32.—(1) This article applies to—
(a)any agreement for leasing to any person the whole or any part of the authorised development or the right to use the same; and
(b)any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,
so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person's use.
(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.
(3) Accordingly, no such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—
(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;
(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or
(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.
Commencement Information
I1Art. 32 in force at 14.4.2020, see art. 1
33. 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 not being operational land).
Commencement Information
I2Art. 33 in force at 14.4.2020, see art. 1
34.—(1) Where proceedings are brought under section 82(1) M1 of the Environmental Protection Act 1990 (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) M2 of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order is to be made, and no fine may be imposed, under section 82(2) of that Act 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 that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 M3 (prior consent for work on construction sites) of the Control of Pollution Act 1974 M4;
(b)is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
(c)is a consequence of the use of the authorised development and that it cannot reasonably be avoided.
(2) Section 61(9) of the Control of Pollution Act 1974 (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) is not to 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.
Commencement Information
I3Art. 34 in force at 14.4.2020, see art. 1
Marginal Citations
M11990 c.43. Section 82(1) was amended by the Environment Act 1995 (c.25) section 107, Schedule 17, paragraph 6. Section 82(2) was inserted by the Noise and Statutory Nuisance Act 1993 (c.40), section 5(2) and amended by the Environment Act 1995.
M2Relevant amendments to section 79(1) were made by the Noise and Statutory Nuisance Act 1993, section 2, the Environment Act 1995 c.25, section 120, Schedule 22, paragraph 89(2) and by the Clean Neighbourhoods and Environment Act 2005 c.16, section 101.
M3Section 61 was amended by the Building Act 1984 c.55, section 133(2), Schedule 7, the Environmental Protection Act 1990 c.43, section 162, Schedule 15 paragraph 15 and the Environment Act 1995 c.25, Schedule 24 paragraph 1.
35.—(1) The undertaker must, as soon as practicable after the date on which this Order is made, submit to the Secretary of State copies of the documents listed in Schedule 9 (documents to be certified) for certification that they are true copies of the plans or documents referred to in this Order.
(2) A plan or document so certified is admissible in any proceedings as evidence of the contents of the plan or document of which it is a copy.
Commencement Information
I4Art. 35 in force at 14.4.2020, see art. 1
36.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a)by post;
(b)by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c)with the consent of the recipient and subject to paragraphs (6) to (8), by electronic transmission.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 of the Interpretation Act 1978 M5 (references to service by post) 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 that body corporate, the registered or principal office of that body; and
(b)in any other case, the last known address of that person at that time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having an interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—
(a)addressing it to that person by the description of “owner”, or as the case may be “occupier” of the land (describing it); and
(b)either leaving it in the hands of the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—
(a)the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;
(b)the notice or document is capable of being accessed by the recipient;
(c)the notice or document is legible in all material respects; and
(d)in a form sufficiently permanent to be used for subsequent reference.
(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within seven days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.
(7) Any consent to the use of an electronic transmission by a person may be revoked by that person in accordance with paragraph (8).
(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—
(a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and
(b)such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 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.
37.—(1) Where an application is made to or request is made of the relevant planning authority, a relevant highway authority, a traffic authority, a street authority, or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any of the provisions of the Order (not including the requirements), such consent, agreement or approval to be validly given, must be given in writing and must not be unreasonably withheld or delayed.
(2) Save for the applications made pursuant to Schedule 7 (procedure for discharge of requirements) and any application made to Highways England, if, within 42 days after the application or request has been submitted to an authority or an owner as referred to in paragraph (1) of this article (or such longer period as may be agreed in writing with the undertaker) it has not notified the undertaker of its decision (and if it is a disapproval the grounds of disapproval), it is deemed to have approved the application or request.
(3) Schedule 7 is to have effect in relation to all consents, agreements or approvals required from the relevant planning authority pursuant to the requirements.
(4) The powers conferred by paragraph (1) do not apply to an application to or request made of Highways England in relation to the A5(T).
Commencement Information
I6Art. 37 in force at 14.4.2020, see art. 1
38. Subject to article 37 (procedure in relation to certain approvals etc.) and except where otherwise provided for in this Order any difference under any provision of this Order, is to 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.
Commencement Information
I7Art. 38 in force at 14.4.2020, see art. 1