1. This Order may be cited as the Manston Airport Development Consent Order 2022 and comes into force on 8th September 2022.
2.—(1) In this Order—
“the 1961 Act” means the Land Compensation Act 1961(1);
“the 1965 Act” means the Compulsory Purchase Act 1965(2);
“the 1972 Act” means the Local Government Act 1972(3)
“the 1980 Act” means the Highways Act 1980(4);
“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981(5);
“the 1982 Act” means the Civil Aviation Act 1982(6);
“the 1984 Act” means the Road Traffic Regulation Act 1984(7);
“the 1990 Act” means the Town and Country Planning Act 1990(8);
“the 1991 Act” means the New Roads and Street Works Act 1991(9);
“the 2008 Act” means the Planning Act 2008(10);
“access and rights of way plans” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the access and rights of way plans for the purposes of this Order;
“address” includes any number or address for the purposes of electronic transmission;
“airport-related” development means development directly related to and required to support operations at Manston Airport including, but not limited to, freight distribution centres, including freight forwarding and temporary storage facilities for airlines;
“apparatus” has the same meaning as in Part 3 of the 1991 Act;
“authorised development” means the development and associated development described in Schedule 1 (authorised development) or any part of it, which is development within the meaning of section 32 (meaning of development) of the 2008 Act;
“book of reference” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the book of reference for the purposes of this Order;
“building” includes any structure or erection or any part of a building, structure or erection;
“carriageway” has the same meaning as in the 1980 Act;
“commence” means the carrying out of any material operation (as defined in section 155 (when development begins) of the 2008 Act) forming part of the authorised development other than operations consisting of environmental surveys and monitoring, investigations for the purpose of assessing ground conditions, diversion and laying of services, receipt and erection of construction plant and equipment, erection of any temporary means of enclosure, the temporary display of site notices or contractors’ signage and notices or installation of a site compound or any other temporary building or structure to the extent that these are not likely to harm heritage assets of national importance and their settings as defined in the further assessment of the historic character of the airfield under requirement 3(3)(a) and “commenced” and “commencement” are to be construed accordingly;
“consultative committee guidance” means the Guidelines for Airport Consultative Committees published by the Department for Transport in April 2014;
“crown land plan” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the crown land plan for the purposes of this Order;
“cycle track” has the same meaning as in the 1980 Act(11);
“design and access statement” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the design and access statement for the purposes of this Order;
“design drawings” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the design drawings for the purposes of this Order;
“design guide” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the design guide for the purposes of this Order;
“electronic transmission” means a communication transmitted—
by means of an electronic communications network; or
by other means but while in electronic form,
and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003(12);
“engineering drawings and sections” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the engineering drawings and sections for the purposes of this Order;
“environmental statement” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the environmental statement for the purposes of this Order;
“footway” and “footpath” have the same meaning as in the 1980 Act;
“highway”, “highway authority” and “local highway authority” have the same meaning as in the 1980 Act;
“Kent County Council” means Kent County Council of County Hall, Maidstone, Kent ME14 1XQ;
“land plans” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the land plans for the purposes of this Order;
“maintain” in relation to the authorised development includes to inspect, repair, adjust, alter, remove, refurbish, replace, improve or reconstruct to the extent that such works do not give rise to any materially new or materially different environmental effects from those identified in the environmental statement and any derivative of “maintain” is to be construed accordingly;
“noise mitigation plan” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the noise mitigation plan for the purposes of this Order;
“Operation Stack” means the operations known as Operation Stack and Operation Brock administered by Kent Police and Highways England for the purpose of relieving congestion on the M20 motorway;
“Operation Stack land” means the land comprising Manston Airport, Manston Road, Manston, Kent and defined as ‘the land’ in the Town and Country Planning (Manston Airport) Special Development Order 2019(13);
“Order land” means the land shown on the land plans which is within the Order limits and described in the book of reference;
“the Order limits” means the limits of lands to be acquired or used permanently or temporarily shown on the land plans and works plans within which the authorised development may be carried out;
“outline construction environmental management plan” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the outline construction environmental management plan for the purposes of this Order;
“owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981(14);
“register of environmental actions and commitments” means the document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the register of environmental actions and commitments for the purposes of this Order;
“relevant highway authority” means, in any given provision of this Order, the highway authority for the area to which the provision relates;
“relevant planning authority” means in any given provision of this Order, the planning authority for the area to which the provision relates;
“special category land plan” means the plan document of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the special category land plan for the purposes of this Order;
“statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land) or section 138(4A) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act;
“street” means a street within the meaning of section 48 (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;
“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;
“traffic authority” has the same meaning as in section 121A(15) (traffic authorities) of the 1984 Act;
“traffic regulation order plans” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the traffic regulation order plans for the purposes of this Order;
“undertaker” means RiverOak Strategic Partners Limited (company registration number 10269461) whose registered address is at Calder @AMP@amp; Co, 30 Orange Street, London WC2H 7HF;
“watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and
“works plans” means the documents of that description certified by the Secretary of State under article 41 (certification of documents, etc.) as the works plans for the purposes of this Order.
