The A66 Northern Trans-Pennine Development Consent Order 2024

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the A66 Northern Trans-Pennine Development Consent Order 2024 and comes into force on 28th March 2024.

Interpretation

2.—(1) In this Order—

“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 2004 Act” means the Traffic Management Act 2004(8);

“the 2008 Act” means the Planning Act 2008(9);

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

“apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

“authorised development” means the development and associated development described in Schedule 1 (authorised development) or any part of it 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 and, in relation to the authorised development, includes the right provided by section 30 (riding of pedal bicycles on bridleways) of the Countryside Act 1968(10);

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

“byway open to all traffic” has the same meaning as in section 66(1) (interpretation of Part 3) of the Wildlife and Countryside Act 1981(11);

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

“classification of roads plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the classification of roads plans for the purposes of this Order;

“construct” includes execute, place, alter, replace, relay and remove and “construction” is to be construed accordingly;

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

“cycle track” means a way constituting a highway, being a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988(12)) with a right of way on foot;

“cycleway” means a way comprised in a highway, being a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988) with a right of way on foot;

“design principles” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the design principles for the purposes of this Order;

“de-trunking plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the de-trunking plans for the purposes of this Order;

“earthworks” means any embankment or cutting slope required to raise or lower a road from existing ground levels;

“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(13);

“engineering section drawings: cross sections” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the engineering section drawings: cross sections for the purposes of this Order;

“engineering section drawings: plan and profiles” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the engineering section drawings: plan and profiles for the purposes of this Order;

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

“equestrian track” means a way comprised in a highway, being a way over which the public have the following, but no other rights of way, that is to say a right of way on horseback or leading a horse, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988 and a right of way on foot;

“flood risk activity” has the same meaning as in regulation 2 (interpretation: general) of the Environmental Permitting (England and Wales) Regulations 2016(14);

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

“highway”, “highway authority” and “local highway authority” respectively have the same meaning as in section 328 (meaning of “highway”), section 1 (highways authorities: general provision) and section 329(1) of the 1980 Act;

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

“limits of deviation” means limits of deviation referred to in article 7 (limits of deviation);

“maintain” includes inspect, repair, adjust, alter, remove, replace or reconstruct, provided such works do not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement, and any derivative of “maintain” is to be construed accordingly;

“Order land” means the land shown coloured pink and the land shown coloured blue on the land plans, and which is described in the book of reference;

“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(15);

“relevant planning authority” means the local planning authority for the area in which the land to which the relevant provision of this Order applies is situated;

“rights of way and access plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the rights of way and access plans for the purposes of this Order;

“scheme 0102” means M6 Junction 40 to Kemplay Bank;

“scheme 03” means Penrith to Temple Sowerby;

“scheme 0405” means Temple Sowerby to Appleby;

“scheme 06” means Appleby to Brough;

“scheme 07” means Bowes Bypass;

“scheme 08” means Cross Lanes to Rokeby;

“scheme 09” means Stephen Bank to Carkin Moor;

“scheme 11” means A1(M) Junction 53 Scotch Corner;

“special category land plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the special category land plans for the purposes of this Order;

“special road” means a highway which is a special road in accordance with section 16(16) (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(17) (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways;

“street authority”, in relation to a street, has the same meaning as in section 49(18) (the street authority and other relevant authorities) of the 1991 Act;

“traffic authority” has the same meaning as in section 121A(19) (traffic authorities) of the 1984 Act;

“traffic officer” means an individual designated under section 2 (designation of traffic officers) of the 2004 Act;

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

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

“tree preservation order trees location plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the tree preservation order trees location plans for the purposes of this Order;

“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(20) (general provision as to trunk roads) or 19(1)(21) (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;

(c)

an order granting development consent; or

(d)

any other enactment;

“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;

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

“works plans” means the document of that description listed in Schedule 10 and certified by the Secretary of State as the works plans 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) All distances, directions, areas 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.

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

(5) 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 plan to which the reference relates.

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

(7) In this Order, references to materially new or materially different environmental effects in comparison with those reported in the environmental statement are not to be construed so as to include the avoidance, removal or reduction of an assessed adverse environmental effect or a positive environmental effect, or the increase of an assessed positive environmental effect.

