The York Potash Harbour Facilities Order 2016

Restriction on exercising powers

25.—(1) The undertaker must not exercise the powers conferred by articles 24 (compulsory and other acquisition of rights) and 25 (power to override easements and other rights) to acquire, appropriate, extinguish, suspend or override any rights in the protected land relating to the pipelines or access to pipelines except in relation to unknown rights.

(2) Regardless of sub-paragraph (1) the undertaker must not exercise the identified powers unless one of the following consents has been given—

(a) written consent by the owner of the protected land and the operator of any affected pipeline;

(b) consent by an expert appointed under paragraph 34; or

(c) deemed consent in accordance with sub-paragraph (7).

(3) Where an identified power provides for the undertaker to automatically extinguish or override a right or interest of an owner of the protected land, the restriction in sub-paragraph (2) is to operate so that the extinguishment or override of the right or interest does not apply unless the owner of the right or interest has given its consent or consent has been given by an expert appointed under paragraph 34 or is deemed to be given under sub-paragraph (7).

(4) Where a person’s consent is required under sub-paragraph (2), that consent must not be unreasonably withheld.

(5) If the undertaker considers that consent has been unreasonably withheld, the undertaker may refer the request for consent to an expert appointed under paragraph 34 for determination.

(6) If an owner of the protected land or operator of a pipeline fails to respond to a request for consent within 30 days of the undertaker obtaining a written acknowledgement of receipt of the request for consent from the specified person the undertaker may serve a further notice on that owner or operator (a “deeming notice”).

(7) In the event that an owner of the protected land or operator of a pipeline fails to respond to a deeming notice within 10 working days from the date when a written acknowledgement of receipt of the deeming notice is obtained by the undertaker from the specified person, the consent of the owner of the protected land or operator of a pipeline as the case may be is deemed to be given.

(8) In this paragraph, “identified powers” means the powers conferred by the following—

(a) article 10 (street works);

(b) article 11 (temporary stopping up of streets);

(c) article 12 (access to works);

(d) article 14 (discharge of water);

(e) article 16 (authority to survey and investigate the land);

(f) article 24 (compulsory and other acquisition of rights) in so far as the exercise of such powers is not excluded by paragraph 24 (1) and sub-paragraph (1);

(g) article 25 (power to override easements and other rights) in so far as the exercise of such powers is not excluded by paragraph 24 (1) and sub-paragraph (1);

(h) article 29 (rights under or over streets); and

(i) article 30 (temporary use of land for carrying out the authorised development).