Funding
39.—(1) Except where the provisions of paragraph (8) apply, SEL must not exercise the powers conferred by the provisions referred to in paragraph (3) in relation to any land unless a guarantee or alternative form of security in respect of the liabilities of SEL to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land is in place.
(2) Except where the provisions of paragraph (9) apply, DEL must not exercise the powers conferred by the provisions referred to in paragraph (3) in relation to any land unless a guarantee or alternative form of security in respect of the liabilities of DEL to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land is in place.
(3) The provisions are—
(a)article 18 (compulsory acquisition of land);
(b)article 20 (compulsory acquisition of rights);
(c)article 21 (private rights over land);
(d)article 23 (acquisition of subsoil or airspace only);
(e)article 25 (rights under or over streets);
(f)article 26 (temporary use of land for carrying out the authorised project);
(g)article 27 (temporary use of land for maintaining the authorised project); and
(h)article 28 (statutory undertakers).
(4) The form of guarantee or security referred to in paragraphs (1) and (2), and the amount guaranteed or secured, must be approved by the Secretary of State, but such approval must not be unreasonably withheld.
(5) The undertaker must provide the Secretary of State with such information as the Secretary of State may reasonably require relating to the interests in the land affected by the exercise of the powers referred to in paragraph (3) for the Secretary of State to be able to determine the adequacy of the proposed guarantee or security including—
(a)the interests affected; and
(b)the undertaker’s assessment, and the basis of the assessment, of the level of compensation.
(6) A guarantee or other security given in accordance with this article that guarantees or secures the undertaker’s payment of compensation in relation to the exercise of the powers referred to in paragraph (3) is to be treated as enforceable against the guarantor or provider of security by any person to whom such compensation is properly payable and must be in such a form as to be capable of enforcement by such a person.
(7) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.
(8) Nothing in this article requires a guarantee or alternative form of security to be put in place by SEL where—
(a)SEL provides the Secretary of State with financial information sufficient to demonstrate that it has appropriate funding in place without a guarantee or alternative form of security to meet any liability to pay compensation under this Order in respect of the exercise of the relevant powers in paragraph (1); and
(b)The Secretary of State provides written confirmation that no such guarantee is required, such written confirmation not to be unreasonably withheld.
(9) Nothing in this article requires a guarantee or alternative form of security to be put in place by DEL where—
(a)DEL provides the Secretary of State with financial information sufficient to demonstrate that it has appropriate funding in place without a guarantee or alternative form of security to meet any liability to pay compensation under this Order in respect of the exercise of the relevant powers in paragraph (2); and
(b)The Secretary of State provides written confirmation that no such guarantee is required, such written confirmation not to be unreasonably withheld.