The Midland Metro (Birmingham City Centre Extension, etc.) (Land Acquisition and Variation) Order 2016

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Midland Metro (Birmingham City Centre Extension, etc.) (Land Acquisition and Variation) Order 2016 and comes into force on 14th June 2016.

Interpretation

2.—(1) In this Order—

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

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

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

“the 1981 Act” means the Acquisition of Land Act 1981(4);

“the 1984 Act” means the Road Traffic Regulation Act 1984(5);

“the 1989 Act” means the Midland Metro Act 1989(6);

“the 1990 Act” means the Town and Country Planning Act 1990(7);

“the 1991 Act” means the New Roads and Street Works Act 1991(8);

“the 1993 Act” means the Railways Act 1993(9);

“the 2005 Order” means the Midland Metro (Birmingham City Centre Extension, etc.) Order 2005(10);

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

“authorised tramway” means the street tramway authorised by this Order;

“the authorised works” means the Order works and the works authorised by the 2005 Order;

“the 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;

“the City” means the City of Birmingham;

“cycle track” has the same meaning as in the 1980 Act(11);

“the deposited section” means the section certified by the Secretary of State as the deposited section for the purposes of this Order;

“electronic transmission” means a communication transmitted—

(a)

by means of an electronic communications network; or

(b)

by other means but while in electronic form;

“the Executive” means West Midlands Passenger Transport Executive;

“footpath” and “footway” have the same meaning as in the 1980 Act;

“highway” and “highway authority” have the same meaning as in the 1980 Act;

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

“the limits of deviation” means the limits of deviation for the authorised tramway shown on the works plan;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace, and “maintenance” is to be construed accordingly;

“the Order limits” means—

(a)

the limits of deviation; and

(b)

the limits of additional land to be used shown on the works plan;

“the Order works” means the authorised tramway and any other works authorised by this Order;

“owner” in relation to land has the same meaning as in section 7 (interpretation) of the 1981 Act(12);

“the planning permission” means the outline permission granted to Argent Group plc by Birmingham City Council on 8th February 2013 in respect of planning application number 2012/05116/PA and includes any revision or replacement to, or variation of, that permission that provides for the widening of the highway within Paradise Circus Queensway;

“statutory undertaker” means—

(a)

any person who is a statutory undertaker for any of the purposes of the 1990 Act; and

(b)

any public communications provider within the meaning of section 151(1) (interpretation of Chapter 1) of the Communications Act 2003(13);

“street” includes part of a street;

“street authority” in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

“street tramway” means any part of a tramway which is laid along a street whether or not the section of the street in which its rails are laid may be used by other traffic;

“tramcar” means any vehicle (whether or not used for the carriage of passengers) carried on flanged wheels along the rails of a tramway;

“tramway” means a system of transport used wholly or mainly for the carriage of passengers and employing parallel rails which—

(a)

provide support and guidance for vehicles carried on flanged wheels; and

(b)

are laid wholly or mainly along a street or in any other place to which the public has access (including a place to which the public has access only on making a payment);

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

“the works plan” means the plan certified by the Secretary of State as the works plan for the purposes of this Order.

(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 over its surface.

(3) All directions, distances, areas, lengths and points stated in any description of works, powers or lands are approximate.

(4) References in this Order to points identified by letters (or letters and numbers) are to be construed as references to the points so marked on the works plan.

Application of the 1991 Act

3.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—

(a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act; or

(b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(14) (dual carriageways and roundabouts) or 184(15) (vehicle crossings) of the 1980 Act.

(2) In Part 3 of the 1991 Act, references, in relation to major highway works, to the highway authority concerned are, in relation to works which are major highway works under paragraph (1), to be construed as references to the Executive.

(3) The provisions of the 1991 Act mentioned in paragraph (4), and any regulations made, or code of practice issued or approved under, those provisions apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street by the Executive under the powers conferred by article 11 (temporary stopping up of streets) where no street works are executed in that street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in that street by the Executive.

(4) The provisions of the 1991 Act(16) referred to in paragraph (3) are—

• section 54(17) (advance notice of certain works) subject to paragraph (5);

• section 55(18) (notice of starting date of works) subject to paragraph (5);

• section 59(19) (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 69 (works likely to affect other apparatus in the street);

• section 76 (liability for cost of temporary traffic regulation); and

• section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purposes of the provisions mentioned above.

