by a willing seller might be expected to realise;
"might be expected to realise" refers to the expectation of properly qualified persons who are informed of all particulars ascertainable about the property and its capabilities, the demand for it and likely buyers:
"person interested", as respects any portion of land, includes the claimant and any other person accepted by the Roads Authority as having an interest in the land likely to be affected by the claim;
"profits" includes profits in the nature of rents but does not include profits a prendre or such profits as may have been made by carrying on a business upon the land; and
"willing seller'' means a person selling as a free agent, as distinct from one who is forced to sell under compulsory powers.
(2)For the purposes of this Law a person entitled to two interests in land shall be taken to be entitled to them in the same capacity if, but only if, he is entitled —
(a)to both of them beneficially;
(b)to both of them as trustee of one particular trust; or
(c)to both of them as personal representative of one particular person.
2Proceedings of the Committee
(1)The assembling of members of the Committee for the purpose of determining eligibility for and the amount of compensation payable in respect of any claim and the proceedings thereat are hereinafter referred to as “proceedings”.
(2)Proceedings shall be held in public: Provided that the amount of compensation awarded, if any, shall not be communicated by the Committee to any person other than the Road Authority or its representative and a person interested or any other person representing, pursuant to this paragraph, the person interested.
(3)The chairman presides over the proceedings and may adjourn the proceedings, from time to time, as he thinks fit.
(4)Any public officer duly authorised in that behalf by the Governor and any person interested or any person bona fide claiming to be interested in the land to be acquired, or enabled to sell and convey the land, is entitled to give evidence at the proceedings and to make representations to the Committee either directly or through an attorney-at-law or through any other person whom the chairman allows to make representations in that behalf.
(5)Evidence taken in the proceedings is on oath.
(6)The Committee may order that the costs of any proceedings incurred by any party shall be paid by any other party and may tax or settle the amount of any costs to be paid under any such order or direct in what manner they are to be taxed.
(7)Not more than one expert witness on either side shall be heard unless the Committee otherwise directs.
(8)Except as otherwise provided in this Law, the procedure at the proceedings shall be such as the Committee, in its discretion, determines.
3Power to summon witnesses, etc.
(1)Pending or during the proceedings, the chairman may summon any person to give evidence at the proceedings.
(2)Whoever, summoned to give evidence at the proceedings, fails without reasonable excuse to attend the proceedings as directed by summons, or refuses to give evidence when required by the chairman to do so, is guilty of an offence and liable on summary conviction to a fine of five thousand dollars: Provided that a person required to give evidence at the proceedings shall be entitled to all the protection and privileges to which he would have been entitled if the proceedings had been proceedings before the Grand Court.
4Inspection of land by Committee
(1)The Committee, before determining the amount of compensation payable in respect of any land, may inspect the land and for that purpose may, at any reasonable hour, enter that land and any building thereon.
(2)Whoever obstructs any member of the Committee in the exercise of his duties under subparagraph (1) is guilty of an offence and liable on summary conviction to a fine of five thousand dollars.
5Preliminary determination of qualification to claim compensation
(1)Before proceeding with a claim for compensation, the Committee shall determine whether the claimant qualifies to make a claim for compensation having regard to sections 8 and 9.
(2)If the Committee decides that the claimant qualifies as aforesaid it shall proceed to determine the amount of the compensation in accordance with this Law.
(3)If the Committee decides that the claimant does not qualify as aforesaid it shall, subject to any appeal to the Grand Court, not proceed further with the case.
(4)For the purposes of any appeal to the Grand Court, the decision of the Committee under this paragraph shall be treated as if it were an award.
6Assessment of compensation
(1)In determining the amount of compensation to be awarded in respect of any portion of land under this Law, the Committee shall take into consideration —
(a)the market value of the land at the declared day;
(b)the damage sustained by the claimant by reason of the taking of any standing crops or trees which are on the land at the time of the taking possession thereof;
(c)any damage sustained by the claimant at the time of the taking possession of the land, by reason of the severing of such land from his other land;
(d)any damage sustained by the claimant at the time of the taking of the portion of land, by reason of the dispossession injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
(e)if, in consequence of the dispossession, the claimant is compelled to change his residence or place of business, the reasonable expenses incidental to such change;
(f)any damage bona fide resulting from diminution of the profits of the land between the declared day and the time of the taking possession of the land; and
(g)any increase in the value of the claimant’s interest —
(i)in any remaining portion of the land in respect of which the claim is made; and
(ii)in other land contiguous or adjacent to (whether or not actually touching) any land mentioned in subparagraph (i) to which the claimant was entitled in the same capacity on the declared day; and
which is likely to accrue from the use to which the land subject of the claim will be put.