(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the airspace above its surface.
(3) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.
(4) For the purposes of this Order, all areas described in square metres in the book of reference are approximate.
(5) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the access and rights of way plans or the traffic regulation order plans.
(6) References in this Order to numbered works are references to works as numbered in Schedule 1 (authorised development).
3.—(1) Subject to the provisions of this Order including the requirements in Schedule 2 (requirements), the undertaker is granted development consent for the authorised development to be carried out within the Order limits.
(2) Any enactment applying to land within, adjoining or sharing a common boundary with the Order limits has effect subject to the provisions of this Order.
4. The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.
5.—(1) Nothing in this Order, or the construction, maintenance or operation of the authorised development under it, affects any responsibility for the maintenance of any works connected with the drainage of land, whether that responsibility is imposed or allocated by or under any enactment, or otherwise, unless otherwise agreed in writing between the undertaker and the person responsible.
(2) In this article “drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991(16).
6.—(1) In carrying out the authorised development the undertaker may—
(a)construct each work only within its relevant work limits shown on the works plans;
(b)deviate vertically downwards from the levels of the authorised development shown on the engineering drawings and sections to any extent except that any deviation to a point below existing ground level must be approved in writing by the Secretary of State in consultation with the Environment Agency and Southern Water; and
(c)deviate vertically upwards from the levels of the authorised development shown on the engineering drawings and sections to a maximum of 2 metres except in relation to the parts of the authorised development referred to in column (1) of the table below, where the maximum height for each such part is set out in the corresponding entry in column (2) of that table—
| (1) Building or Structure | (2) Maximum Height (above ordnance datum) |
|---|---|
| Cargo facilities constructed as part of Work No.1 | 67.3 metres |
| Business jet hangar constructed as part of Work No.2 | 66.1 metres |
| Fixed base operation hangars constructed as part of Work No.2 | 66.2 metres |
| Air traffic control tower constructed as part of Work No.3 | 74.0 metres |
| Radar tower constructed as part of Work No.4 | 74.0 metres |
| Terminal building constructed as part of Work No.12 | 59.6 metres |
| Fire station constructed as part of Work No.13 | 60.1 metres |
| Gatehouse constructed as part of Work No.14 | 53.2 metres |
| Gatehouse gantry constructed as part of Work No.14 | 57.2 metres |
| Commercial buildings constructed as part of Work No.15 | 66.5 metres |
| Commercial buildings constructed as part of Work No.16 | 64.2 metres |
| Commercial buildings constructed as part of Work No.17 | 64.5 metres |
| Aircraft recycling hangar constructed as part of Work No.18 | 72.8 metres |
| Fuel farm tanks constructed as part of Work No.19 | 51.0 metres |
(2) The maximum limits of vertical deviation do not apply where it is demonstrated by the undertaker to the Secretary of State’s satisfaction and the Secretary of State, following consultation with the relevant planning authority, Southern Water and the Environment Agency, certifies accordingly that a deviation in excess of these limits does not give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.
(3) In any discrepancy in any heights cited in this article and heights cited elsewhere in this Order, notably in Schedule 1, then the lower of the two is the maximum height permitted.
(4) The authorised development may not deviate within the limits of deviation specified in this article if the deviation would be likely to harm heritage assets of national importance and their settings that are considered worthy of conservation by the relevant planning authority, Kent County Council and Historic England as informed by the further assessment required by requirement 3(3)(a).
7.—(1) Subject to paragraph (2) and article 8 (consent to transfer benefit of Order), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.
(2) Paragraph (1) does not apply to the works for which consent is granted by this Order for the express benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.
8.—(1) Subject to paragraph (4), the undertaker may—
(a)transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee; or
(b)grant to another person (“the lessee”) for a period agreed between the undertaker and the lessee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed.
(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3), include references to the transferee or the lessee.
(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.
