The A428 Black Cat to Caxton Gibbet Development Consent Order 2022

PART 1 E+W PRELIMINARY

Citation and commencement E+W

1.  This Order may be cited as the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 and comes into force on 8th September 2022.

Commencement Information

I1 Art. 1 in force at 8.9.2022, see art. 1

Interpretation E+W

2.—(1) In this Order except where provided otherwise—

“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 Compulsory Purchase (Vesting Declarations) Act 1981(4);

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

“the 1990 Act” means the Town and Country Planning Act 1990(6);

“the 1991 Act” means the New Roads and Street Works Act 1991(7);

“the 2008 Act” means the Planning Act 2008(8);

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

“advanced works permission” means the planning permission in respect of land to the West of Hills Farm, Station Road, Tempsford SG19 2BP for archaeological excavation and associated engineering works granted by Central Bedfordshire Council on 8th April 2021, with reference 20/04185/FULL;

“apparatus” has the same meaning as in Part 3 of the 1991 Act;

“authorised development” means the development and associated development described in Schedule 1 (authorised development), and any other development authorised by this Order, which is development within the meaning of section 32 (meaning of development) of the 2008 Act;

“book of reference” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the book of reference for the purposes of this Order;

“bridleway” has the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

“bridlepath” means a way constituting or comprised in a highway over which the public have a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988), on foot and on horseback or leading a horse, but no other right of way;

“building” includes any structure or erection or any part of a building, structure or erection;

“Cadent” means Cadent Gas Limited (company number 10080864), whose registered office is at Cadent, Pilot Way, Ansty, Coventry, England, CV7 9JU;

“carriageway” has the same meaning as in section 329(1) of the 1980 Act;

“classification of road plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the classification of road plans for the purposes of this Order;

“commence” means beginning to carry out any material operation (as defined in section 56(4)(9) of the 1990 Act) forming part of the authorised development other than any operations consisting of pre-commencement works, and “commencement” is to be construed accordingly;

“Crown land plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the Crown land plans for the purposes of this Order;

“cycle track” has the same meaning as in section 329(1)(10) of the 1980 Act and for the purposes of this Order includes a right of way on foot;

“de-trunking plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the de-trunking plans 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,

and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003(11);

“engineering section drawings” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the engineering section drawings by the Secretary of State for the purposes of this Order;

“environmental masterplan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the environmental masterplan for the purposes of this Order;

“environmental statement” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the environmental statement by the Secretary of State for the purposes of this Order;

“footpath” and “footway” have the same meaning as in section 329(1) of the 1980 Act;

“general arrangement plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the general arrangement plans for the purposes of this Order;

“habitats plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the habitats map for the purposes of this Order;

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

“land plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the land plans by the Secretary of State for the purposes of this Order;

“land adjacent to the Order limits” means any land outside but adjacent to the Order limits the use of which is reasonably necessary to construct the authorised development or any section or part of the authorised development;

“limits of deviation” means the limits of deviation referred to in article 8 (limits of deviation);

“maintain” includes, in relation any part of the authorised development, to inspect, repair, adjust, alter, improve, landscape, preserve, remove, reconstruct, refurbish or replace, provided such works do not give rise to any materially new or materially different environmental effects to those identified in the environmental statement and any derivative of “maintain” is to be construed accordingly;

“new dual carriageway” means a new 10 mile (16km) dual 2-lane carriageway from the Black Cat junction to the Caxton Gibbet junction as shown on the works plans, to be known as the A421, and comprised within the authorised development;

“Order land” means the land shown on the land plans which is within the limits of land to be acquired or used permanently or temporarily, and described in the book of reference;

“the Order limits” means the limits of land to be acquired permanently or used temporarily as shown on the land plans, and the limits of land within which the authorised development, as shown on the works plans, may be carried out;

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

“permanent speed limit plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the permanent speed limit plans for the purposes of this Order;

“pre-commencement work” means;

(a)

archaeological investigations and mitigation works;

(b)

environmental surveys;

(c)

pre-construction mitigation works;

(d)

investigations for the purpose of assessing and monitoring ground conditions and levels;

(e)

remedial work in respect of any contamination or other adverse ground conditions;

(f)

erection of any temporary means of enclosure;

(g)

temporary hard standing;

(h)

receipt and erection of construction plant and equipment;

(i)

diversion and laying of underground apparatus and utilities;

(j)

protection works comprising utilities protection works or fencing and protection slabs;

(k)

demolition;

(l)

site clearance;

(m)

construction compound set up; and

(n)

the temporary display of site notices or advertisements;

“the relevant local highway authority” means, the local highway authority in whose area the highway in question lies;

“relevant planning authority” means in any given provision of this Order, the planning authority for the land to which the provision relates;

“special road” means a highway which is a special road in accordance with section 16(13) (general provisions as to special roads) of the 1980 Act or by virtue of an order granting development consent;

“statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land) of the 2008 Act;

“street” means a street within the meaning of section 48(14) (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and 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;

“streets, rights of way and access plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the streets, rights of way and access plans by the Secretary of State for the purposes of this Order;

“traffic authority” has the same meaning as in section 121A(15) (traffic authorities) of the 1984 Act;

“traffic regulation measures plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the traffic regulation measures plans by the Secretary of State for the purposes of this Order;

“tree constraints plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the tree constraints plan by the Secretary of State for the purposes of this Order;

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

“trunk road” means a highway which is a trunk road by virtue of—

(a)

section 10(16) (general provision as to trunk roads) or section 19(1)(17) (certain special roads and other highways to become trunk roads) of the 1980 Act;

(b)

an order made or direction given under section 10 of that Act; or

(c)

an order granting development consent; or

(d)

any other enactment;

“undertaker” means National Highways Limited, company number 09346363, whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;

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

“works plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the works plans by the Secretary of State 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 airspace above its surface and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or is otherwise comprised in the Order land.

(3) References in this Order to the creation and acquisition of rights over land include references to rights to oblige a party having an interest in land to grant those rights referenced in the Order, at the direction of the undertaker, either—

(a) to an affected person directly, where that affected person’s land or rights over land have been adversely affected by this Order, and, where that is the case, the rights referenced in the Order are to be granted for the benefit of the land in which that affected person has an interest at the time of the making of this Order; or

(b) to any statutory undertaker for the purposes of their undertaking.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

(5) For the purposes of this Order, all areas described in square metres in the book of reference are approximate.

(6) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the relevant plans.

(7) References in this Order to numbered works are references to the works as numbered in Part 1 of Schedule 1 (authorised development).

Commencement Information

I2 Art. 2 in force at 8.9.2022, see art. 1

Disapplication of legislative provisions E+W

3.—(1) The provisions of the Neighbourhood Planning Act 2017(18) insofar as they relate to temporary possession of land under articles 37 (temporary use of land for carrying out the authorised development) and 38 (temporary use of land for maintaining the authorised development) do not apply in relation to the construction of work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within the maintenance period defined in article 38(13), any maintenance of any part of the authorised development.

(2) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development—

(a) regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(19) in relation to the carrying on of a flood risk activity;

(b) the provisions of any byelaws made under, or having effect as if made under, paragraph 5, 6 or 6A of Schedule 25 (byelaw making powers of the appropriate agency) to the Water Resources Act 1991(20);

(c) section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991(21);

(d) section 32(22) (variation of awards) of the Land Drainage Act 1991;

(e) section 15 (temporary closure of recreational waterways) of the Anglian Water Authority Act 1977(23);

(f) Part 11 (Community Infrastructure Levy) of the 2008 Act; and

(g) the provisions of any byelaws made under section 66(24) (powers to make byelaws) of the Land Drainage Act 1991.

