PART 6MISCELLANEOUS AND GENERAL
Benefit of the Order
34. Subject to article 35 (consent to transfer the benefit of the Order), the provisions of this Order have effect solely for the benefit of the undertaker save for Work No. 3 in relation to which the provisions of this Order have effect for the benefit of the undertaker and National Grid Electricity Transmission plc.
Consent to transfer the benefit of the Order
35.—(1) Subject to paragraph (3), 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; and
(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 a transfer or grant has been made references in this Order to the undertaker, except in paragraph (8), are to include references to the transferee or lessee.
(3) The consent of the Secretary of State is required for the exercise of the powers of paragraph (1) except where—
(a)the transferee or lessee is the holder of a licence under section 6 (licences authorising supply etc.) of the 1989 Act; or
(b)the time limits for claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—
(i)no such claims have been made;
(ii)any such claim has been made and has been compromised or withdrawn;
(iii)compensation has been paid in full and final settlement of any such claim;
(iv)payment of compensation into court has taken place in lieu of settlement of any such claim; or
(v)it has been determined by a tribunal or court of competent jurisdiction in respect of any such claim that no compensation is payable.
(4) Where the consent of the Secretary of State is not required, the undertaker must notify the Secretary of State in writing and the relevant local planning authorities before transferring or granting a benefit referred to in paragraph (1).
(5) The notification referred to in paragraph (4) must state—
(a)the name and contact details of the person to whom the benefit of the powers will be transferred or granted;
(b)subject to paragraph (6), the date on which the transfer will take effect;
(c)the powers to be transferred or granted;
(d)pursuant to paragraph (8), the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted; and
(e)where relevant, a plan showing the works or areas to which the transfer or grant relates.
(6) The date specified under paragraph (5)(b) must not be earlier than the expiry of fourteen (14) days from the date of the receipt of the notification.
(7) The notification given must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notification.
(8) Where the undertaker has transferred any benefit, or for the duration of any period during which the undertaker has granted any benefit—
(a)the benefit transferred or granted (“the transferred benefit”) must include any rights that are conferred, and any obligations that are imposed, by virtue of the provisions to which the benefit relates;
(b)the transferred benefit will reside exclusively with the transferee or, as the case may be, the lessee and the transferred benefit will not be enforceable against the undertaker; and
(c)the exercise by a person of any benefits or rights conferred in accordance with any transfer or grant 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.
Application of landlord and tenant law
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 purposes 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) Accordingly, 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.
Operational land for purposes of the 1990 Act
37. Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as not being operational land) of the 1990 Act.
Felling or lopping of trees and removal of hedgerows
38.—(1) Subject to paragraph (2), 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 from—
(a)obstructing or interfering with the purposes of the authorised development or any apparatus used in connection with the authorised development;
(b)constituting a danger to persons using the authorised development; or
(c)obstructing or interfering with the passage of vehicles to the extent necessary for the purposes of construction or decommissioning of 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 under Part 1 of the 1961 Act.
(4) The undertaker may, for the purposes of the authorised development, or in connection with the authorised development, subject to paragraph (2) and requirement 7, undertake works to or remove any hedgerows within the Order limits that may be required.
(5) Without prejudice to the generality of paragraph (4), the undertaker may, for the purposes of the authorised development or in connection with the authorised development and subject to paragraph (1)(a), remove the hedgerows specified in column 2 of the table in Schedule 12 (hedgerows to be removed) and shown on the hedgerows plans.
(6) The undertaker may not pursuant to paragraphs (1) and (4) fell or lop a tree or remove hedgerows within the extent of the publicly maintainable highway without the prior consent of the highway authority.
(7) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997(1).
Certification of plans and documents, etc.
39.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of all documents and plans listed in the table at Schedule 13 (documents and plans to be certified) for certification that they are true copies of the documents referred to in this Order.
(2) A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.
Arbitration
40.—(1) Any difference under any provision of this Order, unless otherwise provided for, is to be referred to and settled in arbitration in accordance with the rules set out in Schedule 14 (arbitration rules) of this Order, by a single arbitrator to be agreed upon by the parties, within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.
(2) Any matter for which the consent or approval of the Secretary of State is required under any provision of this Order is not subject to arbitration.
Protective Provisions
41. Schedule 15 (protective provisions) has effect.
Service of notices
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 (6) 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(2) 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 that time of service.
(4) Where for the purpose of this Order a notice or other document is required or authorised to be served on a person as having an 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 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 the 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 is to 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 any 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 an electronic transmission 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 is final and takes 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.
Procedure in relation to certain approvals etc.
43.—(1) Where an application is made to or request is made of, a consenting authority for any consent, agreement or approval required or contemplated by any of the provisions of the Order (not including the requirements), such consent, agreement or approval to be validly given, must be given in writing.
(2) Where paragraph (1) applies to any consent, agreement or approval, such consent, agreement or approval must not be unreasonably withheld or delayed.
(3) Schedule 16 (procedure for discharge of requirements) has effect in relation to all consents, agreements or approvals required, granted, refused or withheld in relation to the requirements.
(4) Save for applications made pursuant to Schedule 16 (procedure for discharge of requirements) and where stated to the contrary if, within eight weeks (or such longer period as may be agreed between the undertaker and the relevant consenting authority in writing) after the application or request has been submitted to a consenting authority it has not notified the undertaker of its disapproval and the grounds of disapproval, it is deemed to have approved the application or request.
(5) Where any application is made as described in paragraph (1), the undertaker must include a statement in such application that refers to the timeframe for consideration of the application and the consequences of failure to meet that timeframe as prescribed by paragraph (4).
(6) Schedule 16 (procedure for discharge of requirements) does not apply in respect of any consents, agreements or approvals contemplated by the provisions of Schedule 15 (protective provisions) or any dispute under article 17(6) (protective work to buildings) to which sub-paragraph (4) applies.
(7) In this article “consenting authority” means the relevant planning authority, highway authority, traffic authority, street authority, the owner of a watercourse, sewer or drain or the beneficiary of any of the protective provisions contained in Schedule 15 (protective provisions).
Guarantees in respect of payment of compensation
44.—(1) The undertaker must not exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any land unless it has first put in place either—
(a)a guarantee, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2); or
(b)an alternative form of security, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2) .
(2) The provisions are—
(a)article 19 (compulsory acquisition of land);
(b)article 22 (compulsory acquisition of rights);
(c)article 23 (private rights);
(d)article 25 (acquisition of subsoil only);
(e)article 28 (rights under or over streets);
(f)article 29 (temporary use of land for constructing the authorised development);
(g)article 30 (temporary use of land for maintaining the authorised development); and
(h)article 31 (statutory undertakers).
(3) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the guarantor or person providing the alternative form of security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.
(4) 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.