(4) The consent of the Secretary of State is required for a transfer or grant under this article, except where the transfer or grant is made to Kent County Council for the purposes of undertaking Work Nos. 25, 26, 27, 28, 29, 30, 31 and 32.
9.—(1) The authorised development must not be commenced, and the undertaker must not exercise the powers in articles 19 to 33, until—
(a)subject to paragraph (3), security of £13.1 million has been provided in respect of the liabilities of the undertaker—
(i)to pay compensation to landowners in connection with the acquisition of their land or of rights over their land by the undertaker exercising its powers under Part 5 of this Order; and
(ii)to pay noise insulation costs and relocation costs as required by requirement 9 of Schedule 2; and
(b)the Secretary of State has approved the security in writing.
(2) The security referred to in paragraph (1) may include, without limitation, any one or more of the following—
(a)the deposit of a cash sum;
(b)a payment into court;
(c)an escrow account;
(d)a bond provided by a financial institution;
(e)an insurance policy;
(f)a guarantee by a parent company or companies of the undertaker;
(g)a guarantee by a person of a sufficient financial standing (other than the undertaker).
(3) The Secretary of State is to have no liability to pay compensation in respect of the compulsory acquisition of land or otherwise under this Order.
10.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—
(a)they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act; or
(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(17) (dual carriageways and roundabouts) of the 1980 Act or section 184(18) (vehicle crossings over footways and verges) of that Act.
(2) In Part 3 of the 1991 Act, in relation to works which are major highway works by virtue of paragraph (1), references to the highway authority concerned are to be construed as references to the undertaker.
(3) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers of this Order—
section 56(19) (power to give directions as to timing of street works);
section 56A(20) (power to give directions as to placing of apparatus);
section 58(21) (restrictions following substantial road works);
section 58A(22) (restriction on works following substantial street works);
section 73A(23) (power to require undertaker to re-surface street);
section 73B(24) (power to specify timing etc. of re-surfacing);
section 73C(25) (materials, workmanship and standard of re-surfacing);
section 78A(26) (contributions to costs of re-surfacing by undertaker); and
Schedule 3A(27) (restriction on works following substantial street works).
(4) The provisions of the 1991 Act mentioned in paragraph (5) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved under, those provisions apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 12 (temporary stopping up and restriction of use of streets), whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.
(5) The provisions of the 1991 Act(28) referred to in paragraph (4) are—
section 54(29) (advance notice of certain works), subject to paragraph (6);
section 55(30) (notice of starting date of works), subject to paragraph (6);
section 57(31) (notice of emergency works);
section 59(32) (general duty of street authority to co-ordinate works);
section 60 (general duty of undertakers to co-operate);
section 68 (facilities to be afforded to street authority);
section 69 (works likely to affect other apparatus in the street);
section 75 (inspection fees);
section 76 (liability for cost of temporary traffic regulation); and
section 77 (liability for cost of use of alternative route),
and all such other provisions as apply for the purposes of the provisions mentioned above.
(6) Sections 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.
(7) Nothing in article 11 (construction and maintenance of new, altered or diverted streets)—
(a)affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act;
(b)means that the undertaker is by reason of any duty under that article to maintain a street or to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or
(c)has effect in relation to maintenance works which are street works within the meaning of the 1991 Act, as respects which the provisions of Part 3 of the 1991 Act apply.
11.—(1) Any street to be constructed under this Order must be completed to the reasonable satisfaction of the local highway authority in whose area the street lies and, unless otherwise agreed in writing with the local highway authority, must be maintained by and at the expense of the local highway authority from its completion following a specified maintenance period to be agreed with the local highway authority.
(2) Where a street is altered or diverted under this Order, the altered or diverted part of the street must, when completed to the reasonable satisfaction of the street authority in whose area the street lies and, unless otherwise agreed in writing with the street authority, be maintained by and at the expense of the street authority from its completion.
(3) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.
(4) For the purposes of a defence under paragraph (3), the court must in particular have regard to the following matters—
(a)the character of the street and the traffic which was reasonably to be expected to use it;
(b)the standard of maintenance appropriate for a street of that character and used by such traffic;
(c)the state of repair in which a reasonable person would have expected to find the street;
(d)whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and
(e)where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,
but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.
12.—(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily stop up, alter, divert or restrict the use of any street and may for any reasonable time—
(a)divert the traffic from the street; and
(b)subject to paragraph (3), prevent all persons from passing along the street.
