25.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate it, or as is incidental to it.
(2) This article is subject to article 27 (time limit for exercise of authority to acquire land compulsorily) and paragraph (9) of article 33 (temporary use of land for carrying out the authorised development).
26. Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(1) is incorporated in this Order subject to the modification that for “the acquiring authority” substitute “the undertaker”.
27.—(1) After the end of the period of five years beginning on the day on which this Order comes into force—
(a)no notice to treat may be served under Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act; and
(b)no declaration may be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 30 (application of the 1981 Act).
(2) The authority conferred by article 33 (temporary use of land for carrying out the authorised development) must cease at the end of the period referred to in paragraph (1), save that nothing in this paragraph prevents the undertaker 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.
28.—(1) Subject to the provisions of this article, all private rights and restrictive covenants over land subject to compulsory acquisition under this Order are extinguished—
(a)as from the date of acquisition of the land 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 earliest.
(2) Subject to the provisions of this article, all private rights over land owned by the undertaker that are within the Order limits are extinguished on commencement of any activity authorised by this Order which interferes with or breaches those rights.
(3) Subject to the provisions of this article, all private rights or restrictive covenants 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.
(4) Any person who suffers loss by the extinguishment or suspension of any private right or the imposition of a restrictive covenant under this Order is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(5) This article does not apply in relation to any right or apparatus to which section 138 (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 35 (statutory undertakers) applies.
(6) Paragraphs (1) to (3) have effect subject to—
(a)any notice given by the undertaker before—
(i)the completion of the acquisition of the land or the acquisition or creation of rights over land 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 or restriction in question is vested or belongs.
(7) If any such agreement as is referred to in paragraph (6)(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.
(8) References in this article to private rights over land include any right of way, 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 use of land arising by virtue of a contract, agreement or undertaking having that effect.
29.—(1) Any authorised activity which takes place on land within the Order land (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) In this article “authorised activity” means—
(a)the erection, construction or maintenance of any part of the authorised development;
(b)the exercise of any power authorised by this Order; or
(c)the use of any land within the Order limits (including the temporary use of land).
(3) 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 include restrictions as to the user of land arising by the virtue of a contract.
(4) Subject to article 51 (no double recovery), where an interest, right or restriction is overridden by paragraph (1), unless otherwise agreed, compensation—
(a)is payable under section 7 (measure of compensation in case of severance) or 10 (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.
(5) 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 (4); and
(b)fails to discharge that liability,
the liability is enforceable against the undertaker.
(6) 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.
30.—(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(2) (earliest date for execution of declaration), omit the words from “, and this subsection” to the end.
(5) Omit section 5A(2) (time limit for general vesting declaration).
(6) In section 5B(3) (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 2008 Act, the five year period mentioned in article 27 (time limit for exercise of authority to acquire land compulsorily) of the Boston Alternative Energy Facility Order 2023”.
(7) In section 6 (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 (constructive notice to treat), in subsection (1)(a), omit the words “(as modified by section 4 of the Acquisition of Land Act 1981)”.
(9) In Schedule A1(4) (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—
“(2) But see article 32 (acquisition of subsoil or air-space only) of the Boston Alternative Energy Facility Order 2023, which excludes the acquisition of subsoil only from this Schedule.”.
(10) References to the 1965 Act in the 1981 Act must be construed as references to that Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (as modified by article 31 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.
31.—(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied to this Order by section 125 (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.
(2) In section 4A(1)(5) (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 27 (time limit for exercise of authority to acquire land compulsorily) of the Boston Alternative Energy Facility Order 2023”.
(3) In section 11A(6) (powers of entry: further notices of entry)—
(a)in subsection (1)(a) after “land” insert “under that provision”; and
(b)in subsection (2) after “land” insert “under that provision”.
(4) In section 22(2) (interests omitted from purchase), for “section 4 of this Act” substitute “article 27 (time limit for exercise of authority to acquire land compulsorily) of the Boston Alternative Energy Facility Order 2023”.
(5) In Schedule 2A(7) (counter-notice requiring purchase of land not in notice to treat)—
(a)for paragraphs 1(2) and 14(2) substitute—
“(2) But see article 32(3) (acquisition of subsoil or air-space only) of the Boston Alternative Energy Facility Order 2023, which excludes the acquisition of subsoil only from this Schedule.”; and
(b)after paragraph 29 insert—
30. In this Schedule, references to entering on and taking possession of land do not include doing so under article 22 (protective work to buildings) or article 33 (temporary use of land for carrying out the authorised development) or article 34 (temporary use of land for maintaining the authorised development) of the Boston Alternative Energy Facility Order 2023.”.