(5) Sections 54 and 55 of the 1991 Act as applied by paragraph (3) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

Incorporation of the Railways Clauses Consolidation Act 1845

4.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(20) are incorporated in this Order—

• section 97 (default in payment of tolls);

• section 103(21) (refusal to quit carriage at destination);

• section 105 (carriage of dangerous goods on railway)(22);

• section 144(23) (defacing of boards); and

• section 145(24) (recovery of penalties).

(2) In those provisions as incorporated in this Order—

“the company” means the Executive;

“goods” includes any thing conveyed on the authorised tramway;

“lease” includes an agreement for a lease;

“prescribed”, in relation to any such provision, means prescribed by this Order for the purposes of that provision;

“the railway” means the authorised tramway, together with any authorised works ancillary to the authorised tramway;

“the special Act” means this Order; and

“toll” includes any rate or charge or other payment payable under this Order or any other enactment for any passenger or goods conveyed on the authorised tramway.

Application of the Midland Metro Acts

5.—(1) The authorised tramway is to be treated as part of the Metro (as defined in the Midland Metro Acts) for—

(a) the purposes of the following provisions of the 1989 Act—

• section 3(3) (incorporation and application of enactments relating to railway);

• section 17(1) (transport consultative committee);

• section 25 (provisions as to use of electrical energy);

• section 46 (power to lop trees overhanging railway);

• section 47 (removal of obstructions);

• section 49 (byelaws relating to Metro);

• section 50 (modification of railway regulation enactments);

• section 51 (carriages on Metro deemed public services vehicles);

• section 52 (power to contract for police); and

• section 54 (powers of disposal, agreements for operation, etc.); and

(b) for the purposes of section 18 (application of landlord and tenant law to Metro leases) of the (No. 2) 1992 Act,

but it is not to be so treated for—

(i) the purposes of the following provisions of the 1989 Act—

• section 5(4) and (5) (application of provisions of Public Utilities Street Works Act 1950 and Road Traffic Regulation Act 1984);

• section 15 (gauges of railways and restrictions on working);

• section 24 (attachment of brackets, etc., to buildings for purposes of works);

• section 44 (insulation against noise); or

• section 45 (orders for insulating new buildings); or

(ii) section 24 (authorisation of new level crossings) of the 1992 Act.

(2) The authorised tramway is to be treated as part of the Metro (as defined in the Midland Metro Acts) for the purposes of sections 4 to 7 of the Midland Metro (Penalty Fares) Act 1991(25) and of any order made from time to time under sections 3(2) (operation of Act) or 5(2) (amount of penalty fare) of that Act (whether made before or after this Order comes into force), and expressions defined in section 2 of that Act have effect accordingly.

(3) In the application of the Midland Metro Acts to this Order—

(a) the reference to section 56 (the Transport Consultative Committees) of the Transport Act 1962(26) in section 17(1) (transport consultative committee) of the 1989 Act is to be treated as a reference to section 25 (proposal to discontinue excluded services) of the Railways Act 2005(27) and for the words from “as if” until the end of that subsection substitute “these services were special procedure excluded services for the purpose of that section”;

(b) references to the railway in section 46(1) (power to lop trees overhanging railway) of the 1989 Act are to be treated as including the authorised tramway;

(c) the reference in section 47 (removal of obstructions) of the 1989 Act to any tramway is to be treated as a reference to the authorised tramway;

(d) references to railway premises in sections 49 (byelaws relating to Metro) and 52 (power to contract for police) of the 1989 Act are to be treated as including any premises of the Executive used in connection with the operation or maintenance of the authorised tramway.

(4) Section 8(4) (further works and powers) of the 1989 Act is to have effect for the purposes of the authorised tramway as it has effect for the purposes of the tramways authorised by that Act.

(5) In this article—

“the (No. 2) 1992 Act” means the Midland Metro (No. 2) Act 1992(28);

“the 1992 Act” means the Midland Metro Act 1992(29); and

“the Midland Metro Acts” means the 1989 Act, the Midland Metro (Penalty Fares) Act 1991, the 1992 Act and the (No. 2) 1992 Act.

PART 2 WORKS PROVISIONS

Principal powers

Power to construct and maintain works

6.—(1) The Executive may construct and maintain the street tramway authorised as part of Work No. 2 by the 2005 Order on a revised alignment within Paradise Circus Queensway as widened as part of the Paradise Circus development, 23 metres north of the centre line shown on the works plan referred to in that Order.

(2) Subject to article 7 (power to deviate, etc.), the authorised tramway may only be constructed in the lines or situations shown on the works plans and in accordance with the levels shown on the deposited section.