(2) Without limitation on the scope of paragraph (1), the undertaker may use any street temporarily stopped up or restricted under the powers conferred by this article and which is within the Order limits as a temporary working site subject to the written consent of the street authority, which may attach reasonable conditions to any consent but such consent must not be unreasonably withheld or delayed.
(3) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration, diversion or restriction of a street under this article if there would otherwise be no such access.
(4) The undertaker must not temporarily stop up, alter, divert or restrict any street without the consent of the street authority, which may attach reasonable conditions to any consent but such consent must not be unreasonably withheld or delayed.
(5) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act(33).
(6) If a street authority which receives a valid application for consent under paragraph (4) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted consent.
13.—(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the public rights of way specified in column (1) of Parts 1 and 2 of Schedule 3 (permanent stopping up of public rights of way) to the extent specified and described in column (2) of that Schedule.
(2) No public right of way specified in column (1) of Part 1 of Schedule 3 is to be wholly or partly stopped up under this article unless—
(a)the new public right of way to be constructed and substituted for it, which is specified in column (3) of that Part of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or
(b)a temporary alternative route for the passage of such traffic as could have used the public right of way to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the public right of way until the completion and opening of the new public right of way in accordance with sub-paragraph (a).
(3) No public right of way specified in column (1) of Part 1 or Part 2 of Schedule 3 is to be wholly or partly stopped up under this article unless Kent County Council has been notified six weeks before any planned diversion or closure of the public right of way.
(4) Where a public right of way has been stopped up under this article—
(a)all rights of way over or along the public right of way so stopped up are extinguished; and
(b)the undertaker may appropriate and use for the purposes of the authorised development so much of the site of the public right of way as is bounded on both sides by land owned by the undertaker.
(5) Any person who suffers loss by the suspension or extinguishment of any public right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.
(6) This article is subject to article 32 (apparatus and rights of statutory undertakers in stopped-up streets).
14. The undertaker may, for the purposes of the authorised development, and with the consent of the street authority, form and layout means of access, or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development provided that this does not result in any materially new or materially different environmental effects than those assessed in the environmental statement.
15.—(1) Subject to the provisions of this article, and the consent of the traffic authority in whose area the road concerned is situated, which consent must not be unreasonably withheld, the undertaker may, at any time, for the purposes of the construction of the authorised development prohibit vehicular access, prohibit waiting of vehicles and regulate vehicular speed by imposing speed restrictions on vehicles in the manner specified in Schedule 4 (traffic regulation) on those roads specified in column (1) and along the lengths and between the points specified in column (2) in the manner specified in column (3) of that Schedule.
(2) Subject to the provisions of this article, and the consent of the traffic authority in whose area the road concerned is situated, which consent must not be unreasonably withheld, the undertaker may, for the purposes of the authorised development—
(a)revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;
(b)permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;
(c)authorise the use as a parking place of any road;
(d)make provision as to the direction or priority of vehicular traffic on any road; and
(e)permit or prohibit vehicular access to any road,
either at all times or at times, on days or during such periods as may be specified by the undertaker.
(3) The powers conferred by paragraphs (1) and (2) may be exercised at any time prior to the expiry of 12 months from the part of the authorised development to which it relates being brought into operational use but subject to paragraph (7) any prohibition, restriction or other provision made under paragraphs (1) and (2) may have effect both before and after the expiry of that period.
(4) The undertaker must consult the chief officer of police and the traffic authority in whose area the road is situated before complying with the provisions of paragraph (5).
(5) The undertaker must not exercise the powers conferred by paragraphs (1) and (2) unless it has—
(a)given not less than—
(i)12 weeks’ notice in writing of its intention so to do in the case of a prohibition, restriction or other provision intended to have effect permanently; or
(ii)4 weeks’ notice in writing of its intention so to do in the case of a prohibition, restriction or other provision intended to have effect temporarily,
to the chief officer of police and to the traffic authority in whose area the road is situated; and
(b)advertised its intention in such manner as the traffic authority may specify in writing within 28 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(i), or within 7 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(ii).
(6) Any prohibition, restriction or other provision made by the undertaker under paragraphs (1) and (2)—
(a)has effect as if duly made by, as the case may be—
(i)the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or
(ii)the local authority in whose area the road is situated, as an order under section 32(34) (power of local authorities to provide parking places) of the 1984 Act,
and the instrument by which it is effected may specify savings and exemptions to which the prohibition, restriction or other provision is subject; and
(b)is deemed to be a traffic order for the purposes of Schedule 7 (road traffic contraventions subject to civil enforcement) to the Traffic Management Act 2004(35).
