Temporary use of land for carrying out the authorised developmentE+W
37.—(1) The undertaker may, in connection with the carrying out of the authorised development, but subject to article 26 (time limit for exercise of authority to acquire land compulsorily)—
(a)enter on and take possession of—
(i)the land specified in columns (1) and (2) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and
(ii)any other Order land in respect of which no notice of entry has been served under section 11(1) (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 1981 Act(2);
(b)remove any electric line, electrical plant, structures, apparatus, buildings and vegetation from that land;
(c)construct temporary works (including the provision of means of access) and buildings or structures on that land; and
(d)construct any permanent works specified in relation to that land as are mentioned in column (3) of Schedule 7, or any other mitigation works in connection with the authorised development; and
(e)carry out any soil reprofiling work.
(2) 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 and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).
(3) The undertaker 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 land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (4) of Schedule 7; or
(b)in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by 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 1981 Act in relation to that land.
(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—
(a)replace a building removed under this article;
(b)restore the land on which any permanent works have been constructed under paragraph (1)(d);
(c)remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development;
(d)remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development;
(e)restore the land on which any soil reprofiling work has occurred; or
(f)remove any temporary works where this has been agreed with the owners of the land.
(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 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 as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession of the land.
(8) Nothing in this article affects any liability to pay compensation under section 152(3) (compensation in case where no right to claim in nuisance) of the 2008 Act 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).
(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(4) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use 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.
(11) Paragraph (1)(a)(ii) does not authorise the undertaker to take temporary possession of any land which the undertaker is not authorised to acquire under article 24 (compulsory acquisition of land) or article 27 (compulsory acquisition of rights and imposition of restrictive covenants).
Commencement Information
I1Art. 37 in force at 8.9.2022, see art. 1
Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1) and sections 186, 187 and 188 of, and Schedules 14 and 16 to, the Housing and Planning Act 2016 (c. 22).
Section 4 was amended by section 184 and 185 of, and paragraph 2 of Schedule 18 to, the Housing and Planning Act 2016.
Section 152 was amended by S.I. 2009/1307.
Section 13 was amended by sections 62(3) and 139 of, and paragraphs 27 and 28 of Schedule 13, and Part 3 of Schedule 23, to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).
2008 c. 29. Section 125 was amended by paragraph 17, Schedule 16 of the Housing and Planning Act 2016 (c. 22).