(3) Subject to paragraph (6), the Executive may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the authorised tramway namely—

(a) works required for, or in connection with, the control of any vehicular and pedestrian traffic on the authorised tramway;

(b) works for the strengthening, alteration or demolition of any building or structure;

(c) works to install, or alter the position of, any apparatus or street furniture, including mains, sewers, drains, cables and lights;

(d) works to construct and maintain retaining walls;

(e) landscaping, environmental and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works; and

(f) works for the benefit or protection of premises affected by the authorised works.

(4) Subject to paragraph (6), the Executive may carry out such other works (of whatever nature) as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the authorised tramway.

(5) Where the Executive lays down conduits for the accommodation of cables or other apparatus for the purposes of the authorised works or associated traffic control, it may provide in, or in connection with, such conduits, accommodation for the apparatus of any other person, and manholes and other facilities for access to such accommodation, and may permit the use of such conduits and facilities on such terms and conditions as may be agreed between it and such other person.

(6) Paragraphs (3) and (4) only authorise the carrying out or maintenance of works—

(a) within the limits of deviation; or

(b) on land specified in column (1) of Part 1 or 2 of Schedule 1 (acquisition of land) for the purpose specified in relation to that land in column (2) of Part 1 or 2 of that Schedule.

(7) The Executive may remove any works constructed by it under this Order which have been constructed as temporary works or which it no longer requires.

(8) In constructing and maintaining the works authorised by the 2005 Order the Executive may carry out works to widen the highway within the numbered plots 02 and 03 shown on the land plan.

(9) In this article the Paradise Circus development means a development in accordance with the planning permission.

Power to deviate, etc.

7.—(1) In constructing or maintaining the authorised tramway, the Executive may—

(a) deviate laterally from the lines or situations shown on the works plan within the limits of deviation; and

(b) subject to article 8(3)(b) and (c) (power to alter layout, etc., of streets), deviate vertically from the levels shown on the deposited section—

(i) to any extent not exceeding 3 metres upwards; and

(ii) to any extent downwards as may be necessary or expedient.

(2) The Executive may in constructing or maintaining the authorised tramway lay down—

(a) double lines of rails in place of single lines;

(b) single lines of rails in place of double lines;

(c) interlacing lines of rails in place of double or single lines; or

(d) double or single lines of rails in place of interlacing lines.

(3) The power conferred by paragraph (2) must not be exercised without the consent of the street authority, but such consent must not be unreasonably withheld.

Streets

Power to alter layout, etc., of streets

8.—(1) The Executive may realign the kerbline of the highway at—

(a) the junction of Paradise Street and Suffolk Street Queensway between points A1 and A2 shown on the works plan; and

(b) at the junction of Bridge Street and Broad Street between points A3 and A4 so shown.

(2) Without limitation on the scope of the powers conferred by article 6 (power to construct and maintain works) or paragraph (1) but subject to paragraph (3)(a), the Executive may for the purpose of constructing, maintaining or using the authorised tramway alter the layout of any street in the City along which the tramway is or is to be laid, and the layout of any street adjacent to such a street; and, without limitation on the scope of that power, the Executive may—

(a) increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street;

(b) alter the level or increase the width of any kerb, footpath, footway, cycle track or verge;

(c) construct, alter or remove traffic islands and central reserves;

(d) reduce the width of the carriageway of the street by forming a reserved area in the street as a stopping place for tramcars or by carrying out other works for that purpose;

(e) carry out strengthening and remedial works to the highway;

(f) carry out works to the carriageway of the street for the purpose of deterring or preventing vehicles other than tramcars from passing along the tramway;

(g) make and maintain crossovers, sidings or passing places; and

(h) carry out works for the provision or alteration of parking places.

(3) The following require the consent of the street authority—

(a) the exercise of the powers conferred by paragraph (2);

(b) the exercise of the power to deviate conferred by article 7(1)(b) (power to deviate, etc.) with respect to the construction or maintenance of the authorised tramway, where it would require the alteration of the level of the carriageway of the street carrying the tramway;

(c) the exercise of the power to deviate conferred by article 7(1)(b) with respect to the construction or maintenance of the authorised tramway comprising the alteration of the level or alignment of a highway; or

(d) the exercise of the power conferred by article 9 (power to keep apparatus in streets) with respect to the placing in the street of supports for overhead line equipment for the authorised tramway.

(4) Consent under paragraph (3) must not be unreasonably withheld.