(7) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by the undertaker from time to time by subsequent exercise of the powers conferred by paragraphs (1) and (2) within a period of 24 months from the part of the authorised development to which it relates being brought into operational use.
(8) Before exercising the powers conferred by paragraphs (1) and (2) the undertaker must consult such persons as it considers necessary and appropriate and must take into consideration any representations made to it by any such person.
(9) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.
(10) The powers conferred on the undertaker by this article with respect to any road have effect subject to any agreement entered into by the undertaker with any person with an interest in (or who undertakes activities in relation to) premises served by the road.
(11) If the traffic authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraphs (1) and (2) the traffic authority is deemed to have granted consent.
16.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.
(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker under paragraph (1) is to be determined as if it were a dispute under section 106(36) (right to communicate with public sewers) of the Water Industry Act 1991.
(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.
(4) The undertaker must not make any opening into any public sewer or drain except—
(a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and
(b)where that person has been given the opportunity to supervise the making of the opening.
(5) The undertaker must not, in carrying out or maintaining works under this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.
(6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is free from gravel, soil or other solid substance, oil or matter in suspension or solution.
(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12 (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(37).
(8) In this article—
(a)“public sewer or drain” means a sewer or drain which belongs to Homes England, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a sewerage undertaker or an urban development corporation; and
(b)other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(38) have the same meaning as in that Act.
(9) If a person who receives an application for consent under paragraph (3) or approval under paragraph (4)(a) fails to notify the undertaker of a decision within 28 days of receiving an application that person will be deemed to have granted consent or given approval, as the case may be.
17.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building which may be affected by the authorised development as the undertaker considers necessary or expedient.
(2) Protective works may be carried out—
(a)at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or
(b)after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.
(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may (subject to paragraph (5)) enter and survey any building falling within paragraph (1) and any land within its curtilage.
(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—
(a)enter the building and any land within its curtilage; and
(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).
(5) Before exercising—
(a)a right under paragraph (1) to carry out protective works to a building;
(b)a right under paragraph (3) to enter a building and land within its curtilage;
(c)a right under paragraph (4)(a) to enter a building and land within its curtilage; or
(d)a right under paragraph (4)(b) to enter land,
the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.
(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 43 (arbitration).
(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.
(8) Where—
(a)protective works are carried out under this article to a building; and
(b)within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,
the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.
(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152(39) (compensation in case where no right to claim in nuisance) of the 2008 Act.
(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(11) In this article “protective works” in relation to a building means—
(a)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the carrying out, maintenance or use of the authorised development; and
(b)any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development.
18.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised development and—
(a)survey or investigate the land;
(b)without limitation to the scope of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;
(c)without limitation to the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land; and
(d)place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes.
(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land and on the Secretary of State.
(3) Any person entering land under this article on behalf of the undertaker—
(a)must, if so required, before or after entering the land, produce written evidence of their authority to do so; and
(b)may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.
(4) No trial holes are to be made under this article—
(a)in land located within a highway boundary without the consent of the highway authority; or
(b)in a private street without the consent of the street authority,
but such consent must not be unreasonably withheld.
(5) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(6) If either a highway authority or street authority which receives an application for consent fails to notify the undertaker of its decision within 28 days of receiving the application for consent—
(a)under paragraph (4)(a) in the case of a highway authority; or
(b)under paragraph (4)(b) in the case of a street authority,
that authority will be deemed to have granted consent.
(7) The right of access under paragraph (1) will be suspended temporarily and with immediate effect in respect of the Operation Stack land and the undertaker must remove all apparatus and equipment from that land within two hours of the Secretary of State notifying the undertaker in writing that—
(a)Operation Stack has been declared by Highways England or Kent Police; and
(b)the imminent use of the Operation Stack land for lorry parking purposes would be incompatible with the exercise of rights notified to the Secretary of State under paragraph (2).
(8) The temporary suspension under paragraph (7) will end as soon as the Secretary of State has notified the undertaker, as soon as is practicable, of the date on which the use of Operation Stack land mentioned in paragraph (7)(b) has ceased.
19.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or is incidental to it.
(2) This article is subject to article 22 (compulsory acquisition of rights), article 23 (subsoil or new rights only to be acquired in certain land) and article 29 (temporary use of land for carrying out the authorised development).
20. Part 2 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(40) is incorporated in this Order subject to the modification that for “the acquiring authority” substitute “the undertaker”.