Disapplication of legislative provisions

3.—(1) 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, operation or maintenance of the authorised development—

(a) section 28E (duties in relation to sites of scientific interest) of the Wildlife and Countryside Act 1981(22);

(b) section 28H(23) (statutory undertakers, etc.: duty in relation to carrying out operations) of the Wildlife and Countryside Act 1981;

(c) section 80 (notice to local authority of intended demolition) of the Building Act 1984(24);

(d) section 23 (prohibition of obstructions etc. in watercourses) of the Land Drainage Act 1991(25);

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

(f) the provisions of any byelaws made under section 66 (powers to make byelaws)(26) of the Land Drainage Act 1991;

(g) the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6, or 6A of Schedule 25 (byelaw-making powers of the appropriate agency) to the Water Resources Act 1991(27);

(h) regulation 12 (requirement for an environmental permit) of the Environmental Permitting (England & Wales) Regulations 2016(28) in respect of a flood risk activity only; and

(i) the provisions of the Neighbourhood Planning Act 2017(29) in so far as they relate to temporary possession of land under articles 29 (temporary use of land for constructing the authorised development) and 30 (temporary use of land for maintaining the authorised development) of this Order.

(2) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 (meaning of “development”) of the Community Infrastructure Levy Regulations 2010(30) any building comprised in the authorised development is deemed to be—

(a) a building into which people do not normally go; or

(b) a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.

(3) For the purposes of section 9 (requirement of licence for felling) of the Forestry Act 1967(31), any felling comprised in the carrying out of any work or operation required for the purposes of, or in connection with, the construction of the authorised development is deemed to be immediately required for the purpose of carrying out development authorised by planning permission granted under the 1990 Act.

(4) The provisions of the following enactments do not apply in so far as those provisions still in force are incompatible with the exercise by the undertaker of the functions conferred by this Order—

(a) The Eden Valley Railway Act 1858(32);

(b) The Eden Valley Railway Act 1862(33); and

(c) The Midland Railway (Settle to Carlisle) Act 1866(34).

PART 2 WORKS PROVISIONS

Principal powers

Development consent, etc. granted by the Order

4.—(1) Subject to the provisions of this Order the undertaker is granted development consent for the authorised development.

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

Maintenance of the authorised development

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.

Planning permission

6.—(1) It does not constitute a breach of the terms of this Order if, following the coming into force of this Order, any development is carried out or used within the Order limits in accordance with any planning permission granted under the powers conferred by the 1990 Act.

(2) Subject to article 8 (application of the 1991 Act), nothing in this Order is to prejudice the operation of, and the powers and duties of the undertaker under, the 1980 Act, the 1991 Act and the Town and Country Planning (General Permitted Development) (England) Order 2015(35).

Limits of deviation

7.—(1) The following provisions of this article have effect subject to the requirement that the undertaker must, save for any works or operations authorised under articles 14 (protective works to buildings) or 15 (authority to survey and investigate land), construct the authorised development within the Order limits.

(2) In constructing and maintaining the non-linear works comprised in the authorised development, the undertaker may deviate laterally within the limits of deviation for those works shown on the works plans.

(3) Subject to paragraph (4), in constructing or maintaining the linear works comprised in the authorised development the undertaker may deviate laterally from the lines or situations shown on the works plans, within the Order limits, save that—

(a) in constructing or maintaining any linear work other than those referred to in column (1) of the table below, in deviating laterally from the centrelines shown on the works plans, the situation of the centreline may be varied up to a maximum of 3 metres either side of the centreline of that work as shown on the works plans; and

(b) in relation to the linear works referred to in column (1) of the table below, the centreline of that work may be—

(i) situated on the north side of the centreline of that work shown on the works plans, by a distance not exceeding the permitted limit for each such part, set out in the corresponding entry in column (2) of the table below; and

(ii) situated on the south side of the centreline of that work shown on the works plans, by a distance not exceeding the permitted limit for each such part, set out in the corresponding entry in column (3) of the table below.

