Temporary use of land for carrying out the authorised projectE+W+S
28.—(1) The undertaker may, in connection with the carrying out of the authorised project—
(a)enter on and take temporary possession of—
(i)the land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule; and
(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 (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;
(b)remove any buildings, agricultural plant and apparatus, drainage, fences, debris and vegetation from that land;
(c)construct temporary works (including the provision of means of access and footpaths), haul roads, security fencing, bridges, services, signage, structures and buildings on that land;
(d)use the land for the purposes of a working site with access to the working site in connection with the authorised project;
(e)construct any works, or use the land, as specified in relation to that land in column 3 of Schedule 8 (land of which temporary possession may be taken), or any mitigation works;
(f)construct such works on that land as are mentioned in Part 1 of Schedule 1 (authorised development); and
(g)carry out mitigation works required pursuant to the requirements in Part 3 of Schedule 1 (authorised development).
(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.
(3) The undertaker must not remain in possession of any land under this article for longer than reasonably necessary and in any event must 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 project specified in relation to that land in column (3) of Schedule 8 (land of which temporary possession may be taken); or
(b)in the case of land specified in paragraph (1)(a)(ii) after the end of the period of one year beginning with the date of completion of the part of the authorised project for which temporary possession of the land was taken unless the undertaker has, before 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) Unless the undertaker has served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act or otherwise acquired the land or rights over land subject to temporary possession or otherwise agreed with the owners of the land, the undertaker must before giving up possession of land of which temporary possession has been taken under this article, remove all works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—
(a)replace any building, structure, drain or electric line removed under this article;
(b)remove any drainage works installed by the undertaker under this article;
(c)remove any new road surface or other improvements carried out under this article to any street specified in Schedule 2 (streets subject to street works) or any new footpath surface or other enhancements carried out under this article to any footpath or any improvements carried out under this article to any bridge;
(d)remove any fencing or boundary treatments installed by the undertaker under this article to replace or enhance existing fencing or boundary treatments; or
(e)restore the land on which any works have been carried out under paragraph (1)(g) insofar as the works relate to mitigation works identified in the environmental statement or required pursuant to the requirements in Schedule 1.
(5) The undertaker must pay compensation to the owners and occupiers of land 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 any power conferred by this article.
(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, must be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(7) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised project, other than loss or damage for which compensation is payable under paragraph (5).
(8) 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—
(a)acquiring new rights or imposing restrictive covenants over any part of that land under article 21 (compulsory acquisition of rights etc.) to the extent that such land is listed in column (1) of Schedule 6; or
(b)acquiring any part of the subsoil (or rights in the subsoil) of that land under article 25 (acquisition of subsoil only).
(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 of the 1965 Act (refusal to give possession to acquiring authority) 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 of the 2008 Act (application of compulsory acquisition provisions).
(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 8.
(12) Subject to article 43, so much of the special category land as is required for the purposes of exercising the powers pursuant to this article is temporarily discharged from all rights, trusts and incidents to which it was previously subject, so far as their continuance would be inconsistent with the exercise of those powers, and only for such time as any special category land is being used under this article.
(13) At any time where the undertaker has taken temporary possession of any part of the Driffield Navigation under this article, on the starting date specified in the notice given under paragraph (15) and for the duration specified in notice given under paragraph (15), the public right of navigation over that part of the Driffield Navigation is suspended and unenforceable against the Driffield Navigation Trust.
(14) Any person who suffers loss as a result of the suspension of any private right of navigation over the Driffield Navigation under this article is entitled to be paid compensation for such loss by the undertaker, to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
(15) Not later than 28 days prior to the proposed start of any suspension of the public right of navigation over the Driffield Navigation under this article, the undertaker must give written notice to The Driffield Navigation Trust except in the case of an emergency when the undertaker must give such notice as is reasonably practicable.
(16) A notice given under paragraph (15) must provide details of the proposed suspension including particulars of the—
(a)start date;
(b)duration; and
(c)affected area.
(17) Following receipt of a notice given under paragraph (15), The Driffield Navigation Trust must issue a notice to mariners within 14 days, giving the start date and other particulars of the suspension to which the notice relates, and that suspension will take effect on the date specified and as otherwise described in the notice.
Commencement Information
I1Art. 28 in force at 3.8.2023, see art. 1