21.—(1) After the start date—
(a)no notice to treat is to be served under Part 1 of the 1965 Act; and
(b)no declaration is to be executed under section 4(41) (execution of declaration) of the 1981 Act as applied by article 26 (application of the 1981 Act).
(2) The authority conferred by article 29 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.
(3) For the purposes of this article “the start date” means the later of:
(a)the end of the period of one calendar year beginning on the day after the period for legal challenge in section 118(42) (legal challenges relating to applications for orders granting development consent) of the 2008 Act expires; or
(b)the final determination of any legal challenge under section 118 of the 2008 Act.
22.—(1) Subject to paragraphs (2) to (4), the undertaker may acquire such rights over the Order land as may be required for any purpose for which that land may be acquired under article 19 (compulsory acquisition of land) by creating them as well as acquiring rights already in existence.
(2) In the case of the Order land specified in column (1) of Schedule 5 (land in which only new rights etc. may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such wayleaves, easements or new rights in the land as may be required for the purpose specified in relation to that land in column (2) of that Schedule.
(3) Subject to Schedule 2A(43) (counter-notice requiring purchase of land not in notice to treat) of the 1965 Act, as modified by paragraph 5(9) of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights), where the undertaker acquires a right over land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.
(4) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.
23.—(1) This article applies to the land specified in Schedule 7 (acquisition of subsoil and rights only).
(2) In the case of the land specified in Part 1 of Schedule 7, the undertaker’s powers of compulsory acquisition under article 19 (compulsory acquisition of land) and article 22 (compulsory acquisition of rights) are limited to the acquisition of, or the acquisition of rights over, so much of the subsoil of that land as is required for the authorised development, or to facilitate it, or is incidental to it.
(3) In the case of the land specified in Part 2 of Schedule 7, the undertaker’s powers of compulsory acquisition under article 19 and article 22 are limited at surface level and above to the acquisition of rights over so much of that land as is required for the authorised development, or to facilitate it, or is incidental to it.
24.—(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished—
(a)as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or
(b)on the date of entry on the land by the undertaker under section 11(1)(44) (powers of entry) of the 1965 Act,
whichever is the earlier.
(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right—
(a)as from the date of the acquisition of the right by the undertaker, whether compulsorily or by agreement; or
(b)on the date of entry on the land by the undertaker under section 11(1) (powers of entry) of the 1965 Act,
whichever is the earlier.
(3) Subject to the provisions of this article, all private rights over land owned by the undertaker that are within the Order limits are extinguished on commencement of any activity authorised by this Order which interferes with or breaches those rights.
(4) Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.
(5) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with the terms of section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.
(6) This article does not apply in relation to any right to which section 138(45) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 31 (statutory undertakers) applies.
(7) Paragraphs (1) to (4) have effect subject to—
(a)any notice given by the undertaker before—
(i)the completion of the acquisition of the land or the acquisition of the rights over the land;
(ii)the undertaker’s appropriation of it;
(iii)the undertaker’s entry onto it; or
(iv)the undertaker’s taking temporary possession of it,
that any or all of those paragraphs do not apply to any right specified in the notice; and
(b)any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.
(8) If any such agreement as is referred to in paragraph (7)(b)—
(a)is made with a person in or to whom the right is vested or belongs; and
(b)is expressed to have effect also for the benefit of those deriving title from or under that person,
it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.
(9) References in this article to private rights over land include any trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.
25.—(1) Part 1 of the 1965 Act, as applied to this Order by section 125(46) (application of compulsory acquisition provisions) of the 2008 Act is modified as follows.
(2) In section 4A(1)(47) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the one year period mentioned in article 21 (time limit for exercise of authority to acquire land compulsorily) of the Manston Airport Development Consent Order 2022”.
(3) In section 11A(48) (powers of entry: further notice of entry)—
(a)in subsection (1)(a), after “land” insert “under that provision”:
(b)In subsection (2), after “land” insert “under that provision”.
(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 21 (time limit for exercise of authority to acquire land compulsorily) of the Manston Airport Development Consent Order 2022”.
(5) In Schedule 2A (counter-notice requiring purchase of land not in notice to treat) after paragraph 29 insert—
30. In this Schedule, references to entering on and taking possession of land do not include doing so under article 17 (protective work to buildings), 28 (temporary use of land for carrying out the authorised development) or 29 (temporary use of land for maintaining the authorised development) of the Manston Airport Development Consent Order 2022.”