Power to keep apparatus in streets

9.—(1) The Executive may, subject to article 8(3)(d) (power to alter layout, etc., of streets), for the purposes of or in connection with the construction, maintenance and use of the authorised tramway, place and maintain in any street in which the tramway is or is to be laid and in any street having a junction with such a street any work, equipment or apparatus including but without limitation on the scope of that power, foundations, platforms, road islands, substations, electric lines and any electrical or other apparatus.

(2) In this article—

(a) “apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

(b) “electric line” has the meaning given by section 64(1) (interpretation etc. of Part 1) of the Electricity Act 1989(30); and

(c) the reference to any work, equipment or apparatus in a street includes a reference to any work, equipment or apparatus under, over, along or upon the street.

Power to execute street works

10.  The Executive may, for the purpose of exercising the powers conferred by article 9 (power to keep apparatus in streets) and the other provisions of this Order, enter upon any street in which the authorised tramway is or is to be laid and any street having a junction with such a street, and may execute any works required for or incidental to the exercise of those powers including, without limitation on the scope of that power, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street.

Temporary stopping up of streets

11.—(1) The Executive may, during and for the purposes of the execution of the Order works, temporarily stop up, alter or divert any street in the City and may for any reasonable time—

(a) divert the traffic from the street; and

(b) subject to paragraph (2), prevent all persons from passing along the street.

(2) The Executive must provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.

(3) The Executive must not exercise the powers conferred by this article without the consent of the street authority, but such consent must not be unreasonably withheld.

(4) Any person who suffers loss by the 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.

Access to works

12.—(1) The Executive may, for the purposes of the construction or operation of the Order works, form and lay out means of access, or improve existing means of access in such locations within the Order limits as may be approved by the highway authority.

(2) Approval of the highway authority under paragraph (1) must not be unreasonably withheld.

Restoration of streets if street tramway discontinued

13.  If the Executive permanently ceases to operate the authorised tramway (“the discontinued tramway”), it must as soon as reasonably practicable and unless otherwise agreed with the street authority—

(a) remove from any street in which the discontinued tramway is laid the rails and any other works, equipment and apparatus which have become redundant; and

(b) restore, to the reasonable satisfaction of the street authority, the portion of the street along which the discontinued tramway was laid, regard being had to the condition of the street before the tramway was laid.

Agreements with street authorities

14.—(1) A street authority and the Executive may enter into agreements with respect to—

(a) the construction of any new street under the powers conferred by this Order;

(b) any stopping up, alteration or diversion of a street under the powers conferred by this Order; or

(c) the execution in the street of any of the works referred to in article 10 (power to execute street works).

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

(a) provide for the street authority to carry out any function under this Order which relates to the street in question; and

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

Supplemental powers

Discharge of water

15.—(1) The Executive may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the Order works and for that purpose may, on any land within the Order limits, lay down, take up and alter pipes and make openings into, and connections with, the watercourse, sewer or drain.

(2) Any dispute arising from the exercise of the powers conferred by paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(31).

(3) The Executive 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 Executive must not make any opening into any public sewer or drain except in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld.

(5) The Executive must not, in exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The Executive must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2010(32).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board or a local authority;

(b) “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

(c) other expressions used both in this article and in the Water Resources Act 1991(33) have the same meaning as in that Act.

Safeguarding works to buildings

16.—(1) Subject to the following provisions of this article the Executive may at its own expense and from time to time carry out such safeguarding works to any building which is within the Order limits as the Executive considers to be necessary or expedient.

(2) Safeguarding works may be carried out—

(a) at any time before or during the construction in the vicinity of the building of any part of the Order works; or

(b) after the completion of the construction of that part of the Order works in the vicinity of the building, at any time up to the end of the period of 5 years beginning with the day on which that part of the Order works is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised, the Executive may (subject to paragraph 5) enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out safeguarding works under this article to a building the Executive may (subject to paragraphs (5) and (6))—

(a) enter the building and land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land adjacent to the building, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (1) to carry out safeguarding works to a building;

(b) a right under paragraph (3) to enter a building and any land within its curtilage;

(c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a right under paragraph (4)(b) to enter land,

the Executive must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the safeguarding works proposed to be carried out.

(6) Where notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the safeguarding works or to enter the building or land to be referred to arbitration under article 45 (arbitration).

(7) The Executive must compensate the owners and occupiers of any building or land in relation to which the powers conferred by this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a) safeguarding works are carried out under this article to a building; and

(b) within the period of 5 years beginning with the day on which the part of the authorised works constructed within the vicinity of the building is first opened for use, it appears that the safeguarding works are inadequate to protect the building against damage caused by the construction or operation of that part of the works,

the Executive must compensate the owners and occupiers of the building for any damage sustained by them.