(3) In paragraph (2)(a) “flood risk activity” has the meaning given in the Environmental Permitting (England and Wales) Regulations 2016.

Commencement Information

I3 Art. 3 in force at 8.9.2022, see art. 1

PART 2 E+W PRINCIPAL POWERS

Development consent etc. granted by the Order E+W

4.—(1) Subject to the provisions of this Order including the requirements in Schedule 2 (requirements), the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

(2) Any enactment applying to land within the Order limits or land adjacent to the Order limits has effect subject to the provisions of this Order.

Commencement Information

I4 Art. 4 in force at 8.9.2022, see art. 1

Maintenance of authorised development E+W

5.  The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.

Commencement Information

I5 Art. 5 in force at 8.9.2022, see art. 1

Application of the 1990 Act E+W

6.—(1) This article applies where the Order land is used for the temporary construction works.

(2) Where this article applies, section 57(2) of the 1990 Act (planning permission required for development) applies as if the development consent granted by this Order were planning permission granted for a limited period.

(3) In this article, “the temporary construction works” means works within the proposed multiple purpose construction areas, the proposed soil storage areas, the proposed site compound areas and the proposed borrow land areas as shown on the general arrangement plans.

Commencement Information

I6 Art. 6 in force at 8.9.2022, see art. 1

Planning permission E+W

7.—(1) If planning permission is issued pursuant to the 1990 Act for development any part of which is within the Order limits following the publication of this Order that is—

(a) not itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or

(b) required to complete or enable the construction, use or operation of any part of the development authorised by this Order,

then the carrying out, use or operation of such development under the terms of the planning permission does not constitute a breach of the terms of this Order.

(2) Anything done by the undertaker in accordance with the terms of this Order does not constitute a breach of any planning permission that is issued pursuant to the 1990 Act.

Commencement Information

I7 Art. 7 in force at 8.9.2022, see art. 1

Limits of deviation E+W

8.—(1) In carrying out the authorised development the undertaker may, so far as the undertaker considers it necessary or convenient—

(a) deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans;

(b) deviate laterally from the routes shown on the streets, rights of way and access plans to the extent of the limits of deviation shown on those plans; and

(c) deviate vertically from the levels of the authorised development shown on the engineering section drawings, to a maximum of 1 metre upwards or 1 metre downwards.

(2) The maximum limits of deviation set out in paragraph (1) do not apply where it is demonstrated by the undertaker to the Secretary of State’s satisfaction and the Secretary of State, following consultation with the relevant planning authority and, in respect of the authorised development comprising highways other than a special road or a trunk road, the relevant local highway authority, certifies accordingly that a deviation in excess of these limits would not give rise to any materially new or materially different environmental effects from those reported in the environmental statement.

Commencement Information

I8 Art. 8 in force at 8.9.2022, see art. 1

Benefit of Order E+W

9.—(1) Subject to article 10 (consent to transfer benefit of Order) and paragraph (2), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.

(2) Paragraph (1) does not apply to the works for which the consent is granted by this Order for the express benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

Commencement Information

I9 Art. 9 in force at 8.9.2022, see art. 1

Consent to transfer benefit of Order E+W

10.—(1)  [F1 Subject to paragraphs (2) and (3),] the undertaker may—

(a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee;

(b) grant to another person (“the grantee”) for a period agreed between the undertaker and the grantee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed.

(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, include references to the transferee or the grantee.

(3) The consent of the Secretary of State is required for a transfer or a grant under this article, except where the transfer or grant is made to—

(a) National Grid Gas Plc (company number 2006000), whose registered office is at 1-3 Strand, London WC2N 5EH for the purposes of undertaking Work No. 41;

(b) Cadent Gas Limited (company number 10080864), whose registered office is at Cadent, Pilot Way, Anstey, Coventry CV7 9JU for the purposes of undertaking Work No. 51;

(c) Exolum Pipeline System Ltd (company number 09497223), whose registered office is at 1st Floor 55 King William Street, London EC4R 9AD for the purposes of undertaking Work No. 38;

(d) AWG Group Limited (company number 02366618), whose registered office is at Lancaster House Lancaster Way, Ermine Business Park, Huntingdon, Cambridgeshire, PE29 6XU for the purposes of undertaking Work Nos. 19, 28, 44, 60, 61a, 61b, 62 and 66;

(e) South Staffordshire Water PLC (company number 02662742), whose registered office is at Green Lane, Walsall, West Midlands, WS2 7PD for the purposes of undertaking Work Nos. 100, 103 and 107;

(f) UK Power Networks (Operations) Limited (company number 03870728), whose registered office is at Newington House, 237 Southwark Bridge Road, London SE1 6NP for the purposes of undertaking Work Nos. 6, 8, 27, 32, 47, 49, 52, 56, 58, 63, 67, 69, 69A, 69B, 82, 99 and 110;

(g) Openreach Limited (company number 10690039), whose registered office is at Kelvin House, 123 Judd Street, London WC1H 9NP for the purposes of undertaking Work Nos. 9, 20, 42, 65, 81, 90, 96, 97, 104 and 104a;

(h) Virgin Media Limited (company number 02591237) whose registered office is at 500 Brook Drive, Reading RG2 6UU for the purposes of undertaking Work Nos. 42, 81, 97, 104 and 104b; and

(i) Vodafone Limited (company number 01471587), whose registered office is at Vodafone House, The Connection, Newbury, Berkshire RG14 2FN for the purposes of undertaking Work No. 42, 81, 97 and 104.

Textual Amendments

F1 Words in art. 10(1) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I10 Art. 10 in force at 8.9.2022, see art. 1

PART 3 E+W STREETS

Application of the 1991 Act E+W

11.—(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 relevant local highway authority, might have been carried out in exercise of the powers conferred by section 64(25) (dual carriageways and roundabouts) of the 1980 Act or section 184(26) (vehicle crossings over footways and verges) of that Act.

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

(3) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers of this Order—

section 56(27) (power to give directions as to timing of street works);

section 56A(28) (power to give directions as to placing of apparatus);

section 58(29) (restrictions following substantial road works);

section 58A(30) (restriction on works following substantial street works);

section 73A(31) (power to require undertaker to re-surface street);

section 73B(32) (power to specify timing etc. of re-surfacing);

section 73C(33) (materials, workmanship and standard of re-surfacing);

section 78A(34) (contributions to costs of re-surfacing by undertaker); and

Schedule 3A(35) (restriction on works following substantial street works).

(4) The provisions of the 1991 Act mentioned in paragraph (5) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to any restriction on the use, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 16 (temporary alteration, [F2 diversion,] prohibition and restriction of use of streets) whether or not the restriction on the use, alteration or diversion constitutes street works within the meaning of that Act.

(5) The provisions of the 1991 Act(36) referred to in paragraph (4) are—

section 54(37) (advance notice of certain works), subject to paragraph (6);

section 55(38) (notice of starting date of works), subject to paragraph (6);

section 57(39) (notice of emergency works);

section 59(40) (general duty of street authority to co-ordinate works);

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

section 68 (facilities to be afforded to street authority);

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

section 75(41) (inspection fees);

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.

