The Willington C Gas Pipeline Order 2014

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Willington C Gas Pipeline Order 2014 and comes into force on 7th January 2015.

Interpretation

2.—(1) In this Order—

“1961 Act” means the Land Compensation Act 1961(1);

“1965 Act” means the Compulsory Purchase Act 1965(2);

“1980 Act” means the Highways Act 1980(3);

“1990 Act” means the Town and Country Planning Act 1990(4);

“1991 Act” means the New Roads and Street Works Act 1991(5);

“1997 Regulations” means the Hedgerows Regulations 1997(6);

“2008 Act” means the Planning Act 2008;

“address” includes any number or address used for the purposes of electronic transmission;

“authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development) and any other development authorised by this Order that is development within the meaning of section 32 of the 2008 Act;

“book of reference” means the book of reference certified by the Secretary of State 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(7);

“commence” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act(8)) forming part of the authorised development other than operations consisting of—

(a)

ecological or archaeological investigations;

(b)

investigations for the purpose of assessing ground conditions;

(c)

remedial work in respect of any contamination or other adverse ground conditions;

(d)

the diversion and laying of services;

(e)

the erection of any temporary means of enclosure;

(f)

the temporary display of site notices or advertisements; and

(g)

for the purpose of the operations referred to in sub-paragraphs (a) to (f), the cutting of vegetation, other than the cutting of vegetation authorised by article 32 (felling or lopping of trees, etc.);

and “commencement” must be construed accordingly;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act(9);

“electronic transmission” means a communication transmitted—

(a)

by means of an electronic communications network; or

(b)

by other means but while in electronic form;

“environmental statement” means the environmental statement certified by the Secretary of State as the environmental statement for the purposes of this Order;

“highway” has the same meaning as in the 1980 Act(10);

“land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order;

“limits of deviation” means the areas shown on the works plans (within a broken red line) and referred to in article 7 (limits of deviation);

“local highway authority” means Staffordshire County Council or Derbyshire County Council as appropriate for the area in which the land to which the provisions of this Order apply is situated;

“maintain” (except as provided in Part 5 of Schedule 9) includes inspect, maintain, adjust, alter, repair, test, cleanse, re-lay, divert (in accordance with articles 5 (maintenance and diversion of authorised development) and 7 (limits of deviation)), make safe, decommission, reconstruct, demolish, abandon, replace, remove and improve the authorised development or any of its parts (but not so as to vary from the description of the authorised development in Schedule 1); and any derivative of “maintain” must be construed accordingly;

“National Grid Electricity” means National Grid Electricity Transmission plc (company registration number 02366977);

“National Grid Gas” means National Grid Gas plc (company registration number 02006000);

“NG works” means those works to be constructed, owned and operated by National Grid Gas and described in Part 1 of Schedule 1 as (a) Works No.2 (shown on sheet 1 of the works plans) and (b) those works within Works No.3 which comprise National Grid Gas’s part of the above-ground installation, and are shown within the turquoise bounded area on the Yoxall AGI plan;

“Order land” means the land shown on the land plans that is within the limits of land to be acquired or used and described in the book of reference;

“Order limits” means the limits (including the limits of deviation, the works limits and any additional land to be used) shown by a blue line on the works plans within which the authorised development may be carried out;

“owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(11);

“relevant planning authority” means South Derbyshire District Council or East Staffordshire Borough Council as appropriate for the area in which the land to which the provisions of this Order apply is situated;

“Requirement” means a Requirement set out in Part 2 of Schedule 1; and a reference to a numbered Requirement is a reference to the Requirement set out in the paragraph of the same number in that Part;

“statutory undertaker” means any person falling within sections 127(8) and 138(4A) of the 2008 Act(12) or who has the benefit of the protective provisions in Schedule 9;

“street” means a street within the meaning of section 48 of the 1991 Act(13), 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(14);

“tribunal” means the Lands Chamber of the Upper Tribunal;