(9) Without affecting article 42 (no double recovery) nothing in this article relieves the Executive from any liability to pay compensation under section 10(2)(34) (further provision as to compensation for injurious affection) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(11) This article does not apply to any of the land specified in column (1) of Part 2 of Schedule 1 (acquisition of rights only).

(12) In this article “safeguarding works”, in relation to a building means—

(a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works; and

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works.

Power to construct temporary tramways

17.—(1) The Executive may, if it considers it necessary or expedient in consequence of any street works executed or proposed to be executed in a street along which the authorised tramway is constructed—

(a) remove or discontinue the operation of the authorised tramway; and

(b) lay, maintain and operate in that street or in a street near to that street a temporary tramway in place of the authorised tramway.

(2) The powers conferred by this article may only be exercised with the consent of the street authority but such consent may not be unreasonably withheld.

(3) The provisions of articles 8(2) (power to alter layout, etc. of streets), 9 (power to keep apparatus in streets), 10 (power to execute street works) and 33 (traffic signs) apply in relation to temporary tramways laid under this article as they apply in relation to the authorised tramway.

Power to survey and investigate land

18.—(1) The Executive may, in relation to any land within the Order limits, for the purposes of this Order—

(a) survey or investigate the land;

(b) without limitation on the scope of sub-paragraph (a), make trial holes in such positions as the Executive thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without limitation on the scope of sub-paragraph (a), carry out archaeological investigations on the land;

(d) take steps to protect or remove any flora or fauna on the land where the flora or fauna may be affected by the carrying out of the Order works;

(e) place on, leave on and remove from the land apparatus for use in connection with the exercise of any powers conferred by sub-paragraphs (a) to (d); and

(f) enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (e).

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 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 Executive—

(a) must, if so required, before or after entering the land produce written evidence of authority to do so; and

(b) may take onto land such vehicles and equipment as are necessary for the purpose of exercising any of the powers conferred by paragraph (1).

(4) No trial hole may be made under this article in a carriageway or footway without the consent of the highway authority, but such consent must not be unreasonably withheld.

(5) The Executive must pay compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Mode of construction and operation of tramway

19.—(1) The authorised tramway must be operated by electricity or, in an emergency or for the purposes of construction or maintenance, by diesel power or other means.

(2) The authorised tramway must be constructed to a nominal gauge of 1,435 millimetres.

(3) Where a tramway is constructed along a street or in any place to which the public has access (including any place to which the public has access only on the making of a payment), the Executive must take such care as in all the circumstances is reasonable to ensure that the tramway is constructed and maintained so that the street or other place is safe for other users.

(4) When considering what measures are required under paragraph (3), the Executive must have particular regard to the character and usage of the street or other place and to those who could reasonably be expected to use it.

PART 3 ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

20.  The Executive may acquire compulsorily so much of the land in the City specified in column (1) of Part 1 of Schedule 1 (acquisition of land) (being land shown on the land plan and described in the book of reference) as may be required for any of the purposes specified in relation to that land in column (2) of that Part and may use any land so acquired for those purposes or for any other purposes that are ancillary to its tramway undertaking.

Application of Part 1 of the 1965 Act

21.—(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the acquisition of land under this Order—

(a) as it applies to a compulsory purchase to which the 1981 Act applies; and

(b) as if this Order were a compulsory purchase order under that Act.

(2) Part 1 of the 1965 Act, as so applied, has effect as if section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provision as to the giving of bonds) were omitted.

Application of Compulsory Purchase (Vesting Declarations) Act 1981

22.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(35) applies as if this Order were a compulsory purchase order.

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

(3) In section 3 (preliminary notices), for subsection (1) substitute—

“(1) Before making a declaration under section 4 with respect to any land which is 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)” substitute “(1)” and after “given” insert “and published”.

(5) In that section, for subsections (5) and (6) substitute—

“(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 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 one month.”.

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

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

(b) omit subsection (2).

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

(8) References to the 1965 Act are construed as references to that Act as applied to the acquisition of land under article 20 (power to acquire land).

Power to acquire new rights

23.—(1) The Executive may acquire compulsorily such easements or other rights over any land in the City referred to in article 20 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision.

(2) Subject to paragraph (4) the Executive may acquire compulsorily such easements or other rights over any land in the City specified in column (1) of Part 2 of Schedule 1 (acquisition of rights only) (being land shown on the land plan and described in the book of reference) as may be required for any of the purposes specified in relation to that land in column (2) of that Part.

