Article 49
1.—(1) Subject to the following provisions of this paragraph, sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) shall apply in relation to any land which has been acquired under this Order, or which is held by the Executive and is appropriated or used (or about to be used) by it for the purposes of this Order or for purposes connected therewith; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under section 271 and 272, and sections 279(2) to (4), 280 and 282 which provide for the payment of compensation) shall have effect accordingly.
(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1)—
(a)references to the appropriate Minister are references to the Secretary of State;
(b)references to the purpose of carrying out any development with a view to which land was acquired or appropriated are references to the purpose of carrying out the authorised works; and
(c)references to land acquired or appropriated as mentioned in section 271(1) of the 1990 Act are references to land acquired, appropriated or used as mentioned in sub-paragraph (1).
(3) Where any apparatus of public utility undertakers or of an operator of an electronic communications code network is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Executive compensation in respect of expenditure reasonably incurred by him, 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.
(4) Sub-paragraph (3) shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, 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,
shall be entitled to recover from the Executive compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.
(5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which Part III of the 1991 Act applies (including that Part as applied by article 3).
(6) In this paragraph—
“electronic communications code” means the code set out in Schedule 2 to the Telecommunications Act 1984(1);
“electronic communications code network” means an electronic communications network within the meaning of the Communications Act 2003(2) to which the electronic communications code applies; and
“public utility undertakers” has the same meaning as the Highways Act 1980(3).
2.—(1) Where a street is stopped up under article 13 of this Order (including that article as applied by article 7(6) of this Order) any statutory utility whose apparatus is under, in, upon, over, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provision of this paragraph, as if this Order had not been made.
(2) Where a street is stopped up under article 13 of this Order (including that article as applied by article 7(6) of this Order) any statutory utility whose apparatus is under, in, upon, over, along or across the street may where reasonably necessary for the efficient operation of the undertaking of the statutory utility and, if reasonably requested so to do by the Executive, shall—
(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 aforesaid.
(3) Subject to the following provisions of this paragraph, the Executive shall pay to any statutory utility an amount equal to the cost reasonably incurred by the statutory utility in or in connection with—
(a)the execution of 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 relocation works.
(4) If in the course of the execution of relocation works under sub-paragraph (2)—
(a)apparatus of better type, of greater capacity or of greater dimension is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, 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 Executive, 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 sub-paragraph (3) shall be reduced by the amount of that excess.
(5) For the purposes of sub-paragraph (4)—
(a)an extension of apparatus to a length greater than the length of existing apparatus shall not 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 shall be treated as if it also had been agreed or had been so determined.
(6) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (3) (and having regard, where relevant, to sub-paragraph (4)) shall, 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 statutory 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) Sub-paragraphs (3) to (6) shall not apply where the authorised works constitute major transport works or major highway works for the purposes of Part III of the 1991 Act (including that Part as applied by article 3), but instead—
(a)the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of costs of necessary measures) and any regulations for the time being having effect under that section; and
(b)the allowable costs shall be borne by the Executive and the statutory utility in such proportions as may be prescribed by any such regulations.
(8) In this paragraph—
“apparatus” has the same meaning as in Part III of the 1991 Act;
“relocation works” means works executed, or apparatus provided, under sub-paragraph (2); and
“statutory utility” means a statutory undertaker for the purposes of the Highways Act 1980 or an operator of an electronic communications code network as defined in paragraph 1(6).
3.—(1) Paragraph 21 of the electronic communications code shall not apply for the purposes of the authorised works to the extent that such works are regulated by Part XI of the 1990 Act, sections 84 and 85 of the 1991 Act (or regulations made under section 85 of that Act), paragraph 2 or sub-paragraph (3).
(2) Paragraph 23 of the electronic communications code shall apply for the purposes of the authorised works, save—
(a)in so far as such works are regulated by the 1991 Act or any regulation made under that Act; or
(b)where the Executive exercises a right under subsection (4)(b) of section 272 of the 1990 Act or under an order made under that section to remove apparatus.
(3) The temporary stopping up, alteration or diversion of any highway under article 14 of this Order shall not affect any right of an operator of an electronic communications code network under paragraph 9 of the electronic communications code in respect of any apparatus which at the time of the stopping up or diversion is in the highway.
(4) In this paragraph—
“apparatus” has the same meaning as in Part III of the 1991 Act;
“electronic communications code” and “electronic communications code network” have the same meaning as in paragraph 1(6).
1984 c. 12; Schedule 2 was amended by the New Roads and Streetworks Act 1991, Schedule 8 paragraphs 113 and 115, and the Communications Act 2003, Schedule 3.