(2)In determining the amount of compensation to be awarded in respect of any portion of land under this Law, the Committee shall not take into consideration —
(a)the fact that the action taken is compulsory;
(b)the degree of urgency which has led to the action taken;
(c)any disinclination on the part of the claimant to part with the land taken;
(d)any damage sustained by the claimant which, if caused by a private person, would not render such person liable to a suit;
(e)any damage which is likely to be caused to the portion of land after the declared day by or in consequence of the use to which it will be put;
(f)any increase to the value of the portion of land likely to accrue from the use to which it will be put after dispossession;
(g)any outlay or improvements on, or disposal of, the portion of land commenced, made or effected without the sanction of the Roads Authority after the declared day; or
(h)the special suitability or adaptability of the portion of land for any purpose if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser.
(3)In assessing the value of any interest in respect of which the claim is made, it shall be assumed —
(a)that planning permission would be granted in respect of the land in which the interest subsists (“the relevant land”) for a use which conforms with the planning use outline in the development plan for that location and for which it is reasonable to assume that planning permission would have been granted;
(b)where an order has been made under section 15 of the Development and Planning Law (2005 Revision) in respect of the relevant land or any part thereof, requiring the removal of any building or the discontinuance of any use, that planning permission would not be granted in respect of the relevant land or any part thereof for the rebuilding of that building or the resumption of that use; and
(c)that planning permission would not be granted in respect of the relevant land or any part thereof for any development other than such development as is mentioned in paragraph (a); and if planning permission has been granted for such other development it shall be assumed that the planning permission has not been granted insofar as it relates to development that has not been carried out.
(4)Where, upon a claim being made, the Assessment Committee is satisfied that the portion of contiguous land remaining to the claimant is less than one-half acre, and considers that the amount due to the claimant in respect of sub-subparagraphs (a), (c) and (d) of subparagraph (1) exceeds or is likely to exceed the market value of the whole portion (being the portion taken or to be taken, together with the land remaining to the claimant), the Assessment Committee shall signify this to the Roads Authority, which may then proceed to acquire the whole portion and pay therefor compensation calculated in accordance with this paragraph, with the exception of sub-subparagraphs (c) and (d) of subparagraph (1).
7Award of Committee
(1)The Committee, after determining the total amount of compensation, if any, under paragraph 6, shall embody their conclusions in a written award signed and dated by the chairman and, as far as is practicable, shall show in the award the several amounts awarded as compensation under headings corresponding to the several matters which are required to be taken into consideration by paragraph 6.
(2)If the Committee are not unanimous, their decisions shall be governed by the votes of the majority.
(3)The chairman shall deliver the award and the record of the proceedings to the Roads Authority, and the Roads Authority shall, within seven days of the date of the award, cause a certified copy of the award to be given to each person interested; and thereupon, subject to section 11, the total amount of the award shall become payable in accordance with this Law to the persons entitled thereto.
8Appeal to Grand Court
(1)The Roads Authority or any person interested in the portion of land or having a right over such land, who is aggrieved by an award of the Committee under this Law may, within twenty-one days of the date of the award or such longer period as the Grand Court may for good cause allow, appeal to the Grand Court on the ground that —
(a)the extent of the interest or right in the portion of land has been wrongly determined; or
(b)the Committee has erred in a matter of law.
(2)Proceedings under subparagraph (1) may be regulated by rules of court.
(3)On the hearing of an appeal brought under this paragraph, the Grand Court may make such order (including an order for costs) as it thinks fit.