(3) In paragraphs (1) and (2), the power compulsorily to acquire easements or other rights includes the power to do so by creating them as well as by acquiring easements or other rights already in existence.

(4) In exercising its powers under paragraph (2) the Executive may not acquire rights over plots 16, 17, 18, 19, 20, 21, 23, 24, 25, 31 and 32 unless any existing buildings in those plots have been demolished in accordance with the planning permission.

(5) Subject to section 8 (other provisions as to divided land) of the 1965 Act (as substituted by paragraph 5 of Schedule 2 (modification of compensation and compulsory purchase enactments for creation of new rights)), where a right over land is acquired under paragraph (1) or (2) the person acquiring the right is not required to acquire a greater interest in the land.

(6) In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, the Executive may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.

(7) Schedule 2 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 Order of a right over land by the creation of a new right.

Rights under or over streets

24.—(1) The Executive may enter upon and appropriate so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the Order works and may use the subsoil or air-space for those purposes or any other purpose ancillary to the authorised tramway.

(2) Subject to paragraph (4) the power under paragraph (1) may be exercised in relation to a street without the Executive being required to acquire any part of the street or any easement or right in the street.

(3) Subject to paragraph (5) any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the Executive acquiring any part of that person’s interest in the land, and who suffers loss by the exercise of that power is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(4) Paragraph (2) does not apply in relation to—

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in or on a street which forms part of a building fronting on to the street.

(5) Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary possession of land

Temporary use of land for construction of works

25.—(1) The Executive may, in connection with the carrying out of the authorised works—

(a) enter upon and take temporary possession of—

(i) any of the land in the City specified in column (1) of Schedule 3 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule, and

(ii) any of the relevant land in respect of which no notice of entry has been served under section 11(36) (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 (execution of declaration of the Compulsory Purchase (Vesting Declarations) Act 1981;

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

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

(d) construct any permanent works specified in relation to that land in column (2) of Schedule 3 or any mitigation works on that land.

(2) Not less than 28 days before entering upon and taking temporary possession of land under this article the Executive must serve notice of the intended entry on the owners and occupiers of the land.

(3) The Executive may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of any land specified in column (1) of Schedule 3 (land of which temporary possession may be taken), after the end of the period of one year beginning with the date of completion of the works specified in relation to that land in column (2) of Schedule 3; or

(b) in the case of the relevant land, after the end of the period of one year beginning with the date of completion of the works for which temporary possession of the land was taken unless the Executive has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the Executive must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the Executive is not required to replace a building removed under this article or restore the land on which any works have been constructed under paragraph (1)(d).

(5) The Executive 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 powers 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, is to be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Without affecting article 42 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provision as to compensation for injurious affection)(37) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

(8) The powers of compulsory acquisition of land conferred by this Order do not apply in relation to the land referred to in paragraph (1)(a) except that the Executive is not to be precluded from acquiring new rights over any land specified in Part 2 of Schedule 1 (acquisition of land and rights) under article 23 (power to acquire new rights).

(9) Where the Executive takes possession of land under this article, it is not required to acquire the land or any interest in it.

(10) Section 13 (refusal to give possession to acquiring authority)(38) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 21(1) (application of Part 1 of the 1965 Act).

(11) Paragraph (1)(a)(ii) does not authorise the Executive to take temporary possession of—

(a) any dwelling house or garden belonging to a dwelling house; or

(b) any building (other than a dwelling house) if it is for the time being occupied.

(12) In this article “the relevant land” means any land within the Order limits other than—

(a) the land specified in column (1) of Part 2 of Schedule 1 (acquisition of land); and

(b) the land specified in column (1) of Schedule 3 to this Order.

Temporary use of land for maintenance of works

26.—(1) Subject to paragraph (2), at any time during the maintenance period relating to the Order works, the Executive may—

(a) enter upon and take temporary possession of any land within the Order limits and lying within 20 metres from those works if such possession is reasonably required for the purpose of maintaining the works or any ancillary works connected with them; 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 Executive to take temporary possession of—

(a) any house or garden belonging to a house;

(b) any building (other than a house) if it is for the time being occupied; or

(c) any land specified in column (1) of Part 2 of Schedule 1 (acquisition of land and rights) (but without affecting the power to acquire rights under article 23(2) (power to acquire new rights) in relation to that land).

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the Executive must serve notice of the intended entry on the owners and occupiers of the land.

(4) The Executive may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance works 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 Executive must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(6) The Executive 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 powers conferred by this article.

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

(8) Without affecting article 42 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provision as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).

(9) Where the Executive takes possession of land under this article, it is not required to acquire the land or any interest in it.