“undertaker” means RWE Generation UK plc(15) (company registration number 03892782) or a successor body, or any other person, to whom RWE Generation UK plc transfers or grants any or all of the benefit of this Order in accordance with article 9 (consent to transfer benefit of Order);

“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;

“works limits” means the limits of land shown by a broken green line on the works plans within which the authorised development can be carried out and maintained;

“works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order;

“Yoxall AGI plan” means the plan certified as the Yoxall AGI plan by the Secretary of State for the purposes of this Order;

“Yoxall AGI site” means the land hatched blue on sheet 1 of the works plans and shown on the Yoxall AGI plan.

(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 air-space above its surface.

(3) All distances, directions and lengths referred to in this Order are approximate.

(4) All areas described in the book of reference are approximate.

(5) References in this Order to a numbered Work are references to a work numbered in Part 1 of Schedule 1.

Application and modification of legislative provisions

3.—(1) Regulation 6(1) of the 1997 Regulations applies to the development consent granted by this Order except that it is modified so as to read for the purposes of this Order only as if there were inserted after sub-paragraph (e) the following—

“(ea) for the carrying out of development for which development consent has been granted under the Planning Act 2008.”

(2) Section 78(1) of the 1990 Act(16) applies to the development consent granted by this Order and to the Requirements except that it is modified so as to read for the purposes of this Order only as if there were inserted after paragraph (b) the following—

“(ba) refuse an application for any consent, agreement or approval of that authority required by a requirement imposed on a grant of development consent or contained in a development consent order, or grant it subject to conditions;

(bb) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on any consent, agreement or approval of that authority given pursuant to a requirement imposed on a grant of development consent or contained in a development consent order;

(bc) fail to give notice to the applicant of their decision on an application of the kind referred to in (ba) or (bb), within the time prescribed by a development order or such extended time as may at any time be agreed in writing between the applicant and the planning authority; or”.

(3) Sections 78 and 79 of the 1990 Act(17) have effect in relation to any appeal under section 78(1) as so applied.

(4) Regulation 16 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012(18) applies to any application to discharge a Requirement as if the Requirement were a condition attached to the grant of planning permission.

(5) Any orders, rules or regulations that apply to applications pursuant to conditions or the subject matter of section 78 of the 1990 Act apply to any application or appeal made under that section as modified by this article, insofar as those provisions are not inconsistent with the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and any orders, rules or other regulations made under the 2008 Act.

(6) Appeals by the undertaker under section 78 of the 1990 Act as modified by this article must be dealt with by the Secretary of State and appropriate Minister as if the appeal were made by a statutory undertaker against a determination of an application to which section 266(1) of the 1990 Act applies, provided that the undertaker making the appeal holds a licence under section 6 of the Electricity Act 1989(19).

PART 2 PRINCIPAL POWERS

Development consent granted by Order

4.  Subject to the provisions of this Order and to the Requirements, the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

Maintenance and diversion of the authorised development

5.—(1) The undertaker may at any time maintain the authorised development within the works limits and, in so far as a diversion would not be contrary to section 21 of the 2008 Act, divert the authorised development within the limits of deviation.

(2) Any diversion of the authorised development is subject to the provisions of this Order and the Requirements.

(3) No maintenance works whose likely significant effects on the environment are not described in the environmental statement may take place, except for maintenance works associated with an emergency.

Operation and use of authorised development

6.  The undertaker may at any time operate and use the authorised development, except to the extent that this Order or an agreement made under this Order provides otherwise.