Part IIPayment of Compensation Money
9Definitions in Part II
In this Part —
"compensation money"means the amount of the award of the Committee, or any part thereof;
"Court"means the Grand Court;
"land"means any portion of land which has been the subject of an award by the Committee; and
"person entitled"means any person whom the Committee or the Court, as the case may be, determines to be a person who has a good title to compensation money.
10Interest
(1)Any compensation awarded for an interest in land under this Law shall carry interest, at the rate of six per cent per annum, from the date of the award until the compensation is paid or paid into court under this Law.
(2)Where assessment is made on the basis of the two-stage assessment referred to in section 11, reference in subparagraph (1) to the award shall be construed as reference to the final award.
(3)The Governor may, from time to time by order in the Gazette, change the rate of interest payable under this paragraph and, notwithstanding anything to the contrary, the changed rate shall apply to awards bearing interest at the date on which the order has effect.
11Payment of compensation money to persons entitled
(1)Subject to subparagraph (2), compensation money shall be paid by the Roads Authority to the person entitled according to the estate, interest or right which he possessed in or over the land.
(2)Where there are two or more persons entitled who had varying estates or interests in the land, then, if such persons agree among themselves as to the apportionment of the compensation money, the Roads Authority shall pay them the compensation money in accordance with their agreement, and the terms of any such agreement shall be notified to the Roads Authority in writing signed by all the parties thereto.
Subject as hereinafter provided, in any case where —
(a)a person entitled refuses to accept compensation money tendered to him by the Roads Authority;
(b)a person entitled cannot after reasonable enquiry be found;
(c)a person entitled is a person under a legal disability;
(d)there are two or more persons entitled who had varying estates or interests in the land and who are unable to agree among themselves as to the apportionment of the compensation money; or
(e)there is no person entitled to the compensation money or no person entitled to compensation money in respect of some particular estate or interest in the land,
the Roads Authority shall pay the compensation money into the Court:
Provided that in the case of a person under a legal disability the Roads Authority may pay compensation money to any person who is empowered by law to receive and give a valid discharge for such money on behalf of the person under the legal disability.
12Disposal of money paid into Court
Any money paid into the Court under this Law may, on the application of any person claiming to be entitled thereto, or of any person lawfully representing any such person, be dealt with and disposed of as the Court may think fit; and the Court, in directing payment out of Court of any such money, may impose such terms and conditions as to the investment of the money or the creation of a trust in respect thereof or otherwise as the Court may think proper having regard to the circumstances.
13Procedure on non-payment of compensation
(1)Where a person is, by virtue of an award of the Committee or an order of the Court made under paragraph 8, entitled to compensation money, that person may apply to the Court for an order that the compensation money be paid forthwith.
(2)On an application made under subparagraph (1), the Court may grant or refuse the order and make such order as to costs as it thinks just.
(3)Where the Court makes an order that compensation money shall be paid forthwith, the sum due shall thereupon become a charge on the assets of the Roads Authority and shall be paid by the Roads Authority to the person named in the order of the Court within seven days of the date of the order.
Part IIISupplemental Provisions
14Service of notices
(1)Any notice, order or other document which is required to be served under this Schedule on any person may be served —
(a)by delivering it to the person on whom it is to be served;
(b)by leaving it at the usual or last known place of abode of that person;
(c)by sending it by prepaid post addressed to that person at his usual or last known postal address;
(d)in the case of a body corporate, by delivering it or sending it by prepaid post to the secretary or clerk of that body at its registered office or other place of business; or
(e)if it is not practicable to effect service by any of such methods as aforesaid, by addressing it to him by the description of "owner" or, as the case may be, "occupier" of the land to which it relates and by delivering it to some person occupying any premises on the land; or, if there is no such person to whom it can be delivered, by affixing it or a copy thereof to some conspicuous part of the premises.
(2)Service effected by delivery under subparagraphs (a) or (d) of subparagraph (1) shall have effect from the time of delivery.
(3)Service effected otherwise than by delivery shall be deemed to have been effected three days after the steps taken under subparagraph (1) have been taken unless and to the extent that the contrary is proved.
15Proof of service
In any proceedings a certificate purporting to be under the hand of a public officer and specifying the steps taken under paragraph 14(1) to effect service of any notice, order or other document on any person on any date shall be prima facie evidence of the facts stated therein.