Planning Act 2008

137 Public rights of way: statutory undertakers' apparatus etc.

(1) The following provisions of this section apply if—

(a) an order granting development consent makes provision for the acquisition of land, compulsorily or by agreement,

(b) a public right of way exists over the land,

(c) the right of way is not a right enjoyable by vehicular traffic, and

(d) the right of way is over land falling within subsection (2).

(2) Land falls within this subsection if it is land on, over or under which there is—

(a) apparatus belonging to statutory undertakers, or

(b) electronic communications apparatus kept installed for the purposes of an electronic communications code network.

(3) The order granting development consent may include provision for the right of way to be extinguished only if the undertakers or the operator of the network (as the case may be) consent to the inclusion of the provision.

(4) The consent referred to in subsection (3)—

(a) may be given subject to the condition that there are included in the order such provisions for the protection of the undertakers or the operator (as the case may be) as they may reasonably require, and

(b) must not be unreasonably withheld.

(5) Any question arising under subsection (4) whether any requirement or refusal is reasonable is to be determined by the Secretary of State.

(6) The question of which Secretary of State should make a determination under subsection (5) is to be determined by the Treasury, if it arises.

(7) In this section and section 138 “statutory undertakers” means persons who are, or are deemed to be, statutory undertakers for the purposes of any provision of Part 11 of TCPA 1990.

(8) In this section and section 138 the following terms have the meanings given in paragraph 1(1) of Schedule 17 to the Communications Act 2003 (c. 21)—

• “electronic communications apparatus”;

• “electronic communications code”;

• “electronic communications code network”;

• “operator”.