(6) Sections 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a restriction of use, alteration or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 12 (construction and maintenance of new, altered or diverted streets and other structures)—

(a) affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act;

(b) means the undertaker is by reason of any duty under that article to maintain a street to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

(c) has effect in relation to street works as respects which the provisions of Part 3 of the 1991 Act apply.

Textual Amendments

F2 Word in art. 11(4) inserted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I11 Art. 11 in force at 8.9.2022, see art. 1

Construction and maintenance of new, altered or diverted streets and other structures E+W

12.—(1) Subject to paragraphs (9) to (13), any highway (other than a special road or a trunk road) to be constructed under this Order must be completed to the reasonable satisfaction of the relevant local highway authority.

(2) The reasonable satisfaction of the relevant local highway authority under paragraph (1) is to be signified by the issue by the local highway authority of a certificate to that effect.

(3) Unless otherwise agreed in writing with the relevant local highway authority, the highway within the boundary specified in the certificate issued under paragraph (2) (including any culverts or other structures laid under it) must be maintained by and at the expense of the relevant local highway authority from the date of issue of the certificate.

(4) Subject to paragraphs (9) to (13), where a highway (other than a special road or a trunk road) is altered or diverted under this Order, the altered or diverted part of the highway must be completed to the reasonable satisfaction of the relevant local highway authority.

(5) The reasonable satisfaction of the local highway authority under paragraph (4) is to be signified by the issue by the local highway authority of a certificate to that effect.

(6) Unless otherwise agreed in writing with the relevant local highway authority, [F3 that part of the highway within the boundary specified in the certificate issued under paragraph (5)] (including any culverts or other structures laid under it) must be maintained by and at the expense of the relevant local highway authority from date of issue of the certificate.

(7) Where a highway is de-trunked under this Order—

(a) section 265(42) (transfer of property and liabilities upon a highway becoming or ceasing to be a trunk road) of the 1980 Act applies in respect of that highway; and

(b) any alterations to that highway undertaken under powers conferred by this Order prior to or in connection with that de-trunking must, unless otherwise agreed in writing with the relevant local highway authority, be maintained by and at the expense of the relevant local highway authority from the date of de-trunking.

(8) In the case of a bridge constructed under this Order to carry a highway (other than a special road or a trunk road) over a special road or trunk road, the highway surface (being those elements over the waterproofing membrane) must be maintained by and at the expense of the relevant local highway authority and the remainder of the bridge, including the waterproofing membrane and any culverts or other structures laid under it, must be maintained by and at the expense of the undertaker.

(9) In the case of a bridge constructed under this Order to carry a special road or a trunk road, the highway surface (being those elements over the waterproofing membrane) and the remainder of the bridge must be maintained by and at the expense of the undertaker.

(10) In the case of a bridge constructed under this Order to carry a private right of way over a special road or trunk road, the bridge must be maintained by and at the expense of the undertaker.

(11) In the case of a bridge constructed under this Order to carry a public right of way, the surface of the bridge (being those elements over the waterproofing membrane) must be maintained by and at the expense of the relevant local highway authority and the structure of the bridge must be maintained by and at the expense of the undertaker.

(12) In the case of a bridge constructed under this Order to carry a shared public right of way and private access track over a special road or trunk road, the bridge must be maintained by and at the expense of the undertaker.

(13) Where a street which is not and is not intended to be a public highway is constructed, altered or diverted under this Order, the street (or part of the street as the case may be) must, when completed to the reasonable satisfaction of the street authority and unless otherwise agreed in writing with the street authority, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(14) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(15) For the purposes of a defence under paragraph (14), the court must in particular have regard to the following matters—

(a) the character of the street and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a street of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the street;

(d) whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e) where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given the competent person proper instructions with regard to the maintenance of the street and the competent person had carried out those instructions.

Textual Amendments

F3 Words in art. 12(6) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I12 Art. 12 in force at 8.9.2022, see art. 1

Classification of roads, etc. E+W

13.—(1) On the date on which each of the roads described in Part 1 (trunk roads) of Schedule 3 (classification of roads, etc.) are completed and open for traffic, it is to become a trunk road as if it had become so by virtue of an order under section 10(2)(43) (general provision as to trunk roads) of the 1980 Act specifying that date as the date on which they were to become trunk roads.

(2) On the date on which each of the roads described in Part 2 (classified roads) of Schedule 3 are completed and open for traffic, it is to become a classified road for the purpose of any enactment or instrument which refers to highways classified as classified roads as if such classification had been made under section 12(3) (general provision as to principal and classified roads) of the 1980 Act.

(3) On the date on which each of the roads described in Part 3 (unclassified roads) of Schedule 3 are completed and open for traffic, it is to become an unclassified road for the purpose of any enactment or instrument which refers to unclassified roads.

(4) On and after the date on which each of the roads specified in Part 4 (speed limits) of Schedule 3 are open for traffic, no person is to drive any motor vehicle at a speed exceeding the limit in miles per hour specified in column (3) of that Part along any lengths of that road identified in the corresponding row of column (2) of that Part.

(5) Subject to article 19 (clearways, prohibitions and restrictions), on and after a date determined by the undertaker, the restrictions specified in column (3) of Part 5 (traffic regulation measures (clearways and prohibitions)) of Schedule 3 are to apply to the lengths of road identified in the corresponding row of column (2) of that Part.

(6) On a date to be determined by the undertaker, the orders specified in column (3) of Part 6 (revocations and variations of existing traffic regulation orders) of Schedule 3 are to be varied or revoked as specified in the corresponding row of column (4) of that Part in respect of the lengths of roads specified in the corresponding row of column (2) of that Part.

(7) Unless otherwise agreed in writing with the relevant local highway authority, the footpaths, cycle tracks, footways, bridlepaths and bridleways set out in Part 7 (footpaths, cycle tracks, footways, bridlepaths and bridleways) of Schedule 3 and identified on the streets, rights of way and access plans are, subject to article 9 (limits of deviation), to be constructed by the undertaker in the specified locations and open for use on and after the date on which the last of the roads described in Parts 1 to 3 of Schedule 3 (classification of roads etc.) is completed and open for traffic or in each case on and after such earlier date as may be required pursuant to article 18(2)(a).

(8) On a date or dates to be determined by the undertaker, the roads described in Part 8 (roads to be de-trunked) of Schedule 3 are to cease to be trunk roads as if they had ceased to be trunk roads by virtue of an order made under section 10(2) of the 1980 Act specifying that date or date as the date or dates on which they were to cease to be trunk roads.

(9) The undertaker may only make a determination for the purposes of paragraph (8) with the consent of the Secretary of State, following consultation with the relevant local highway authority as to the date and as to whether the highway to be de-trunked is of a reasonably satisfactory standard for use as a local highway.

(10) The application of paragraphs (1) to (9) may be varied or revoked by any instrument made under any enactment which provides for the variation or revocation of such matters.

(11) Subject to paragraph (12) the undertaker may vary the classification of the roads, or any part of those roads, provided for in paragraphs (1), (2) and (3) and such variation may provide for any trunk road comprised in the authorised development and referred to in paragraph (1) to be classified as a special road.