Limits of deviation

7.  In carrying out, maintaining or diverting the authorised development, the undertaker may—

(a) deviate Works No. 1, 2, 3(f), 3(k), 4, 5 and 6 laterally from the lines or situations of the authorised development shown on the works plans within the extent of the limits of deviation shown on those plans; and

(b) deviate Works No. 1 and 2 vertically—

(i) upwards to a limit of not less than 1.1 metres below the surface of the ground; and

(ii) to any extent downwards as may be found to be necessary or practical to a maximum depth of 70 metres below the surface of the ground,

except that sub-paragraph (i) does not apply to those parts of Works No. 1 and 2 that are built within the Yoxall AGI site, where such works may deviate upwards to a limit of 2.8 metres above ground level;

(c) deviate or place Works No. 3, 4, 5 and 6 vertically upwards or above ground level to the height limits set for each of these works in Part 1 of Schedule 1.

Benefit of Order

8.  Subject to article 9 (consent to transfer benefit of Order), this Order is for the benefit of the undertaker.

Consent to transfer benefit of Order

9.—(1) The undertaker may, with the consent of the Secretary of State,—

(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 in writing between the undertaker and the transferee; or

(b) grant to another person (the “lessee”) for a period agreed in writing 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,

except where paragraph (3) applies, in which case no such consent is required.

(2) 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 RWE Generation UK plc.

(3) This paragraph applies to a transfer or grant to National Grid Gas of any part of the benefit of the provisions of this Order and any related statutory rights which relate to, or may be necessary or expedient for, the construction, operation, maintenance and diversion of the NG works or any works carried out pursuant to Part 5 of Schedule 9.

PART 3 STREETS

Street works

10.—(1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 2 (streets subject to street works) as are within the works limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street;

(c) place apparatus in or under the street;

(d) maintain apparatus in or under the street or change its position; and

(e) execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d).

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) Sections 54 to 106 of the 1991 Act(20) apply to any street works carried out under paragraph (1).

(4) In this article, “apparatus” has the same meaning as in Part 3 of the 1991 Act(21).

Public rights of way

11.—(1) The undertaker may create an alternative public right of way to the section of footpath named the Yoxall 59 footpath (shown by a broken orange line between the points A and C on the Yoxall AGI plan) between the points A, B and C (shown by a broken purple line on the Yoxall AGI plan).

(2) With effect from the date of certification by the local highway authority that the agreed alternative right of way has been created in accordance with the implementation plan and specification approved under Requirement 8, the original right of way (shown by the broken orange line between the points A and C on the Yoxall AGI plan) is extinguished.

Access to works

12.  The undertaker may, for the purposes of the authorised development,—

(a) form and lay out means of accesses or improve existing means of access in the indicative locations specified in columns (1) and (2) of Schedule 3 (access to works) as shown coloured pink on sheets 1 to 7, 9 and 10 of the works plans; and

(b) form and lay out such other means of access or improve existing means of access at such locations within the works limits as the undertaker reasonably requires for the purposes of the authorised development.

Agreements with street authorities

13.—(1) A street authority and the undertaker may enter into agreements with respect to the carrying out in or under the street of any of the works referred to in article 10(1) (street works).

(2) Such an agreement may, without limiting paragraph (1),—

(a) make provision for the street authority to carry out any function under this Order that relates to the street in question;

(b) include an agreement between the undertaker and street authority specifying a reasonable time for the completion of the works; and

(c) contain such terms as to payment and otherwise as the parties consider appropriate.

PART 4 SUPPLEMENTAL POWERS

Discharge of water

14.—(1) 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 works limits, make openings into, and connections with, that 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 pursuant to paragraph (1) must be determined as if it were a question arising under section 106 of the Water Industry Act 1991(22) (right to communicate with public sewers).

(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 observe the making of the opening.

(5) The undertaker must not, in carrying out or maintaining works pursuant to 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 as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) This article does not authorise a groundwater activity or a water discharge activity within the meaning of the Environmental Permitting (England and Wales) Regulations 2010(23).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964(24) (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker(25) or an urban development corporation; and

(b) other expressions, excluding watercourse, used both in this article and in the Environmental Permitting (England and Wales) Regulations 2010 have the same meaning as in those Regulations.

Authority to survey and investigate land

15.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits and—

(a) survey or investigate the land;

(b) without limiting 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 limiting 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.