32.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or air-space over the land referred to in paragraph (1) of article 25 (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 air-space over land under 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 only—
(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to 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) (reference of objection to Upper Tribunal: general) of the 1990 Act.
(4) Paragraphs (2) and (3) do not apply where the undertaker acquires a cellar, vault, arch, or other construction forming part of a house, building or manufactory.
33.—(1) The undertaker may, in connection with the construction of the authorised development—
(a)enter on and take temporary possession of—
(i)the land specified in column (1) of the table in Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of the table in that Schedule;
(ii)any other Order land in respect of which no notice of entry has been served under section 11 (powers of entry) of the 1965 Act and no declaration has been made under section 4 (execution of declaration) of the 1981 Act (other than a notice of entry or a declaration in connection with the acquisition of rights and/or the imposition of restrictive covenants only);
(b)remove any buildings, apparatus, fences, landscaping, debris and vegetation from that land;
(c)construct temporary works (including the provision of means of access) and buildings on that land; and
(d)construct any works on that land as are mentioned in Schedule 1 (authorised development).
(2) Not less than 14 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.
(3) The undertaker is not required to serve notice under paragraph (2) where the undertaker has identified a potential risk to the safety of—
(a)the authorised development or any of its parts;
(b)the public; and/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.
(4) 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 final commissioning of the authorised development; or
(b)in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of final commissioning of the authorised development unless the undertaker has, before the end of that period, served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act or has otherwise acquired the land subject to temporary possession.
(5) 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 unless otherwise agreed 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; or
(d)remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development.
(6) 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.
(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of compensation, is to be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(8) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (5) does not prevent the undertaker giving up possession of the land.
(9) Subject to article 51 (no double recovery) nothing in this article affects any liability to pay compensation under section 152 (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 (6).
(10) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not precluded from acquiring any part of the subsoil of or airspace over (or rights in the subsoil of or airspace over) under article 32 (acquisition of subsoil or air-space only).
(11) Where the undertaker takes possession of land under this article, the undertaker is not to be required to acquire the land or any interest in it.
(12) 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.
(13) Nothing in this article prevents the taking of temporary possession more than once in relation to any land under paragraph (1).
34.—(1) Subject to paragraph (2), at any time during the maintenance period (as defined in paragraph (11)) relating to any part of the authorised development, the undertaker may—
(a)enter on and take temporary possession of any land within the Order land if possession is reasonably required for the purpose of maintaining the authorised development;
(b)enter on any land within the Order land 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 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.
(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; and/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) 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.
(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation, is to be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(9) Nothing in this article affects any liability to pay compensation under section 10(2) (further provisions as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (7).
(10) Where the undertaker takes possession of land under this article, the undertaker is not to be required to acquire the land or any interest in it.
(11) 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.
(12) In this article “the maintenance period” means the period of 5 years beginning with the date of final commissioning.
35.—(1) Subject to the provisions of Schedule 8 (protective provisions), the undertaker may—
(a)exercise the powers conferred by article 25 (compulsory acquisition of land) in relation to so much of the Order land belonging to statutory undertakers;
(b)extinguish or suspend the rights of or restrictive covenants for the benefit of, and remove or reposition the apparatus belonging to, statutory undertakers on, under, over or within the Order land.
(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which article 36 (apparatus and rights of statutory undertakers in stopped up streets) of this Order applies.
36.—(1) Where a street is stopped up under article 14 (permanent stopping up of streets), 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 13 (temporary closure, alteration, diversion and restriction of use of streets) 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 statutory 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 statutory 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, or 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 statutory 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—
“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 this section 151(1) (interpretation) of the Communications Act 2003(8).
37.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 35 (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 article 35 (statutory undertakers) any person who is—
(a)the owner or occupier of premises the drains of which communicated with the sewer; or
(b)the owner of a private sewer which communicated with that sewer,
is to be 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 36 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 (street works in England and Wales) of the 1991 Act applies.
(4) In this article—
“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(9); and
“public utility undertaker” has the same meaning as in the 1980 Act.
38.—(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 constructed or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.
39.—(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) The 1961 Act has effect, subject to paragraph (1) as if this Order were a local enactment for the purposes of that Act.
Inserted by section 182(2) of the Housing and Planning Act 2016 (c. 22).
Inserted by section 202(2) of the Housing and Planning Act 2016 (c. 22).
Inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016 (c. 22).
Inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).
Inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).
Inserted by Schedule 17(1) paragraph 3 to the Housing and Planning Act 2016 (c. 22).