33.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits or which may be affected by the authorised development as the undertaker considers necessary or expedient.
(2) Protective works may be carried out—
(a)at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or
(b)after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of five years beginning with the date of final commissioning.
(3) Subject to paragraph (5), for the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.
(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—
(a)enter the building and any land within its curtilage; and
(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).
(5) Before exercising—
(a)a right under paragraph (1) to carry out protective works to a building;
(b)a right under paragraph (3) to enter a building and 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 undertaker 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 protective works proposed to be carried out.
(6) Where a 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 ten days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 42 (arbitration).
(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by the reason of the exercise of those rights.
(8) Where—
(a)protective works are carried out under this article to a building; and
(b)within a period of five years beginning with the date of final commissioning it appears that the protective works are inadequate to protect the building against damage caused by construction, operation or maintenance of that part of the authorised development,
the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.
(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the Planning Act 2008.
(10) Any compensation payable under paragraph (7) or (8) is to be determined, in the case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(11) In this article “protective 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, operation and maintenance or use of the authorised development;
(b)any works the purpose of which is to remedy any damage which has been caused to the building by the construction, operation and maintenance or use of the authorised development; and
(c)any works the purpose of which is to secure the safe operation of the authorised development or to prevent or minimise the risk of such operation being disrupted.
(12) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession of land under this article, to the same extent as it applies to the compulsory acquisition of land under this [F1Order] by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.
Textual Amendments
F1Word in art. 33(12) substituted (17.5.2021) by The Immingham Open Cycle Gas Turbine (Correction) Order 2021 (S.I. 2021/581), art. 1, Sch.
Commencement Information
I1Art. 33 in force at 1.9.2020, see art. 1