This is limited to the right to carry out the surveys and investigations specified in column (2) of Schedule 4 (land in which surveys and investigations may be carried out) over the land specified in column (1) of that Schedule.

(2) No land may be entered or equipment placed or left on or removed from the land under sub-paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of the undertaker—

(a) must, if so required on entering the land, produce written evidence of the person’s authority to do so; and

(b) may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes may be made under this article—

(a) in land located within the highway boundary without the consent of the local 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(26).

PART 5 POWERS OF ACQUISITION

Compulsory acquisition of existing rights in land

16.—(1) The undertaker may acquire compulsorily the existing rights in so much of the Order land within the works limits (including for the avoidance of doubt the subsoil) as are required for the authorised development or to facilitate, or are incidental to, it and as are described in the book of reference and shown on the land plans.

(2) As from the date on which a compulsory acquisition notice is served or the date on which the land acquired under paragraph (1) or any part of it is vested in the undertaker, whichever is the later, that land or that part of it which is vested (as the case may be) is discharged from all rights, easements, liberties, privileges, advantages, restrictions, covenants, trusts and incidents to which it was previously subject.

(3) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Time limit for exercise of authority to acquire land compulsorily

17.—(1) After the end of the period of 5 years beginning on the day on which this Order is made—

(a) no notice to treat may be served under Part 1 of the 1965 Act(27); and

(b) no notice or declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981(28) as applied by article 21 (application of Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The authority conferred by article 24 (temporary use of land for carrying out 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.

Compulsory acquisition of new rights, etc.

18.—(1) The undertaker may create and acquire compulsorily new rights over those parts of the Order land specified in column (1) of Schedule 5 (land in which only new rights, etc. may be acquired) as may be required for the purpose specified in relation to that land in column (2) of that Schedule or as may be required for facilitating the construction of, or are incidental to, the authorised development.

(2) The undertaker may also impose the restrictive obligations specified in column (3) of Schedule 6 (land over which restrictive obligations and rights of support are required) over the Order land specified in column (2) of that Schedule.

(3) As from the date on which a compulsory acquisition notice is served or the date on which any new right is vested in the undertaker, whichever is the later, the land over which any new rights are acquired is discharged from all rights, easements, liberties, privileges, advantages, restrictions, covenants, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right.

(4) Any person who suffers loss as a result of the extinguishment or suspension of any private right under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights, etc.) 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 or the imposition of a restrictive obligation.

Power to override easements and other rights

19.—(1) The carrying out or use of development authorised by this Order and the doing of anything else authorised by this Order is authorised for the purpose specified in section 158(2) of the 2008 Act (nuisance: statutory authority), notwithstanding that it involves—

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) The interests and rights to which this article applies include any easements, liberties, privileges and advantages annexed to land and adversely affecting other land, including any natural right to support, and include restrictions as to the user of the land arising by virtue of a contract having that effect or any other covenants, trusts or incidents.

(3) Compensation in respect of any interference or breach pursuant to this article—

(a) is payable under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance)(29); and

(b) will be assessed subject to section 10(2) of the 1965 Act(30), which applies by virtue of section 152(5) of the 2008 Act; and

any rule or principle applied to the construction of section 10 of the 1965 Act will be applied to the construction of this paragraph (with any necessary modifications).

(4) Nothing in this article is to be construed as authorising any act or omission on the part of any person that is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1).

Private rights of way

20.—(1) Subject to the provisions of this article, all private rights of way 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) of the 1965 Act (power of entry),

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being within the limits of land that may be acquired shown on the land plans, is required for the purposes of this Order are extinguished on the appropriation of the land by the undertaker for any of those purposes.

(3) Subject to the provisions of this article, all private rights of way 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.

(4) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) This article does not apply in relation to any right of way to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers, etc.)(31) or article 27 (statutory undertakers) applies.

(6) Paragraphs (1) to (3) have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of 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,

provided that any or all of those paragraphs do not apply to any right of way specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right of way in question is vested or belongs.