(12) The undertaker must not exercise the powers conferred by paragraph (11) unless the undertaker has—

(a) given not less than four weeks’ notice in writing of the undertaker’s intention to do so to the chief officer of police and to the relevant local highway authority in whose area the road is situated; and

(b) published a notice, declaring the date on which that road or part of it is to be classified, not less than seven days before that date, in at least one local newspaper circulating in the area in which the road or, as the case may be, the relevant part of it is situated and in the London Gazette.

(13) Before exercising the powers conferred by paragraph (11) the undertaker must consult such persons as the undertaker considers necessary and appropriate and must take into consideration any representations made to the undertaker by any such person.

(14) Any roads classified as a special road in accordance with paragraph (11) are, on and from the date on which they are so classified, to be—

(a) classified as special roads for the purpose of any enactment or instrument which refers to highways classified as special roads; and

(b) provided for the use of traffic of Classes I and II(44) of the classes of traffic set out in Schedule 4 (classes of traffic for purposes of special roads) to the 1980 Act.

(15) The restrictions provided for in paragraph (5) do not apply to an authorised vehicle where the vehicle is excepted from the restrictions in column (3) of Part 5 of Schedule 3.

(16) In paragraph (15), “authorised vehicle” means a vehicle specified by the undertaker from time to time.

(17) No later than the expiry of the period of 12 weeks beginning with the day on which the relevant local highway authority becomes responsible for the maintenance of a footpath, cycle track, footway, bridlepath or bridleway referred to in paragraph (7), the undertaker must provide the relevant local highway authority with material specifying the location of the completed footpath, cycle track, footway, bridlepath or bridleway.

Commencement Information

I13 Art. 13 in force at 8.9.2022, see art. 1

Power to alter layout etc. of streets E+W

14.—(1) Subject to paragraph (3), the undertaker may, for the purposes of constructing and maintaining the authorised development, alter the layout of any street within the Order limits and the layout of any street having a junction with such a street; and, without limitation on the scope of this paragraph, the undertaker may—

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

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

(c) reduce the width of the carriageway of the street; and

(d) make and maintain passing places.

(2) The undertaker must restore any street that has been temporarily altered under this article to the reasonable satisfaction of the street authority.

(3) The powers conferred by paragraph (1)—

(a) are exercisable on the giving of not less than 42 days’ notice to the street authority; and

(b) are not to be exercised without the consent of the street authority where that authority is a public authority.

(4) If a street authority which receives an application for consent under paragraph (3) fails to notify the undertaker of its decision before the later of—

(a) the end of the period of 28 days beginning with the date on which the application was made; or

(b) if further information is reasonably requested by the street authority during the period of 28 days beginning with the date on which the application was made, the end of the period of 14 days beginning with the date on which the further information was provided to the street authority,

it is deemed to have granted consent.

(5) Paragraphs (2), (3) and (4) do not apply where the undertaker is the street authority for a street in which the works are carried out.

Commencement Information

I14 Art. 14 in force at 8.9.2022, see art. 1

Street works E+W

15.—(1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets as are within the Order limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street or carry out works to strengthen or repair the carriageway;

(c) remove or use all earth and materials in or under the street;

(d) place and keep apparatus in or under the street;

(e) maintain, renew or alter apparatus in the street or change its position;

(f) demolish, remove, replace and relocate any street furniture;

(g) execute any works to provide or improve sight lines;

(h) execute and maintain any works to provide hard and soft landscaping;

(i) carry out re-lining and placement of road markings;

(j) remove and install temporary and permanent signage; and

(k) execute any works required for, or incidental to, any works referred to in paragraphs (a) to (j).

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

Commencement Information

I15 Art. 15 in force at 8.9.2022, see art. 1

Temporary alteration, diversion, prohibition and restriction of the use of streets E+W

16.—(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily alter, divert, prohibit or restrict the use of any street and may for any reasonable time—

(a) divert the traffic from the street; and

(b) subject to paragraph (3), prevent all persons from passing along the street.

(2) Without limitation on the scope of paragraph (1), the undertaker may use any street where the use has been temporarily prohibited or restricted under the powers conferred by this article, and within the Order limits, as a temporary working site.

(3) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary alteration, diversion, prohibition or restriction of a street under this article if there would otherwise be no such access.

(4) The undertaker must not temporarily alter, divert, prohibit or restrict the use of any street for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent but such consent must not be unreasonably withheld or delayed.

(5) Any person who suffers loss by the temporary alteration, diversion, prohibition or restriction of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(6) If a street authority which receives an application for consent under paragraph (4) fails to notify the undertaker of its decision before the later of—

(a) the end of the period of 28 days beginning with the date on which the application was made; or

(b) if further information is reasonably requested by the street authority during the period of 28 days beginning with the date on which the application was made, the end of the period of 14 days beginning with the date on which the further information was provided to the street authority,

it is deemed to have granted consent.

Commencement Information

I16 Art. 16 in force at 8.9.2022, see art. 1

Permanent stopping up and restriction of use of streets and private means of access E+W

17.—(1) Subject to the provisions of this article, the undertaker may, in connection with the construction of the authorised development, stop up each of the streets and private means of access shown on the streets, rights of way and access plans and specified in columns (1) and (2) of Parts 1, 2, 3 and 4 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to the extent specified and described in column (3) of those Parts of that Schedule.

(2) No street or private means of access specified in columns (1) and (2) of Parts 2 and 3 of Schedule 4 (being a street or private means of access to be stopped up for which a substitute is to be provided) is to be wholly or partly stopped up under this article unless—

(a) the new street or private means of access to be constructed and substituted for it, which is specified in column (4) of those Parts of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

(b) a temporary alternative route for the passage of such traffic as could have used the street or private means of access to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street or private means of access until the completion and opening of the new street or private means of access in accordance with sub-paragraph (a).

(3) No street or private means of access specified in columns (1) and (2) of Parts 1 and 4 of Schedule 4 (being a street or private means of access to be stopped up for which no substitute is to be provided) is to be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the land which abuts on either side of the street or private means of access to be stopped up.

(4) The condition referred to in paragraph (3) is that—

(a) the undertaker is in possession of the land; or

(b) there is no right of access to the land from the street or private means of access concerned; or

(c) there is a reasonably convenient access to the land otherwise than from the street or private means of access concerned; or

(d) the owners and occupiers of the land have agreed to the stopping up.

(5) Where a street or private means of access has been stopped up under this article—

(a) all rights of way over or along the street or private means of access so stopped up are extinguished; and

(b) the undertaker may appropriate and use for the purposes of the authorised development so much of the site of the street or private means of access as is bounded on both sides by land owned by the undertaker.

(6) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(7) This article is subject to article 40 (apparatus and rights of statutory undertakers in stopped up streets).