(10) Section 13 (refusal to give possession to acquiring authority)(39) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 21(1) (application of Part 1 of the 1965 Act).

(11) In this article—

(a) “the maintenance period”, in relation to the Order works, means the period of 5 years beginning with the date on which the work is opened for use; and

(b) any reference to land within a specified distance of a work includes, in the case of work under the surface of the ground, a reference to land within the specified distance of the point on the surface below which the work is situated.

Compensation

Disregard of certain interests and improvements

27.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land under this Order, the tribunal must not take into account—

(a) any interest in land; or

(b) any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Supplementary

Acquisition of part of certain properties

28.—(1) This article applies instead of section 8(1)(40) (other provisions as to divided land) of the 1965 Act (as applied by article 21 (application of the 1965 Act)) in any case where—

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming part only of a house, building or manufactory or part only of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the Executive a counter-notice objecting to the sale of the land subject to the notice to treat and stating that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner must sell only the land subject to the notice to treat is, unless the Executive agrees to take the land subject to the counter-notice, to be referred to the tribunal.

(5) If on such a reference the tribunal determines that the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat forms part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat forms part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat is deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determines that—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the Executive is authorised to acquire compulsorily under this Order.

(8) If the Executive agrees to take the land subject to the counter-notice, or if the tribunal determines that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the Executive is authorised to acquire compulsorily under this Order.

(9) In any case where by virtue of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the Executive may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and if it does so it must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell part only of a house, building or manufactory or part only of land consisting of a house with a park or garden, the Executive must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Extinction or suspension of rights of way

29.—(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 Executive, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the Executive under section 11(1) or (2) (powers of entry) of the 1965 Act,

whichever is sooner.

(2) Subject to the provisions of this article, all private rights of way over land of which the Executive takes temporary possession under this Order are suspended and unenforceable for as long as the Executive remains in lawful possession of the land.

(3) 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.

(4) This article does not apply in relation to any right of way to which section 271 or 272 (extinguishment of rights of statutory undertakers etc.)(41) of the 1990 Act applies.

(5) Paragraphs (1) and (2) have effect subject to any agreement made (whether before or after this Order comes into force) between the Executive and the person entitled to the private right of way.

(6) Paragraph (1) has effect subject to any notice given by the Executive that that paragraph is not to apply to any right of way specified in the notice where the notice is given before whichever is the soonest of the events specified in sub-paragraphs (a) or (b) of that paragraph.

(7) Paragraph (2) has effect subject to any notice given by the Executive at any time before or after possession is taken that that paragraph is not to apply to any right of way specified in the notice or is only to apply to the right of way to the extent specified in the notice.

(8) This article does not apply to any of the land specified in column (1) of Part 2 of Schedule 1 (acquisition of land).

Time limit for exercise of powers of acquisition

30.—(1) After the end of the period of 5 years beginning with the day on which this Order comes into force—

(a) no notice to treat is to be served under Part 1 of the 1965 Act, as applied to the acquisition of land by article 21 (application of the 1965 Act); and

(b) no declaration is to be executed under section 4 (execution of declaration) of the Compulsory Purchase (Vesting Declarations) Act 1981(42), as applied by article 22 (application of Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The powers conferred by article 25 (temporary use of land for construction of works) cease at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the Executive remaining in possession of land after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4 OPERATION OF TRAMWAY SYSTEM

Power to operate and use tramway system

31.—(1) The Executive may operate and use the authorised tramway and the other Order works as a system, or part of a system, of transport for the carriage of passengers and goods.

(2) Subject to paragraph (4) and to section 54 (powers of disposal, agreements for operation, etc.) of the 1989 Act (as applied by article 5 (application of the Midland Metro Acts)), the Executive has, for the purpose of operating the authorised tramway, the exclusive right—

(a) to use the rails, foundations, cables, masts, overhead wires and other apparatus used for the operation of the tramway; and

(b) to occupy that part of the street in which that apparatus is situated.

(3) Any person who, without the consent of the Executive or other reasonable excuse, uses the apparatus mentioned in paragraph (2) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) Nothing in this article restricts the exercise of any public right of way over any part of a street in which apparatus referred to in paragraph 2 is situated except to the extent that the exercise of the right is constrained by the presence of the apparatus.

Power to charge fares

32.  The Executive may demand, take and recover or waive such charges for carrying passengers or goods on tramcars using the authorised tramway or for any other services or facilities provided in connection with the operation of the authorised tramway, as it thinks fit.