(7) If any such agreement as is referred to in paragraph (6)(b)—

(a) is made with a person in or to whom the right of way 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.

Application of Compulsory Purchase (Vesting Declarations) Act 1981

21.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(32) applies as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as so applied, has effect with the following modifications.

(3) In section 3 (preliminary notices), for subsection (1) there is substituted—

“(1) Before making a declaration under section 4 with respect to any land or rights over land subject to a compulsory purchase order, the acquiring authority must include the particulars specified in subsection (3) in a notice which is—

(a) given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b) published in a local newspaper circulating in the area in which the land is situated. ”

(4) In that section, in subsection (2), for “(1)(b)” there is substituted “(1)” and after “given” there is inserted “and published”.

(5) In that section, for subsections (5) and (6) there is substituted—

“(5) For the purposes of this section, a person has a relevant interest in land if—

(a) that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or

(b) that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds 1 month.”

(6) In section 5 (earliest date for execution of declaration)—

(a) in subsection (1), after “publication” there is inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) is omitted.

(7) In section 7 (constructive notice to treat), in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” are omitted.

(8) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 must be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land or rights over land under this Order.

Acquisition of subsoil

22.—(1) In connection with the compulsory acquisition of the existing rights referred to in article 16 (compulsory acquisition of existing rights in land) and the compulsory creation and acquisition of the new rights referred to in article 18 (compulsory acquisition of rights, etc.) and article 27 (statutory undertakers), the undertaker may acquire compulsorily such rights in the subsoil as may be required for any purpose for which the previously-mentioned rights may be acquired under that provision for the purposes of the authorised development.

(2) Where the undertaker acquires any rights in the subsoil under paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

Rights under or over streets

23.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or air-space over, any street within the works limits as may be required for the purposes of the authorised development and may use the subsoil or air-space 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 that forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of 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 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out authorised development

24.—(1) The undertaker may, in connection with the carrying out of the authorised development,—

(a) enter on and take temporary possession of the land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in column (3) of that Schedule;

(b) remove any buildings and vegetation from that land; and

(c) construct temporary works (including the provision of means of access) and buildings on that land.

(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.

(3) The undertaker may not, without the agreement of the owner of the land, remain in possession of any plot specified in Schedule 8 after the expiration of 1 year from the date that the authorised development has been completed in that plot unless notice of entry has been given under section 11 of the 1965 Act(33) or the land is the subject of a general vesting declaration.

(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 replace a building removed under this article.

(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 any power conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, must be determined under Part 1 of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) 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).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1) except that the undertaker is not precluded from acquiring new rights over any part of that land including the subsoil under article 18 (compulsory acquisition of rights, etc.) and article 22 (acquisition of subsoil).

(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 of the 1965 Act (refusal to give possession to acquiring authority)(34) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land or rights over land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 8.

Temporary use of land for maintaining authorised development

25.—(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 on and take temporary possession of any land within the works 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 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, except as provided in paragraph (12).

(4) The undertaker may remain in possession of land under this article only 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 provisions of this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, must be determined under Part 1 of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, 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 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land or rights over land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(11) In this article, “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.

(12) Where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; or

(c) the surrounding environment,

the requirement to serve not less than 28 days’ notice under paragraph (3) does not apply, and the undertaker may enter the land pursuant to paragraph (1) subject to giving such period of notice (if any) as is reasonably practicable in all the circumstances.

No double recovery

26.  Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Statutory undertakers

27.  Subject to compliance with the provisions of Schedule 9 (protective provisions), the undertaker may—

(a) create and acquire compulsorily the new rights over those parts of the Order land belonging to statutory undertakers as specified in column (1) of Schedule 5 (land in which only new rights, etc. may be acquired) as may be required for the purpose specified in relation to that land in column (2) of that Schedule);

(b) construct the authorised development in such a way as to cross underneath or over apparatus belonging to statutory undertakers within the works limits or as described in the book of reference;

(c) extinguish the rights of, and remove or reposition the apparatus belonging to, statutory undertakers within the works limits; and

(d) construct over existing apparatus belonging to statutory undertakers any necessary track or roadway (whether temporary or permanent) together with the right to maintain and or remove the same, and install such service media under or over the existing apparatus needed in connection with the authorised development.