Commencement Information

I17 Art. 17 in force at 8.9.2022, see art. 1

Access to works E+W

18.  The undertaker may, for the purposes of the authorised development, form and lay out means of access, or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

Commencement Information

I18 Art. 18 in force at 8.9.2022, see art. 1

Clearways, prohibitions and restrictions E+W

19.—(1) On and after such day as the undertaker may determine, except as provided in paragraph (2), no person is to cause or permit any vehicle to wait on any part of the lengths of road described in column (2) of Part 5 (traffic regulation measures (clearways and prohibitions)) of Schedule 3 (classification of roads, etc.) where it is identified in the corresponding row of column (3) of that Part that such lengths of road are to become a clearway, except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(2) Nothing in paragraph (1) applies—

(a) to render it unlawful to cause or permit a vehicle to wait on any part of a road, for so long as may be necessary to enable that vehicle to be used in connection with—

(i) the removal of any obstruction to traffic;

(ii) the maintenance, improvement, reconstruction or operation of the road;

(iii) the laying, erection, inspection, maintenance, alteration, repair, renewal or removal in or near the road of any sewer, main pipe, conduit, wire, cable, or other apparatus for the supply of gas, water, electricity or any electronic communications apparatus as defined in Schedule 3A (the electronic communications code) to the Communications Act 2003(45); or

(iv) any building operation or demolition;

(b) in relation to a vehicle being used—

(i) for police, ambulance, fire and rescue authority or traffic officer purposes;

(ii) in the service of a local authority, safety camera partnership or Driver and Vehicle Standards Agency in pursuance of statutory powers or duties;

(iii) in the service of a water or sewerage undertaker within the meaning of the Water Industry Act 1991(46); or

(iv) by a universal service provider for the purposes of providing a universal postal service as defined by the Postal Service Act 2000(47); or

(c) in relation to a vehicle waiting when the person in control of it is—

(i) required by law to stop;

(ii) obliged to stop in order to avoid an accident; or

(iii) prevented from proceeding by circumstances outside the person’s control.

(3) No person is to cause or permit any vehicle to wait on any part of the roads described in paragraph (1) for the purposes of selling, or dispensing of, goods from that vehicle, unless the goods are immediately delivered at, or taken into, premises adjacent to the land on which the vehicle stood when the goods were sold or dispensed.

(4) Paragraphs (1), (2), and (3) have effect as if made by order under the 1984 Act, and their application may be varied or revoked by an order made under that Act or any other enactment which provides for the variation or revocation of such orders.

(5) In this article, “traffic officer” means an individual designated under section 2 (designation of traffic officers) of the Traffic Management Act 2004(48).

Commencement Information

I19 Art. 19 in force at 8.9.2022, see art. 1

PART 4 E+W SUPPLEMENTAL POWERS

Discharge of water E+W

20.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out, maintenance or use 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) Any dispute arising from the making of connections to or use of a public sewer or drain by the undertaker under paragraph (1) 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(49).

(3) 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.

(4) 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; and

(b) where that person has been given the opportunity to supervise the making of the opening.

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

(6) Subject to article 3(2)(a) (disapplication of legislative provisions), nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(50).

(7) In this article—

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

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(51) have the same meaning as in that Act.

(8) If a person who receives an application for consent under paragraph (3) or approval under paragraph (4) fails to notify the undertaker of a decision within 28 days of receiving an application, that person is deemed to have granted consent or given approval, as the case may be.

Commencement Information

I20 Art. 20 in force at 8.9.2022, see art. 1

Protective work to buildings E+W

21.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building 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 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 land 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 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 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 50 (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 relieves the undertaker from any liability to pay compensation under section 152(52) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) Section 13(53) (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto 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(54) (compulsory acquisition provisions) of the 2008 Act.

(11) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 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.

Commencement Information

I21 Art. 21 in force at 8.9.2022, see art. 1

Authority to survey and investigate the land E+W

22.—(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 (including any watercourses, groundwater, static water bodies or vegetation on the land);

(b) without limitation on the scope of sub-paragraph (a), make any excavations or trial holes and boreholes and other investigations in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer, subsoil and groundwater and remove soil and water samples and discharge water from sampling operations on to the land;

(c) without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land, including making excavations or trial holes on the land for such purposes; 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 trial holes and boreholes.

(2) No land may be entered or equipment placed or 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.

(3) The notice required under paragraph (2) must indicate the nature of the survey or investigation that the undertaker intends to carry out.

(4) Any person entering land under this article on behalf of the undertaker—

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

(b) may take into the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes and boreholes.

(5) No trial holes are to 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.

(6) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land pursuant to 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.

(8) If either the highway authority or a street authority which receives an application for consent fails to notify the undertaker of its decision within 28 days of receiving the application for consent—

(a) under paragraph (5)(a) in the case of the highway authority; or

(b) under paragraph (5)(b) in the case of a street authority,

that authority is deemed to have granted consent.

Commencement Information

I22 Art. 22 in force at 8.9.2022, see art. 1

Maintenance of drainage works E+W

23.—(1) Nothing in this Order, or the construction, maintenance or operation of the authorised development under it, affects any responsibility for the maintenance of any works connected with the drainage of land, whether that responsibility is imposed or allocated by or under any enactment, or otherwise agreed in writing between the undertaker and the person responsible.

(2) In this article “drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991(55).

Commencement Information

I23 Art. 23 in force at 8.9.2022, see art. 1

PART 5 E+W POWERS OF ACQUISITION AND POSSESSION OF LAND

Compulsory acquisition of land E+W

24.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or is incidental to it.

(2) This article is [F4 subject to paragraph (3) of article 27] (compulsory acquisition of rights and imposition of restrictive covenants) and article 53 (crown rights).

Textual Amendments

F4 Words in art. 24(2) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I24 Art. 24 in force at 8.9.2022, see art. 1

Compulsory acquisition of land – incorporation of the mineral code E+W

25.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(56) are incorporated into this Order subject to the following modifications—

(a) paragraph 8(3) is not incorporated;

(b) for “the acquiring authority” substitute “the undertaker”; and

(c) for “undertaking” substitute “authorised development”.

Commencement Information

I25 Art. 25 in force at 8.9.2022, see art. 1

Time limit for exercise of authority to acquire land compulsorily E+W

26.—(1) After the end of the period of 5 years beginning on the day on which this Order is made—

(a) no notice to treat is to be served under Part 1 of the 1965 Act; and

(b) no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 34 (application of the 1981 Act).

(2) The authority conferred by article 37 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker from remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Commencement Information

I26 Art. 26 in force at 8.9.2022, see art. 1

Compulsory acquisition of rights and imposition of restrictive covenants E+W

27.—(1) Subject to the following paragraphs of this article, the undertaker may acquire such rights over the Order land, or impose restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 24 (compulsory acquisition of land), by creating them as well as acquiring rights already in existence.

(2) The power to impose restrictive covenants under paragraph (1) is exercisable only in respect of plots specified in column (1) of Schedule 5.

(3) In the case of the Order land specified in column (1) of Schedule 5 (land in which only new rights and restrictive covenants etc. may be acquired) the undertaker’s powers of compulsory acquisition under paragraph (1) are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of restrictive covenants, as may be required for the purposes specified in relation to that land in column (2) of that Schedule and relating to that part of the authorised development specified in column (3) of that Schedule.

(4) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 5 for the benefit of statutory undertakers or for the benefit of any other person—

(a) does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as may be required for the benefit of any other statutory undertaker or any other person; and

(b) must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as are required for the benefit of any other statutory undertaker or any other person.

(5) Subject to section 8(57) (other provisions as to divided land) of, and Schedule 2A(58) (counter-notice requiring purchase of land not in notice to treat), to the 1965 Act, as substituted by paragraph 5(8) of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights), where the undertaker acquires a right over land or the benefit of a restrictive covenant affecting land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.

(6) Schedule 6 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 article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Commencement Information

I27 Art. 27 in force at 8.9.2022, see art. 1

Public rights of way E+W

28.—(1) The public rights of way identified in columns (1) to (3) of Parts 1 and 2 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) and shown on the streets, rights of way and access plans are to be extinguished on the date of the expiry of the notice given under paragraph (2).

