25.—(1) Subject to paragraphs (2) and (3), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction, operation 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 Order limits, make openings into, and connections with, the watercourse, public sewer or drain.
(2) 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 or delayed.
(3) 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 or delayed; and
(b)where that person has been given the opportunity to supervise the making of the opening.
(4) Where the person to whom the watercourse, sewer or drain belongs receives an application for consent under paragraph (2) or approval under paragraph (3)(a) and fails to notify the undertaker of its decision within 28 days of receiving an application, that person will be deemed to have granted consent or given approval, as the case may be.
(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, save where such damage or interference is required for the purpose of carrying out Works authorised under this Order.
(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) 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) will be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (Right to communicate with public sewers)(1).
(8) In this article—
(a)“public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority or a sewerage undertaker; and
(b)except as provided in article 2 (interpretation), other expressions used both in this article and in the Water Resources Act 1991(2) have the same meaning as in that Act.
(9) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016(3).
26.—(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 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 5 years beginning with the day on which that part of the authorised development is first opened for use.
(3) 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, and place on, leave on, and remove from the building any apparatus and equipment for use in connection with the survey.
(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 and survey any building and any land within its curtilage and place on, leave on or remove any apparatus or equipment;
(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) to (d), the notice must specify the protective works proposed to be carried out.
(6) Where a notice is served under paragraph (5), 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 protective works or to enter the building or land to be referred to arbitration under article 84 (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 reason of the exercise of those rights.
(8) Where—
(a)protective 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 development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use 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 will relieve the undertaker from any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance).
(10) Any compensation payable under paragraphs (7) or (8) will be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).
(11) Subject to paragraph (6), section 13(4) (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 Order by virtue of section 125(5) (application of compulsory acquisition provisions) of the 2008 Act.
(12) 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 carrying out, maintenance or use of the authorised development; and
(b)any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development.
27.—(1) The undertaker may, for the purposes of this Order, enter on any land shown within the Order limits or which may be affected by the authorised development 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.
(2) No land may be entered or equipment placed on, left on, or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land, such notice must indicate the nature of the survey or investigation that the undertaker intends to carry out.
(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 their 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 will be made under this article—
(a)in land located within the highway boundary without the consent of the highway authority; or
(b)in a private street without the consent of the street authority
but such consent must not be unreasonably withheld or delayed.
(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.
(6) If either a highway authority or street authority which has received an application for consent under paragraph (4) fails to notify the undertaker of its decision within 28 days of receiving the application, that authority is deemed to have granted the consent.
(7) 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 Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.
1991 c. 56. Section 106 was amended by section 35(8)(a) and 43(2) and paragraph 1 of Schedule 2 of the Compensation and Service (Utilities) Act 1992 (c. 43) and sections 36(2) and 99 of the Water Act 2003 (c. 37) and section 32 and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29). There are other amendments to this section which are not relevant to this Order.
As amended by sections 62(3) and 139(4)-(9) of, paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 223 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).
As amended by section 190 of, and paragraph 17 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22).