Recovery of costs of new connections

28.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 27 (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 27, any person who is—

(a) the owner or occupier of premises the drains of that communicated with that sewer; or

(b) the owner of a private sewer that 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) In this article—

“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(35); and

“public utility undertaker” has the same meaning as in the 1980 Act(36).

Railway and navigation crossings

29.—(1) Subject to the following provisions of this article, the undertaker may not under article 10 (street works) break up or open a street where the street, not being a highway maintainable at the public expense (within the meaning of the 1980 Act(37)),—

(a) is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority; or

(b) forms part of a level crossing belonging to any such undertakers, to such an authority or to any other person,

except with the consent of the undertakers, authority or, as the case may be, of the person to whom the level crossing belongs.

(2) Paragraph (1) does not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act(38).

(3) A consent given for the purpose of paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but must not be unreasonably withheld.

(4) In this article, “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary or harbour.

PART 6 MISCELLANEOUS AND GENERAL

Defence to proceedings in respect of statutory nuisance

30.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(39) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance), no order may be made, and no fine may be imposed, under section 82(2) of that Act(40) if the defendant shows that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and 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) of the Control of Pollution Act 1974(41) or a consent given under section 61 (prior consent for work on construction site) or section 65 (noise exceeding registered level) of that Act; or

(b) is a consequence of the use, construction or maintenance of the authorised development and 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 and section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded) of that Act do 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.

Operational land for purposes of 1990 Act

31.  Development consent granted by this Order must be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as operational land for the purposes of that Act).

Felling or lopping of trees, etc.

32.—(1) The undertaker may at any time fell or lop any tree or shrub within or overhanging land within the works limits, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with 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, must be determined under Part 1 of the 1961 Act.

Certification of plans, etc.

33.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

(a) the book of reference submitted as document reference WCGP 013.3, version 3, June 2014, in the application for this Order;

(b) the land plans submitted as document reference WCGP 011.1 version 3, June 2014, sheets 1 to 10 in the application for this Order;

(c) the works plans submitted as document reference WCGP 012.1 version 3, June 2014, sheets 1 to 10 in the application for this Order;

(d) the Yoxall AGI plan submitted as document reference WCGP 023.1 in the application for this Order and updated to version C, June 2014, drawing reference no. UK/PWLC0233/C;

(e) the environmental statement submitted as documents reference WCGP 014.1 (chapters), WCGP 014.2 (appendices), WCGP 014.3 (figures), and WCGP 030.013 (addendum, version 2, April 2014) in the application for this Order; and

(f) any other plans, drawings or documents referred to in this Order,

for certification that they are true copies of the plans, drawings and documents referred to in this Order.

(2) A plan, drawing or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Arbitration

34.  Any difference under any provision of this Order (other than a difference that falls to be determined by the tribunal), unless otherwise provided for, 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 Secretary of State.

Protection of interests

35.  Schedule 9 (protective provisions) has effect.

Service of notices

36.—(1) A notice or other document required or authorised to be served for the purpose 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 written 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 of the Interpretation Act 1978(42) 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 purpose 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 purpose of this Order is served or sent by electronic transmission, the requirement must 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 other document is capable of being accessed by the recipient;

(c) the notice or other document is legible in all material respects; and

(d) the notice or other 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 7 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) the revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article is not to be taken to 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 then it would be served, given or supplied by means of a notice or document in printed form.

Signed by authority of the Secretary of State for Energy and Climate Change

Giles Scott

Head of National Infrastructure Consents

Department of Energy and Climate Change

16th December 2014