(2) The undertaker must erect a site notice at each end of the rights of way to be extinguished specifying a date for its extinguishment, which date must be—

(a) in the case of the public rights of way identified in Part 2 of Schedule 4, no sooner than the date on which the relevant alternative section of public rights of way identified in column (4) of Part 2 of Schedule 4 is open for use by the public: or

(b) in any other case, no sooner than 28 days after the date on which the site notices are erected.

Commencement Information

I28 Art. 28 in force at 8.9.2022, see art. 1

Private rights over land E+W

29.—(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished from whichever is the earlier of—

(a) the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b) the date of entry on the land by the undertaker under section 11(1)(59) (power of entry) of the 1965 Act.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or burden of the restrictive covenant—

(a) as from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the undertaker under section 11(1) (power of entry) of the 1965 Act,

whichever is the earlier.

(3) Subject to the provisions of this article, all private rights over land owned by the undertaker that are within the Order limits are extinguished when any material operation comprised in the authorised development interferes with or breaches those rights.

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

(5) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with the terms of section 152(60) (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(6) This article does not apply in relation to any right to which section 138(61) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 39 (statutory undertakers) applies.

(7) Paragraphs (1) to (4) have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of the land or the acquisition of the rights or the imposition of restrictive covenants over or affecting the land;

(ii) the undertaker’s appropriation of it;

(iii) the undertaker’s entry onto it; or

(iv) the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(8) If any such agreement referred to in paragraph (7)(b)—

(a) is made with a person in or to whom the right is vested or belongs; and

(b) is expressed to have effect also for the benefit of those deriving title from or under that person,

it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(9) References in this article to private rights over land include any trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Commencement Information

I29 Art. 29 in force at 8.9.2022, see art. 1

Power to override easements and other rights E+W

30.—(1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and including restrictions as to the user of land arising by the virtue of a contract.

(3) Where an interest, right or restriction is overridden by paragraph (1), compensation—

(a) is payable under section 7 (measure of compensation in case of severance) or section 10(62) (further provision as to compensation for injurious affection) of the 1965 Act; and

(b) is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where—

(i) the compensation is to be estimated in connection with a purchase under that Act; or

(ii) the injury arises from the execution of works on or use of land acquired under that Act.

(4) Where a person deriving title under the undertaker by whom the land in question was acquired—

(a) is liable to pay compensation by virtue of paragraph (3); and

(b) fails to discharge that liability, the liability is enforceable against the undertaker.

(5) Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1) of this article.

(6) In this article “authorised activity” means the exercise of the powers under the following provisions, in the case where the land in respect of which the power is to be exercised has not been vested in or acquired by the undertaker—

(a) article 22 (authority to survey and investigate the land);

(b) article 42 (felling or lopping of trees and removal of hedgerows).

Commencement Information

I30 Art. 30 in force at 8.9.2022, see art. 1

Disregard of certain interests and improvements E+W

31.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over 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 carried out or improvement or alteration made on the relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised development 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 carried out or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.

Commencement Information

I31 Art. 31 in force at 8.9.2022, see art. 1

Set-off for enhancement in value of retained land E+W

32.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 27 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—

(a) any increase in the value of the land over which the new rights are required; and

(b) any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised development.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2) as if this Order were a local enactment for the purposes of that Act.

Commencement Information

I32 Art. 32 in force at 8.9.2022, see art. 1

Modification of Part 1 of the 1965 Act E+W

33.—(1) Part 1 of the 1965 Act, as applied to this Order by section 125(63) (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4A(1)(64) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(3) In section 11A(65) (powers of entry: further notice of entry)—

(a) in subsection (1)(a), after “land” insert “under that provision”;

(b) in subsection (2), after “land” insert “under that provision”.

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “[F5 article 26 (time limit for exercise of authority to acquire land compulsorily)] of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(5) In Schedule 2A(66) (counter-notice requiring purchase of land not in notice to treat)—

(a) for paragraphs 1(2) and 14(2) substitute—

“(2) But see article 35(3) (acquisition of subsoil or airspace only) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022, which excludes the acquisition of subsoil or airspace only from this Schedule”; and

(b) after paragraph 29, end insert—

“PART 4 E+W INTERPRETATION

30.   In this Schedule, references to entering on and taking possession of land do not include doing so under articles 22 (protective works to buildings), 40 (temporary use of land for carrying out the authorised development) or 41 (temporary use of land for maintaining the authorised development) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022.”.

Textual Amendments

F5 Words in art. 33(4) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I33 Art. 33 in force at 8.9.2022, see art. 1

Application of the 1981 Act E+W

34.—(1) The 1981 Act applies as if this Order were a compulsory purchase order.

(2) The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

(3) In section 1 (application of Act), for subsection 2 substitute—

“(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.”.

(4) In section 5(67) (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A(68) (time limit for general vesting declaration).

(6) In section 5B(1)(69) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(7) In section (6)(70) (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In section 7(71) (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1(72) (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute—

“(2) But see article 35(3) (acquisition of subsoil or airspace only) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022, which excludes the acquisition of subsoil or airspace only from this Schedule.”.

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125(73) (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 33 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Commencement Information

I34 Art. 34 in force at 8.9.2022, see art. 1

Acquisition of subsoil or airspace only E+W

35.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1) of article 24 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over the land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 33 (modification of Part 1 of the 1965 Act));

(b) Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c) section 153(4A)(74) (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(4) Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Commencement Information

I35 Art. 35 in force at 8.9.2022, see art. 1

Rights under or over streets E+W

36.—(1) Provided that it has given the street authority for the street in question at least 28 days’ prior notice (or such shorter period as the street authority may agree), the undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

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

(a) any subway or underground building; or

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

(4) 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 undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is a statutory 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.

Commencement Information

I36 Art. 36 in force at 8.9.2022, see art. 1

Temporary use of land for carrying out the authorised development E+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(75) (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(76);

(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(77) (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(78) (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(79) (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

I37 Art. 37 in force at 8.9.2022, see art. 1

Temporary use of land for maintaining the authorised development E+W

38.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a) enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development;

(b) enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

(c) 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 undertaker to take temporary possession of—

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

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

(3) Not less than 28 days before entering upon 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 explaining the purpose for which entry is taken.

(4) The undertaker is not required to serve notice under paragraph (3) where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; or

(c) the surrounding environment,

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such period of notice as is reasonably practical in the circumstances.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(6) 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.

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (6) does not prevent the undertaker giving up possession of the land.

(8) 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 powers conferred by this article.

(9) Any dispute as to a person’s entitlement to compensation under paragraph (8), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

(10) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right claim in nuisance) of the 2008 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 (8).

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

(12) Section 13(80) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under to 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.

(13) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.

Commencement Information

I38 Art. 38 in force at 8.9.2022, see art. 1

Statutory undertakers E+W

39.—(1) Subject to the provisions of [F6 article 27(3)] (compulsory acquisition of rights and imposition of restrictive covenants), Schedule 9 (protective provisions) and paragraph (2), the undertaker may—

(a) acquire compulsorily, or acquire new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and

(b) extinguish the rights of, or remove or reposition the apparatus belonging to, statutory undertakers over or within the Order land.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

(a) Part 3 (street works in England and Wales) of the 1991 Act; and

(b) article 40 (apparatus and rights of statutory undertakers in stopped up streets).