26.—(1) The 1981 Act applies as if this Order were a compulsory purchase order.
(2) The 1981 Act, as so applied, has effect with the modifications set out in this article.
(3) In section 1 (application of Act) for subsection (2) substitute—
“(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.”.
(4) In section 5(2)(49) (earliest date for execution of declaration), omit the words from “, and this subsection” to the end.
(5) Omit section 5A(50) (time limit for general vesting declaration).
(6) In section 5B(1)(51) (extension of time limit during challenge), for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the one year period mentioned in article 21 (time limit for exercise of authority to acquire land compulsorily) of the Manston Airport Development Consent Order 2022”.
(7) In section 6(52) (notices after execution of declaration) for subsection (1)(b) substitute—
“(b)on every other person who has given information to the acquiring authority with respect to any of that land further to the invitation published and served under section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008,”.
(8) In section 7(1)(a)(53) (constructive notice to treat), omit the words “(as modified by section 4 of the Acquisition of Land Act 1981)”.
(9) In Schedule A1(54) (counter-notice requiring purchase of land not in general vesting declaration), omit paragraph 1(2).
(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act as modified by article 25 (modification of Part 1 of the 1965 Act) to the compulsory acquisition of land under this Order.
27.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or of the airspace over the land referred to in paragraph (1) of article 19 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.
(2) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.
(3) Paragraph (2) does not prevent Schedule 2A to the 1965 Act or Schedule A1 to the 1981 Act from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.
28.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.
(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.
(3) Paragraph (2) does not apply in relation to—
(a)any subway or underground building; or
(b)any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.
(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, will be entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.
(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.
29.—(1) The undertaker may, in connection with the carrying out of the authorised development but subject to article 21(2) (time limit for exercise of authority to acquire land compulsory)—
(a)enter on and take temporary possession of—
(i)the land specified in column (1) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule relating to the part of the authorised development specified in column (3) of that Schedule; and
(ii)any other Order land in respect of which no notice of entry has been served under section 11(55) (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4(56) (execution of declaration) of the 1981 Act;
(b)remove any buildings and vegetation from that land;
(c)construct temporary works (including the provision of means of access) and buildings on that land; and
(d)construct any works on that land as are mentioned in Schedule 1 (authorised development).
(2) Not less than 14 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).
(3) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—
(a)in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 8, or
(b)in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.
(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—
(a)replace a building removed under this article;
(b)restore the land on which any permanent works have been constructed under paragraph (1)(d);
(c)remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development; or
(d)remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development.
(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article.
(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.
(7) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession of the land.
(8) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).
(9) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not to be precluded from acquiring any part of the subsoil (or rights in the subsoil of or airspace over) that land under article 27 (acquisition of subsoil or airspace only).
(10) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.
(11) Section 13(57) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.
30.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—
(a)enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development; and
(b)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.
(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—
(a)any house or garden belonging to a house; or
(b)any building (other than a house) if it is for the time being occupied.
(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken.
(4) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.
(5) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.
(6) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.
(8) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).
(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.
(10) Section 13 (refusal to give possession to the acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.
(11) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.
31.—(1) Subject to the provisions of Schedule 9 (protective provisions), article 22 (compulsory acquisition of rights) and paragraph (2), the undertaker may—
(a)acquire compulsorily or acquire new rights over any Order land belonging to statutory undertakers; and
(b)extinguish the rights of, or remove or reposition the apparatus belonging to, statutory undertakers over the Order land.
(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—
(a)Part 3 (street works in England and Wales) of the 1991 Act; and
(b)article 32 (apparatus and rights of statutory undertakers in stopped-up streets).
32.—(1) Where a street is stopped up under article 13 (permanent stopping up of public rights of way), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.
(2) Where a street is stopped up under article 13 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—
(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or
(b)provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).
(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—
(a)the execution of the relocation works required in consequence of the stopping up of the street; and
(b)the doing of any other work or thing rendered necessary by the execution of the relocation works.
(4) If in the course of the execution of relocation works under paragraph (2)—
(a)apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.
(5) For the purposes of paragraph (4)—
(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—
(a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and
(b)the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.
(8) In this article—
“apparatus” has the same meaning as in Part 3 of the 1991 Act;
“relocation works” means work executed, or apparatus provided, under paragraph (2); and
“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003(58).
33.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 31 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.
(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 31, any person who is—
(a)the owner or occupier of premises the drains of which communicated with that sewer; or
(b)the owner of a private sewer which communicated with that sewer,
is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.