Table referred to in paragraph (3)

(1) Part of authorised development	(2) Lateral limit of deviation of the centre line numbered work to the north side of the centre line shown on the works plans	(3) Lateral limit of deviation of the centre line of the numbered work to the south side of the centre line shown on the works plans
Work No. 0102-1D	10 metres	10 metres
Work No. 0102-7B	To the extent of the corresponding fine dashed green line shown on the works plans	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 0102-8	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 03-6	To the outer extent of the earthworks on the south side of Work No. 03-1B (being the A66 mainline)	3 metres
Work No. 03-7B	To the extent of the Order limits	To the outer extent of the earthworks on the north side of Work No. 03-1B (A66 mainline)
Work No. 03-8	To the extent of the Order limits	To the outer extent of the earthworks on the north side of Work No.03-1B (A66 mainline)
Work No. 0405-4B	To the extent of the Order limits	To the extent of the Order limits
Work No. 0405-6C	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 0405-8	3 metres	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 0405-12B	3 metres	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 0405-18	To the extent of the Order limits	To the extent of the Order limits
Work No. 0405-19	To the extent of the Order limits	To the extent of the Order limits
Work No. 06-4B	3 metres	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 06-4D	3 metres	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 06-7A	To the outer extent of the earthworks on the south side of Work No. 06-1D (A66 mainline)	3 metres
Work No. 09-1B	5 metres	5 metres
Work No. 09-1D	To the extent of the Order limits	3 metres
Work No. 09-3B	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 09-3E	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 09-3F	0 metres	5 metres

(4) In constructing or maintaining the linear works referred to in column (1) of the table below, the undertaker may deviate laterally within the Order limits so that the centreline of that work shown on the works plans may be—

(a) situated on the west side of the centreline of that work shown on the works plans, by a distance not exceeding the permitted limit for each such part, set out in the corresponding entry in column (2) of the table below; and

(b) situated on the east side of the centreline of that work shown on the works plans, by a distance not exceeding the permitted limit for each such part, set out in the corresponding entry in column (3) of the table below.

Table referred to in paragraph (4)

(1) Part of the authorised development	(2) Lateral limit of deviation of the centre line of the numbered work to the west side of the centre line shown on the works plans	(3) Lateral limit of deviation of the centre line of the numbered work to the east side of the centre line shown on the works plans
Work No. 0102-7B	To the extent of the corresponding fine dashed green line shown on the works plans	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 0405-7	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 0405-13	To the extent of the corresponding fine dashed green line shown on the works plans or where there is no fine dashed green line, 3 metres	To the extent of the corresponding fine dashed green line shown on the works plans or, where there is no fine dashed green line, 3 metres
Work No. 0405-20B	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres
Work No. 0405-20C	3 metres	To the extent of the corresponding fine dashed green line shown on the works plans
Work No. 06-2B	To the extent of the corresponding fine dashed green line shown on the works plans	3 metres

(5) In constructing or maintaining the authorised development, the undertaker may deviate vertically from the levels shown on the engineering section drawings: plan and profiles and the engineering section drawings: cross sections—

(a) upwards to any extent not exceeding 1 metre, or, in relation to the parts of the authorised development referred to in column (1) of the table below, not exceeding the permitted limit for each such part, set out in the corresponding entry in column (2) of that table;

(b) downwards to any extent not exceeding 1 metre, or, in relation to the parts of the authorised development referred to in column (1) of the table below, not exceeding the permitted limit for each such part, set out in the corresponding entry in column (3) of that table; and

(c) except that—

(i) in the case of Work Nos. 03-1A and 03-1B, the upwards and downwards vertical limits set out in paragraphs (a) and (b) will not apply where their application would preclude the undertaker from retaining the existing levels of the A66 carriageway along the lengths of those numbered works; and

(ii) in the case of Work No. 07-8, the upwards and downwards vertical limits set out in paragraphs (a) and (b) will not apply to the levels shown eastwards of chainage reference point 650,000 on Sheet 9 of the engineering section drawings: plan and profiles for scheme 07 where their application would preclude the undertaker from tying Work No. 07-8 into the existing ground levels at Bowes Cross Farm.

Table referred to in paragraph (5)