Textual Amendments

F6 Words in art. 39(1) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I39 Art. 39 in force at 8.9.2022, see art. 1

Apparatus and rights of statutory undertakers in stopped up streets E+W

40.—(1) Where a street is stopped up under article 17 (permanent stopping up and restriction of use of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 17 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or

(b) provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

(a) the execution of the relocation works required in consequence of the stopping up of the street; and

(b) the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

(a) apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this article—

“apparatus” has the same meaning as in Part 3 of the 1991 Act;

“relocation works” means work executed, or apparatus provided, under paragraph (2); and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003(81).

Commencement Information

I40 Art. 40 in force at 8.9.2022, see art. 1

Recovery of costs of new connections E+W

41.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 39 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under [F7 article 38 (temporary use of land for maintaining the authorised development)], any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer; or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 40 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this paragraph—

“public communications provider” has the same meaning as in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003; and

“public utility undertaker” means a gas, water, electricity or sewerage undertaker.

Textual Amendments

F7 Words in art. 41(2) substituted (17.1.2023) by The A428 Black Cat to Caxton Gibbet (Correction) Order 2023 (S.I. 2023/40), art. 1, Sch.

Commencement Information

I41 Art. 41 in force at 8.9.2022, see art. 1

PART 6 E+W OPERATIONS

Felling or lopping of trees and removal of hedgerows E+W

42.—(1) The undertaker may fell or lop any tree (other than a tree subject to a tree preservation order) or shrub, or cut back its roots, within or overhanging land within the Order limits if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

(b) from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must-—

(a) do no unnecessary damage to any tree or shrub;

(b) pay compensation to any person for any loss or damage arising from such activity; and

(c) take steps to avoid a breach of the provisions of the Wildlife and Countryside Act 1981(82) and the Conservation of Habitats and Species Regulations 2017(83).

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2)—

(a) remove any hedgerow described in Part 1 (removal of hedgerows) of Schedule 8 (hedgerows and trees); and

(b) subject to consultation with the relevant planning authority remove any hedgerow within the Order limits that may be identified and that is not otherwise described in Part 1 of Schedule 8.

(5) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997(84) and includes important hedgerows.

Commencement Information

I42 Art. 42 in force at 8.9.2022, see art. 1

Trees subject to tree preservation orders E+W

43.—(1) Subject to paragraph (2), the undertaker may—

(a) fell or lop any tree described in Part 2 (trees subject to tree preservation orders) of Schedule 8, cut back its roots or undertake such other works described in column (2) of that Schedule relating to the relevant part of the authorised development described in column (3) of that Schedule;

(b) fell or lop, or cut back the roots of any other tree within or overhanging land within the Order limits and which is subject to a tree preservation order which was made after 5th February 2018.

(2) The undertaker may only exercise the powers of paragraph (1) if the undertaker reasonably believes it to be necessary to do so to prevent the tree—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

(b) from constituting a danger to persons using the authorised development.

(3) In carrying out any activity authorised by paragraph (1)—

(a) the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity;

(b) the duty contained in section 206(1) (replacement of trees) of the 1990 Act is not to apply although where possible the undertaker must seek to replace any trees which are removed; and

(c) the undertaker must consult the relevant planning authority prior to that activity taking place.

(4) The authority given in paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(5) Any dispute as to a person’s entitlement to compensation under paragraph (3), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Commencement Information

I43 Art. 43 in force at 8.9.2022, see art. 1

PART 7 E+W MISCELLANEOUS AND GENERAL

Application of landlord and tenant law E+W

44.—(1) This article applies to—

(a) any agreement for lease to any person the whole or any part of the authorised development or the right to operate 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) 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

I44 Art. 44 in force at 8.9.2022, see art. 1

Operational land for purposes of the 1990 Act E+W

45.  Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as operational land for the purposes of that Act) of the 1990 Act.

Commencement Information

I45 Art. 45 in force at 8.9.2022, see art. 1

Defence to proceedings in respect of statutory nuisance E+W

46.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990(85) in relation to a nuisance falling within paragraph (g) of section 79(1) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act no order is to be made, and no fine may be imposed, under section 82(2)(86) of that Act if—

(a) the defendant shows that the nuisance—

(i) 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 (prior consent for work on construction sites), of the Control of Pollution Act 1974(87); or

(ii) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or

(b) the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9) (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) of the Control of Pollution Act 1974(88) does not 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

I46 Art. 46 in force at 8.9.2022, see art. 1

Protective provisions E+W

47.  Schedule 9 (protective provisions) has effect.

Commencement Information

I47 Art. 47 in force at 8.9.2022, see art. 1

Certification of documents, etc. E+W

48.—(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents set out in Schedule 10 (documents to be certified) to the Secretary of State for certification as true copies of those plans and documents.

(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make this Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).

(3) 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

I48 Art. 48 in force at 8.9.2022, see art. 1

Service of notices E+W

49.—(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 (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(89) 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 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) the notice or document is 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 7 days of receipt that the recipient requires a paper copy of all or 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.

(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Commencement Information

I49 Art. 49 in force at 8.9.2022, see art. 1

Arbitration E+W

50.—(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) 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 giving notice in writing to the other) by the President of the Institution of Civil Engineers.

(2) Any matter for which the consent or approval of Secretary of State is required under any provision of this Order is not subject to arbitration.

Commencement Information

I50 Art. 50 in force at 8.9.2022, see art. 1

Traffic regulation E+W

51.—(1) This article applies to roads in respect of which the undertaker is not the traffic authority.

(2) Subject to the provisions of this article, and the consent of the traffic authority in whose area the road concerned is situated, which consent must not be unreasonably withheld, the undertaker may, for the purposes of the authorised development—

(a) revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

(b) permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;

(c) authorise the use as a parking place of any road;

(d) make provision as to the direction or priority of vehicular traffic on any road; and

(e) permit or prohibit vehicles, or vehicles of any class, or pedestrians access to any road,

either at all times or at times, on days or during such periods as may be specified by the undertaker.

(3) The power conferred by paragraph (2) may be exercised at any time prior to the expiry of 12 months from the date the last part of the authorised development is first open for public use but subject to paragraph (7) any prohibition, restriction or other provision made under paragraph (2) may have effect both before and after the expiry of that period.

(4) The undertaker must consult the chief officer of police and the traffic authority in whose area the road is situated before complying with the provisions of paragraph (5).

(5) The undertaker must not exercise the powers conferred by paragraph (2) unless the undertaker has—

(a) given not less than—

(i) 12 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect permanently; or

(ii) 4 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect temporarily,

to the chief officer of police and to the traffic authority in whose area the road is situated; and

(b) advertised its intention in such manner as the traffic authority may specify in writing within 28 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(i), or within 7 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(ii).

(6) Any prohibition, restriction or other provision made by the undertaker under paragraph (2)—

(a) has effect as if duly made by, as the case may be—

(i) the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or

(ii) the local authority in whose area the road is situated, as an order under section 32 (power of local authorities to provide parking spaces) of the 1984 Act,

and the instrument by which it is effected may specify savings and exemptions to which the prohibition, restriction or other provision is subject; and

(b) is deemed to be a traffic order for the purposes of Schedule 7 (road traffic contraventions subject to civil enforcement) to the Traffic Management Act 2004(90).

(7) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by the undertaker from time to time by subsequent exercise of the powers conferred by paragraph (2) within a period of 24 months from the date on which the last part of the authorised development is first open for public use.