Traffic signs

33.—(1) The Executive may, for the purposes of, or in connection with the operation of, the authorised tramway, place or maintain traffic signs on or near any street along which tramcars using the authorised tramway are run.

(2) The Executive—

(a) must consult with the traffic authority as to the placing of signs; and

(b) unless the traffic authority is unwilling to do so and subject to any directions given under section 65 (powers and duties of highway authorities as to the placing of traffic signs)(43) of the 1984 Act, must enter into arrangements with the traffic authority for the signs to be placed and maintained by the traffic authority.

(3) Any power conferred by section 65 of the 1984 Act to give directions to a traffic authority or local traffic authority as to traffic signs includes a power to give directions to the Executive as to traffic signs under this article; and, the powers conferred by paragraph (1) are exercisable subject to and in conformity with any directions given under that section.

(4) A traffic authority or other authority having power under the 1984 Act to place and maintain, or cause to be placed and maintained, traffic signs on or near any street along which tramcars using the authorised tramway are run, must consult with the Executive as to the placing of any traffic sign which would affect the operation of the authorised tramway.

(5) Tramcars are taken to be public service vehicles for the purposes of section 122(2)(c) (exercise of functions by local authorities) of the 1984 Act.

(6) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

Obstruction of construction of authorised works

34.  Any person who, without reasonable excuse, obstructs another person from constructing the authorised tramway or any other Order works under the powers conferred by this Order is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

PART 5 MISCELLANEOUS AND GENERAL

Planning permission

35.  Planning permission, which is deemed by a direction under section 90(2A)(44) (development with government authorisation) of the 1990 Act to be granted in relation to the Order works, is to be treated as specific planning permission for the purposes of section 264(3)(a)(cases in which land is to be treated as operational land for the purposes of that Act) of that Act.

Statutory undertakers, etc.

36.  Schedule 4 (provisions relating to statutory undertakers, etc.) has effect.

Existing agreements

37.  The agreements listed in Schedule 5 (existing agreements) apply in relation to the exercise of the powers conferred by this Order as they apply to the exercise of the powers of the 2005 Order.

Minerals

38.—(1) Parts 2 and 3 of Schedule 2 (exception of minerals from compulsory purchase and regulation of the working of mines or minerals underlying an authorised undertaking) to the 1981 Act have effect in relation to land to which article 20 (power to acquire land) applies as if it were comprised in a compulsory purchase order providing for the incorporation with that order of those Parts of that Schedule.

(2) In their application under paragraph (1), Parts 2 and 3 of Schedule 2 to the 1981 Act have effect with the following modifications—

(a) references to the acquiring authority are to be construed as references to the Executive; and

(b) references to the undertaking are to be construed as references to the undertaking which the Executive is authorised by this Order to carry on.

Saving for highway authorities

39.  Nothing in this Order affects any power of a highway authority to widen, alter, divert or improve any highway along which the authorised tramway is constructed or operated.

Certification of plans, etc.

40.  The Executive must, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited section, the land plan and the works plan to the Secretary of State for certification that they are, respectively, true copies of the book of reference, the deposited section, the land plan and the works plan referred to in this Order; and a document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

41.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post; or

(b) with the consent of the recipient and subject to paragraphs (5) 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(45) 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 purposes 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 purposes of this Order is served or sent by electronic transmission the requirement is taken to be fulfilled where the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission either in writing or by electronic transmission.

(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 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 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) 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 7 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.

No double recovery

42.  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.

Disclosure of confidential information

43.  A person who—

(a) enters a factory, workshop or workplace under article 16 (safeguarding works to buildings) or 18 (power to survey and investigate land); and

(b) discloses to any person any information obtained as a result of that entry and relating to any manufacturing process or trade secret,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of that person’s performance of a duty in connection with the purposes for which the person was authorised to enter the land.

Withholding of consent

44.  Where it is provided in this Order that any consent or approval is not to be unreasonably withheld, any dispute as to whether it is so unreasonably withheld or as to any conditions subject to which it is given is (where no other provision is made in this Order with respect to the determination in question) to be determined by arbitration.

Arbitration

45.  Where under this Order (including any provision incorporated in or applied by this Order) any difference (other than a difference to which the provisions of the 1965 Act apply) is to be determined by or referred to arbitration, then the difference 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 notice in writing to the other), by the President of the Institution of Civil Engineers.

Protective provisions for Network Rail

46.  Schedule 6 (protective provisions for Network Rail) has effect.

Signed by authority of the Secretary of State

Martin Woods

Head of the Transport and Works Act Orders Unit

Department for Transport

24th May 2016