Planning Act 2008

138 Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.

(1) This section applies if an order granting development consent authorises the acquisition of land (compulsorily or by agreement) and—

(a) there subsists over the land a relevant right, or

(b) there is on, under or over the land relevant apparatus.

(2) “Relevant right” means a right of way, or a right of laying down, erecting, continuing or maintaining apparatus on, under or over the land, which—

(a) is vested in or belongs to statutory undertakers for the purpose of the carrying on of their undertaking, or

(b) is conferred by or in accordance with the electronic communications code on the operator of an electronic communications code network.

(3) “Relevant apparatus” means—

(a) apparatus vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking, or

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

(4) The order may include provision for the extinguishment of the relevant right, or the removal of the relevant apparatus, only if—

(a) the decision-maker is satisfied that the extinguishment or removal is necessary for the purpose of carrying out the development to which the order relates, and

(b) in a case within subsection (5), the Secretary of State has consented to the inclusion of the provision.

(5) A case is within this subsection if a representation has been made about the application for the order granting development consent before the completion of the examination of the application—

(a) in a case falling within subsection (2)(a) or (3)(a), by the statutory undertakers;

(b) in a case falling within subsection (2)(b) or (3)(b), by the operator of the electronic communications code network,

and the representation has not been withdrawn.

(6) The question of which Secretary of State should give consent under subsection (4)(b) is to be determined by the Treasury, if it arises.