(1) Part of authorised development	(2) Upwards vertical limit of deviation	(3) Downwards vertical limit of deviation
Work No. 0102-1D	3 metres	3 metres
Work No. 0102-7A	2 metres	2 metres
Work No. 0102-7B	2 metres	2 metres
Work No. 0102-7C	2 metres	2 metres
Work No. 0102-8	1.5 metres	0 metres
Work No. 03-6	To any extent the undertaker considers to be necessary	To any extent the undertaker considers to be necessary
Work No. 03-7B	To any extent the undertaker considers to be necessary	To any extent the undertaker considers to be necessary
Work No. 03-8	To any extent the undertaker considers to be necessary	To any extent the undertaker considers to be necessary
Work No. 0405-1A	3 metres	3 metres
Work No. 0405-2A	3 metres	3 metres
Work No. 0405-5	1 metre	2 metres
Work No. 0405-6B	2 metres	To any extent the undertaker considers to be necessary
Work No. 0405-6C	2 metres	To any extent the undertaker considers to be necessary to tie in with Work No. 0405-7
Work No. 0405-7	1 metre	To any extent the undertaker considers to be necessary
Work No. 0405-8	To any extent the undertaker considers to be necessary to tie in with Work No. 0405-07	To any extent the undertaker considers to be necessary to tie in with Work No. 0405-7
Work No. 0405-12A	1 metre	To any extent the undertaker considers to be necessary to use existing ground levels
Work No. 0405-12B	1 metre	To any extent the undertaker considers to be necessary to use existing ground levels
Work No. 0405-13	3 metres	To any extent the undertaker considers to be necessary to use existing ground levels
Work No. 0405-20B	1 metre	To any extent the undertaker considers to be necessary to pass beneath Work Nos. 0405-1B and 0405-2B
Work No. 0405-20C	1 metre	To any extent the undertaker considers to be necessary to tie in with Work No. 0405-20B
Work No. 0405-18	1 metre	0 metres
Work No. 06-1B	1 metre	0 metres
Work No. 06-1C	0 metres	To any extent the undertaker considers to be necessary
Work No. 06-2A	2 metres	2 metres
Work No. 06-2B	2 metres	2 metres
Work No. 06-3	0 metres	To any extent the undertaker considers to be necessary
Work No. 06-4B	1 metre	To any extent the undertaker considers to be necessary
Work No. 06-7A	To any extent the undertaker considers to be necessary as a consequence of any horizontal movement northwards	2 metres
Work No. 07-1B	1 metre	1.5 metres
Work No. 07-2B	1 metre	1.5 metres
Work No. 07-7B	2 metres	2 metres
Work No. 08-1B	1 metre	2 metres
Work No. 08-4A	1 metre	2 metres
Work No. 08-4B	1 metre	2 metres
Work No. 09-1B	1 metre	3 metres
Work No. 09-1D	1 metre	4 metres
Work No. 09-3B	1 metre	To any extent the undertaker considers to be necessary
Work No. 09-5	1 metre	3 metres

(6) The maximum vertical limits of deviation referred to in paragraph (5) do not apply where it is demonstrated by the undertaker to the Secretary of State’s satisfaction and the Secretary of State certifies accordingly, following consultation with the relevant planning authority, that a deviation in excess of these limits would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(7) Without limitation on the scope of paragraphs (2) to (5), in constructing or maintaining the authorised development the undertaker may deviate by up to 3 metres from the points of commencement and termination of any linear works shown on the works plans.

(8) In this article, references to—

“linear works” are references to any works shown on the works plans by way of a centreline; and

“non-linear works” are references to any other works shown on the works plans.

Application of the 1991 Act

8.—(1) Works constructed or maintained 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) (highway authorities, highways and related matters) of that Act; or

(b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(36) (dual carriageways and roundabouts) of the 1980 Act or section 184(37) (vehicle crossings over footways and verges) of that Act.

(2) In Part 3 of the 1991 Act, in relation to works which are major highway works by virtue of paragraph (1), references to the highway authority concerned are 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 conferred by this Order—

section 56(38) (power to give directions as to timing of street works);

section 56A(39) (power to give directions as to placing of apparatus);

section 58(40) (restriction on works following substantial road works);

section 58A(41) (restriction on works following substantial street works);

section 73A(42) (power to require undertaker to re-surface street);

section 73B(43) (power to specify timing etc. of re-surfacing);

section 73C(44) (materials, workmanship and standard of re-surfacing);

section 78A(45) (contributions to costs of re-surfacing by undertaker); and

Schedule 3A(46) (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 prohibition, restriction, regulation, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 11 (temporary prohibition, restriction or regulation of use or alteration or diversion of streets) whether or not the prohibition, restriction, regulation, alteration or diversion constitutes street works within the meaning of that Act.