(3) This article does not have effect in relation to apparatus to which article 32 (apparatus and rights of statutory undertakers in stopped-up streets) or Part 3 of the 1991 Act applies.
(4) In this article—
“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(59); and
“public utility undertaker” means a gas, water, electricity or sewerage undertaker.
34.—(1) The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—
(a)from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or
(b)from constituting a danger to persons using the authorised development.
(2) In carrying out any activity authorised by paragraph (1), the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.
(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.
(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits that is required to be removed.
(5) In this article “hedgerow” has the same meaning as in the Hedgerow Regulations 1997(60) and includes important hedgerows for the purposes of those Regulations.
35. The Manston Airport section 106 agreement(61) is hereby abrogated.
36.—(1) This article applies to—
(a)any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and
(b)any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,
so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.
(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.
(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—
(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;
(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or
(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.
37.—(1) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.
(2) Archaeological human remains will be identified, investigated and removed in accordance with the archaeological written scheme of investigation approved pursuant to requirement 16 of Schedule 2 (requirements) subject to the provisions of an exhumation licence under the Burial Act 1857(62).
(3) Before human remains that are non-archaeological are removed from the specified land the undertaker is to give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—
(a)publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised development; and
(b)displaying a notice in a conspicuous place on or near to the specified land.
(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker is to send a copy of the notice to the relevant planning authority.
(5) At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.
(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—
(a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or
(b)removed to, and cremated in, any crematorium,
and that person is to, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).
(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question is to be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who is to remove the remains and as to the payment of the costs of the application.
(8) The undertaker is to pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under powers conferred by this article.
(9) If—
(a)within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land;
(b)such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days;
(c)within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or
(d)it is determined that the remains to which any such notice relates cannot be identified,
subject to paragraph (10), the undertaker is to remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves are to be re-interred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.
(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker is to comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.
(11) On the re-interment or cremation of any remains under powers conferred by this article—
(a)a certificate of re-interment or cremation is to be sent by the undertaker to the Registrar General giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and
(b)a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) is to be sent by the undertaker to the relevant planning authority.
(12) The removal of the remains of any deceased person under powers conferred by this article is to be carried out in accordance with any directions which may be given by the Secretary of State.
(13) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.
(14) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857(63) does not apply to a removal carried out in accordance with this article.
(15) Section 3 (burial not to take place after Order in Council for discontinuance, etc) of the Burial Act 1853(64) does not apply to a removal carried out in accordance with this article.
(16) In this article—
(a)“the specified land” means any land within the Order limits; and
(b)“Archaeological human remains” means human remains that date before 1900.
38.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990(65) in relation to a nuisance falling within paragraph (g) of section 79(1) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act no order is to be made, and no fine may be imposed, under section 82(2)(66) of that Act if—
(a)the defendant shows that the nuisance—
(i)relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) of the Control of Pollution Act 1974(67); or
(ii)is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
(b)the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.
(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.
39. Schedule 9 (protective provisions) has effect.
40.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any licensee to take, use, enter upon or in any manner interfere with any land or rights of any description—
(a)belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;
(b)belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or
(c)belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department.
(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown Land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.
(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions, and is deemed to have been given in writing where it is sent electronically.
41.—(1) As soon as practicable after the making of this Order the undertaker must submit copies of each of the plans and documents set out in Schedule 10 (documents to be certified) to the Secretary of State for certification that they are true copies of those plans and documents.
(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).
(3) A plan or document so certified will be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
42.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a)by post;
(b)by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c)with the consent of the recipient and subject to paragraphs (5) to (8) by electronic transmission.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(68) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—
(a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and
(b)in any other case, the last known address of that person at the time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—
(a)addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and
(b)either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement will be taken to be fulfilled only where—
(a)the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;
(b)the notice or document is capable of being accessed by the recipient;
(c)the notice or document is legible in all material respects; and
(d)the notice or document is in a form sufficiently permanent to be used for subsequent reference.
(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within seven days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.
(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).
(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—
(a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and
(b)such revocation will be final and will take effect on a date specified by the person in the notice but that date must not be less than seven days after the date on which the notice is given.
(9) This article does not exclude the employment of any method of service not expressly provided for by it.
(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.
43. Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the Lands Chamber of the Upper Tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.
Signed by authority of the Secretary of State for Transport
Natasha Kopala
Head of the Transport and Works Act Orders Unit
Department for Transport
18th August 2022