(8) Before exercising the powers conferred by paragraph (2) the undertaker must consult such persons as the undertaker considers necessary and appropriate and must take into consideration any representations made to the undertaker by any such person.

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

(10) The powers conferred on the undertaker by this article with respect to any road have effect subject to any agreement entered into by the undertaker with any person with an interest in (or who undertakes activities in relation to) premises served by the road.

(11) If the traffic authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraph (2) the traffic authority is deemed to have granted consent.

Commencement Information

I51 Art. 51 in force at 8.9.2022, see art. 1

Removal of human remains E+W

52.—(1) In this article, “ the specified land” means any land within the Order limits.

(2) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Subject to paragraph (12), before any such remains are removed the undertaker must give notice of the intended removal describing the specified land and stating the general effect of the following provisions of this article by—

(a) publishing a notice for two successive weeks in a newspaper circulating in the area of the authorised development; and

(b) displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3), any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a) removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b) removed to, and cremated in, any crematorium,

and that person is to, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question must be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

(a) within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or

(b) such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or

(c) within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or

(d) it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (10) the undertaker must remove the remains and cause them to be reinterred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be reinterred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a) a certificate of re-interment or cremation is to be sent to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b) a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) must be sent by the undertaker to the relevant planning authority.

(12) No notice is required under paragraph (3) before the removal of any human remains where the undertaker is satisfied—

(a) that the remains were interred more than 100 years ago; and

(b) that no relative or personal representative of the deceased is likely to object to the remains being removed in accordance with this article.

(13) In the case of remains in relation to which paragraph (12) applies, the undertaker—

(a) may remove the remains;

(b) must apply for direction from the Secretary of State under paragraph (14) as to their subsequent treatment; and

(c) must deal with the remains in such manner, and subject to such conditions, as the Secretary of State directs.

(14) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(15) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(16) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857(91) does not apply to a removal carried out in accordance with this article.

(17) Section 239 (use and development of burial grounds) of the 1990 Act applies—

(a) in relation to land, other than a right over land, acquired for the purposes of the authorised development (whether or not by agreement), so as to permit use by the undertaker in accordance with the provisions of this Order; and

(b) in relation to a right over land so acquired (whether or not by agreement), or the temporary use of land pursuant to articles 40 (temporary use of land for carrying out the authorised development) or 41 (temporary use of land for maintaining the authorised development), so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order,

and in section 240(1) (provisions supplemental to sections 238 and 239) of the 1990 Act reference to “regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as applicable to land or a right over land acquired under this Order, paragraphs (2) to (15) of this article and in section 240(3) of the 1990 Act reference to a “statutory undertaker” includes the undertaker and reference to “any other enactment” includes this Order.

(18) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950(92) do not apply to the authorised development.

Commencement Information

I52 Art. 52 in force at 8.9.2022, see art. 1

Crown rights E+W

53.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker to take, use, enter upon or in any manner interfere with any land or rights of any description—

(a) belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

(b) belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

(c) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory purchase of any interest in any Crown land (as defined in the 2008 Act) for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.

Commencement Information

I53 Art. 53 in force at 8.9.2022, see art. 1

Works in the River Great Ouse E+W

54.—(1) Subject to the provisions of this article, during the construction of the authorised development the public right of navigation over any part of the River Great Ouse that is situated within the Order limits may be temporarily suspended with the written approval of the Environment Agency, such approval not to be unreasonably withheld.

(2) The undertaker must apply to the Environment Agency for approval under paragraph (1) for such suspension, except in the case of an emergency when the undertaker must give such notice as is reasonably practicable.

(3) For the purposes of paragraph (2), an emergency means a situation that exists that without the temporary suspension of navigation rights will present—

(a) a risk to life or serious injury to one or more persons;

(b) a substantial risk of significant damage to one or more vessels;

(c) a risk of significant or structural damage to a bridge, sluice, sluice gate, lock, flood defence structure, river bank, river control work or drainage work; or

(d) a risk of serious environmental harm,

and it would not be reasonable in the circumstances to require prior approval under this article before suspending the public rights of navigation.

(4) An application for approval under paragraph (2) must provide details of the proposed suspension or periods of suspension, including particulars of—

(a) the commencement date;

(b) the duration; and

(c) the affected area,

and must include an explanation of the need for the proposed suspension or periods of suspension.

(5) The Environment Agency may in relation to any application for approval made under paragraph (2) impose reasonable conditions for any purpose described in paragraph (3).

(6) Conditions imposed under paragraph (5) may include conditions as to—

(a) the limits of any area subject to a temporary suspension of the public right of navigation;

(b) the duration of any temporary suspension;

(c) the means of marking or otherwise providing warning in the River Great Ouse of any area affected by a temporary suspension of the public right of navigation; and

(d) the use by the undertaker of the area subject to any temporary suspension so as not to interfere with any other part of the River Great Ouse or affect its use.

(7) Following an approval of any suspension given by the Environment Agency under this article or determined in accordance with article 50 (arbitration), the undertaker must:

(a) publish a notice in one or more local newspapers circulating in the district in which the River Great Ouse is situated;

(b) publish such notice not less than one month before the powers are to be exercised and state the extent to which, the period during and the purpose for which the use or navigation of the River Great Ouse is to be prohibited, restricted or regulated;

(c) display a copy of such notice in one or more places on or adjacent to the River Great Ouse in such places to bring its contents to the notice of persons using or navigating the waterways.

(8) Subject to paragraph (9), an application for approval under this article is deemed to have been approved if it is neither given nor refused within 28 business days of the Environment Agency receiving the application under paragraph (2).

(9) An approval of the Environment Agency under this article is not deemed to have been approved, if approval within the time limited by paragraph (8) has not been given pending the outcome of any consultation on the approval in question that the Environment Agency is obliged to carry out in the proper exercise of its functions.

Commencement Information

I54 Art. 54 in force at 8.9.2022, see art. 1

The Cadent Diversion Works E+W

55.—(1) If the undertaker implements the advanced works permission and Cadent or the undertaker undertakes the works described in Work No. 51 pursuant to planning permission granted under Part 3 of the 1990 Act then the requirements contained in Part 1 of Schedule 2 will not have effect in so far as they relate to those works unless Cadent or the undertaker serve written notice on the Secretary of State and the relevant planning authority confirming that it will—

(a) cease to rely on planning permission granted under Part 3 of the 1990 Act; and

(b) carry out Work No. 51 under this Order (in accordance with the requirements contained in Part 1 of Schedule 2).

(2) Cadent or the undertaker must not carry out Work No. 51 under this Order unless notice has been served under paragraph (1).

(3) Notwithstanding paragraph (2), the undertaker may exercise any other powers under this Order in respect of Work No. 51.

Commencement Information

I55 Art. 55 in force at 8.9.2022, see art. 1

Use of private roads for construction E+W

56.—(1) The undertaker may use any private road within the Order limits for the passage of persons or vehicles (with or without materials, plant and machinery) for the purposes of, or in connection with, the construction of the authorised development.

(2) The undertaker must compensate the person liable for the repair of a road to which paragraph (1) applies for any loss or damage which that person may suffer by reason of the exercise of the power conferred by paragraph (1).

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of such compensation, is to be determined as though it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Commencement Information

I56 Art. 56 in force at 8.9.2022, see art. 1

Signed by authority of the Secretary of State for Transport

Natasha Kopala

Head of the Transport and Works Act Orders Unit

Department for Transport