(5) The provisions of the 1991 Act(47) referred to in paragraph (4) are—

section 54(48) (advance notice of certain works), subject to paragraph (6);

section 55(49) (notice of starting date of works), subject to paragraph (6);

section 57(50) (notice of emergency works);

section 59(51) (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(52) (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 prohibition, restriction, regulation, alteration or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 9 (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, and the undertaker is not by reason of any duty under that article to maintain a street or to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

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

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

9.—(1) Subject to paragraphs (6), (7) and (8), any highway (other than a trunk road or special road) to be constructed under this Order must be completed to the reasonable satisfaction of the local highway authority in whose area the highway lies and, unless otherwise agreed in writing with the local highway authority, the highway, including any culverts or other structures laid under it, must be maintained by and at the expense of the local highway authority from its completion.

(2) Subject to paragraphs (3), (6), (7) and (8), where a highway (other than a trunk road or special 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 local highway authority and, unless otherwise agreed in writing with the local highway authority, that part of the highway, including any culverts or other structures laid under it, must be maintained by and at the expense of the local highway authority from its completion.

(3) Subject to paragraphs (6), (7) and (8), where a footpath, bridleway or byway open to all traffic is altered or diverted under this Order along a vehicular private means of access, the altered or diverted part of the highway must, when completed to the reasonable satisfaction of the highway authority and unless otherwise agreed in writing, be maintained (including any culverts or other structures laid under that part of the highway) by and at the expense of the person or persons with the benefit of the vehicular private means of access.

(4) 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, unless otherwise agreed in writing, 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.

(5) Subject to paragraphs (6), (7) and (8), where a highway is de-trunked under this Order—

(a) section 265(53) (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 and in connection with that de-trunking must, unless otherwise agreed in writing with the local highway authority, be maintained by and at the expense of the local highway authority from the date of de-trunking.

(6) In the case of any bridge constructed under this Order to carry a highway (other than a trunk road or special road) over a trunk road or special road, the highway surface must from its completion be maintained by and at the expense of the local highway authority and the structure of the bridge must be maintained by and at the expense of the undertaker.

(7) In the case of any bridge constructed under this Order to carry a highway (other than a trunk road or special road) over another highway which is not a trunk road or a special road, both the highway surface and structure of the bridge must be maintained by and at the expense of the local highway authority from their completion.

(8) In the case of a bridge constructed under this Order to carry a private right of way (whether or not it also carries a footpath or bridleway), the surface of the street and the structure of the bridge must be maintained by and at the expense of the undertaker.

(9) In any action against the undertaker in respect of loss or damage resulting from any failure by the undertaker to maintain a street under this article, it is a defence (without affecting 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.

(10) For the purposes of a defence under paragraph (9), 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 that the competent person had carried out those instructions.

Permanent stopping up of streets and private means of access

10.—(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 rights of way and access plans and specified in columns (1) and (2) of Parts 1, 2, 3 and 4 of Schedule 2 (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 1 and 3 of Schedule 2 (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 2 and 4 of Schedule 2 (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 of 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 (determination of questions of disputed compensation) of the 1961 Act.

(7) Following the opening for public use of a public right of way that has been constructed, permanently altered or permanently diverted under the powers conferred by this article the undertaker must supply the surveying authority with plans showing that public right of way as constructed, permanently altered or permanently diverted together with a statement of the modifications required to the definitive statement.

(8) The plans and statement of modifications to the definitive statement referred to in paragraph (7) are deemed to be an order modifying the definitive map and statement made under section 53(3)(a) (duty to keep definitive map and statement under continuous review) of the Wildlife and Countryside Act 1981(54).

(9) This article is subject to article 32 (apparatus and rights of statutory undertakers in stopped up streets).

(10) In this article “surveying authority” has the meaning given to it by section 66(1)(55) (interpretation of Part III) of the Wildlife and Countryside Act 1981.

Temporary prohibition, restriction or regulation of use or alteration or diversion of streets

11.—(1) The undertaker may, during and for the purposes of constructing the authorised development, temporarily prohibit, restrict or regulate the use of, or temporarily alter or divert 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 temporarily prohibited, restricted, regulated, altered or diverted 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 prohibition, restriction, regulation, alteration or diversion of a street under this article if there would otherwise be no such access.

(4) The undertaker must not temporarily prohibit, restrict or regulate the use of or alter or divert 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 its consent must not be unreasonably withheld or delayed.

(5) Any person who suffers loss by the suspension 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 (determination of questions of disputed compensation) of the 1961 Act.

Access to works

12.  The undertaker may 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.

Discharge of water

13.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse, public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the making of connections to or the 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(56).

(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.

(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; 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 the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(6) Nothing in this article overrides the requirement for an environmental permit under regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(57).

(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, a sewerage undertaker or an urban development corporation; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(58), have the same meanings as in that Act.

Protective works to buildings

14.—(1) Subject to the following provisions of this article, the undertaker may at the undertaker’s own expense carry out such protective works to any building lying within the Order limits or 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) Subject to paragraph (5), 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.

(4) Subject to paragraphs (5) and (6), for the purpose of carrying out protective works to a building under this article the undertaker may—

(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 (whether or not such adjacent land is inside or outside the Order limits) but not any building erected on it,

and if it reasonably requires, the undertaker may take possession, or exclusive possession, of the building and any land or part thereof for the purpose of carrying out the protective works.

(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), (5)(c) or (5)(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 of 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 51 (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) Subject to article 39 (no double recovery) nothing in this article relieves the undertaker from any liability to pay compensation under section 152(59) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) Section 13(60) (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(61) (application of 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 construction, 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.

Authority to survey and investigate land

15.—(1) The undertaker may for the purposes of the construction, operation or maintenance of the authorised development enter on—

(a) any land shown within the Order limits; and

(b) where reasonably necessary, any land which is adjacent to, but outside the Order limits

and—

(i) survey or investigate the land (including any watercourses, groundwater, static water bodies or vegetation on the land);

(ii) without limitation on the scope of sub-paragraph (i), make any excavations or trial holes and boreholes 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;

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

(iv) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes 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 authority to do so; and

(b) may take onto 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 or boreholes 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.

(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 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 (application of compulsory acquisition provisions) of the 2008 Act.

Removal of human remains

16.—(1) In this article—

“the burial authority” means the burial authority for the specified land from which the relevant human remains are to be removed, being Westmorland and Furness Council or the North Yorkshire Council, or any successor to their functions; and

“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 from the specified land 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 once in each of two successive weeks in a newspaper circulating in the area of the specified land; 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 burial 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 must, 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 is to 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 is to 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;

(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;

(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 re-interred 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 re-interred in individual containers which must 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 must 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 burial 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 (15) 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) In this article—

(a) references to a relative of the deceased are to a person who—

(i) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased; or

(ii) is, or is a child of, a brother, sister, uncle or aunt of the deceased; and

(b) references to a personal representative of the deceased are to a person or persons who—

(i) is the lawful executor of the estate of the deceased; or

(ii) is the lawful administrator of the estate of the deceased.

(15) The removal and subsequent treatment 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.

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

(17) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857(62) is not applied to a removal carried out in accordance with this article.

(18) 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 29 (temporary use of land for constructing the authorised development) or 30 (temporary use of land for maintaining the authorised development), so as to permit the exercise of that right or the temporary use of land by the undertaker in accordance with the provisions of this Order,

and in section 240(1) (provisions supplemental to ss.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 (16) of this article and section 240(3) of the 1990 Act reference to a “statutory undertaker” includes the undertaker and reference to “any other enactment” includes this Order.

(19) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950(63) do not apply to the authorised development.

Felling or lopping of trees and hedgerows

17.—(1) The undertaker may fell or lop any tree or shrub, including a tree subject to a tree preservation order, within or overhanging land within the Order limits, or cut back its roots, if the undertaker 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) Without prejudice to the generality of paragraph (1) the undertaker may, for the purposes of the construction of the authorised development, in relation to the trees identified in columns (1), (2) and (3) of Schedule 3 (trees subject to tree preservation orders) carry out the corresponding works described in column (4).

(3) In carrying out any activity authorised by paragraph (1) or (2) 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.

(4) Where works to a tree are authorised by paragraph (1) or (2) and a tree preservation order is in force in relation to that tree—

(a) written consent for the works is deemed to have been granted by a local planning authority having functions under the tree preservation order; and

(b) the duty imposed by section 206(1)(64) (replacement of trees) of the 1990 Act does not apply.

(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.

(6) The undertaker may, for the purposes of constructing, maintaining or operating the authorised development but subject to paragraph (3), remove any hedgerow within the Order limits that is required to be removed.

(7) In this article “hedgerow” includes a hedgerow to which the Hedgerow Regulations 1997(65) apply and includes important hedgerows.

Maintenance of drainage works

18.—(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, unless 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(66).

PART 3 POWERS OF ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

19.—(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 22 (compulsory acquisition of rights and restrictive covenants), article 27 (acquisition of subsoil, etc., only) and article 29 (temporary use of land for constructing the authorised development).

Compulsory acquisition of land – incorporation of the minerals code

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

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

(b) for “the acquiring authority” substitute “the undertaker”.

Time limit for exercise of powers to possess land temporarily or to acquire land compulsorily

21.—(1) After the end of the period of five years beginning with the day on which this Order comes into force—

(a) no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act as modified by article 25 (modification of 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 26 (application of the 1981 Act),

in relation to any part of the Order land.

(2) The authority conferred by article 29 (temporary use of land for constructing 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.

Compulsory acquisition of rights and restrictive covenants

22.—(1) Subject to the following paragraphs of this article, the undertaker may acquire such rights over the Order land or impose such restrictive covenants affecting the Order land as may be required for any purpose for which that land may be acquired under article 19 (compulsory acquisition of land), by creating them as well as acquiring rights already in existence.

(2) In the case of the Order land specified in columns (1) and (2) of Schedule 4 (land in which only new rights 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 over the land or the imposition of such restrictive covenants as the undertaker may require for or in connection with the authorised development for the purposes specified in column (3) of Schedule 4 in relation to that land.

(3) Subject to section 8(67) (other provisions as to divided land) of, and Schedule 2A(68) (counter-notice requiring purchase of land not in notice to treat) to, the 1965 Act (as substituted by paragraph 5(8) of Schedule 5 (modification of compensation and compulsory purchase enactments for the creation of new rights and restrictive covenants)), where the undertaker acquires a right over land or the benefit of a restrictive covenant, the undertaker is not required to acquire a greater interest in that land.

(4) Schedule 5 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application 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.

Private rights over land

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

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

(b) on the date of entry onto the land by the undertaker under section 11(1)(69) (powers of entry) of the 1965 Act,

whichever is the earlier.

(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) 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 onto the land by the undertaker under section 11(1) of the 1965 Act, or

(c) on commencement of any activity authorised by the Order which interferes with or breaches those rights,

whichever is the earlier.

(3) 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.

(4) Any person who suffers loss by the extinguishment or suspension of any private right or by the imposition of any restrictive covenant under this article is entitled to compensation in accordance with the terms of section 152(70) (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.

(5) This article does not apply in relation to any right to which section 138(71) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 31 (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 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.

(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 user of land arising by virtue of a contract, agreement or undertaking having that effect.

Power to override easements and other rights

24.—(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 include 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 (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—

(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 (including the temporary use of land).

Modification of Part 1 of the 1965 Act

25.—(1) Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied to this Order by section 125(72) (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4A(1)(73) (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(74) (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A66 Northern Trans-Pennine Development Consent Order 2024”.

(3) In section 11A(75) (powers of entry: further notice 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) (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 “article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A66 Northern Trans-Pennine Development Consent Order 2024”.

(5) In Schedule 2A(76) (counter-notice requiring purchase of land not in notice to treat)—

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

“(2) But see article 27(4) (acquisition of subsoil, etc., only) of the A66 Northern Trans-Pennine Development Consent Order 2024, which excludes the acquisition of subsoil or airspace only from this Schedule.”; and

(b) after paragraph 29, insert—

“PART 4 INTERPRETATION

30.   In this Schedule, references to entering on and taking possession of land do not include doing so under articles 14 (protective works to buildings), 15 (authority to survey and investigate land), 29 (temporary use of land for constructing the authorised development) or 30 (temporary use of land for maintaining the authorised development) of the A66 Northern Trans-Pennine Development Consent Order 2024.”.

Application of the 1981 Act

26.—(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(77) (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A(78) (time limit for general vesting declaration).

(6) In section 5B(79) (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(80) (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A66 Northern Trans-Pennine Development Consent Order 2024”.

(7) In section 6(81) (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(82) (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In section 7(83) (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(84) (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—

“(2) But see article 27(4) (acquisition of subsoil, etc., only) of the A66 Northern Trans-Pennine Development Consent Order 2024, 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 (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 25 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil, etc., only

27.—(1) The undertaker may acquire compulsorily so much of, or such rights over, the subsoil of and airspace over the land referred to in paragraph (1) of article 19 (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 over, the subsoil or surface of or airspace over 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;

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

(c) section 153(4A)(85) (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.

Rights over or under streets

28.—(1) The undertaker may enter on, appropriate and use 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 or for 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 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 (determination of questions of disputed compensation) of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing 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.

Temporary possession of land

Temporary use of land for constructing the authorised development

29.—(1) The undertaker may, in connection with the construction of the authorised development but subject to article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily)—

(a) enter on and take temporary possession of—

(i) the land specified in columns (1) and (2) of Schedule 6 (land of which only 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 of the Order land in respect of which no notice of entry has been served under section 11(86) (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(87) (execution of declaration) of the 1981 Act;

(b) remove any buildings and vegetation from that land referred to in sub-paragraph (a);

(c) construct temporary works (including the provision of means of access) and buildings on the land referred to in sub-paragraph (a); and

(d) construct any works on the land referred to in sub-paragraph (a) 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 and explain the purpose for which entry is proposed to be 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 any 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 6; 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, use of facilities, or other purpose, 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 (powers of entry) of the 1965 Act or made a declaration under section 4 (execution of declaration) 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 or return the land in such condition as is agreed with the owner 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; or

(d) remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development.

(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) Subject to article 39 (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 execution of any works, 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).

(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(88) (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 (application of compulsory acquisition provisions) of the 2008 Act.

Temporary use of land for maintaining the authorised development

30.—(1) Subject to paragraph (3), at any time during the maintenance period relating to any of the authorised development, the undertaker may—

(a) enter upon and take temporary possession of any land within the Order limits if 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 and that notice must state the purpose for which the undertaker intends to take possession of the land including the particulars of the part of the authorised development for which possession is to be taken.

(4) 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.

(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.

(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 powers conferred by this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, must be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) 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 execution of any works, other than loss or damage for which compensation is payable under paragraph (6).

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

(10) Section 13 (refusal to give possession to the 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 (application of compulsory acquisition provisions) of the 2008 Act.

(11) 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—

(a) that part of the authorised development is first opened for public use (where that part of the authorised development is intended to be used by the public); or

(b) in respect of any other part of the authorised development, that part is first brought into operational use by the undertaker.

Supplementary

Statutory undertakers

31.—(1) Subject to the provisions of article 22(2) (compulsory acquisition of rights and restrictive covenants), Schedule 9 (protective provisions) and paragraph (2), the undertaker may—

(a) exercise the powers conferred by article 19 (compulsory acquisition of land) and article 22 (compulsory acquisition of rights and restrictive covenants) in relation to so much of the Order land belonging to statutory undertakers; and

(b) extinguish the rights of, 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; or

(b) article 32 (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

32.—(1) Where a street is stopped up under article 10 (permanent stopping up 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 10 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, 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 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 (street works in England and Wales) 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 section 151(1) (interpretation of chapter 1) of the Communications Act 2003.

Recovery of costs of new connection

33.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 31 (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 sewer is removed under article 31, 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 32 (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) (interpretation) of the Communications Act 2003; and

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

Special category land

34.—(1) On the exercise by the undertaker of the relevant Order powers, the special category land is not to vest in the undertaker until the undertaker has acquired the replacement land and the Secretary of State (in consultation with the relevant planning authority) has approved a scheme for the provision of the replacement land and the relevant planning authority has certified that the scheme has been implemented to its satisfaction.

(2) On the requirements of paragraph (1) being satisfied—

(a) the special category land is to vest in the undertaker and be discharged from all rights, trusts and incidents to which it was previously subject; and

(b) the replacement land is to vest, subject to the same rights, trusts and incidents as attached to the special category land, as follows—

(i) in relation to the scheme 0102 special category, in any person in whom the special category land was vested immediately before it was vested in the undertaker; and

(ii) in relation to the scheme 06 special category land and the scheme 07 special category land, in the relevant planning authority.

(3) In this article—

“the relevant Order powers” means the powers exercisable over the special category land by the undertaker under article 19 (compulsory acquisition of land) or article 22 (compulsory acquisition of rights and restrictive covenants);

“the special category land” means—

(i)

the land within the Order limits for scheme 0102 identified as comprising open space and being numbered 0102-01-32, 0102-01-47, 0102-02-01, 0102-02-08 and 0102-02-22 in the book of reference for scheme 0102 and shown on the special category land plans for scheme 0102 (“the scheme 0102 special category land”);

(ii)

the land within the Order limits for scheme 06 identified as comprising common land and being numbered 06-01-04, 06-01-05, 06-01-10, 06-01-44, 06-01-45 and 06-01-46 in the book of reference for scheme 06 and shown on the special category land plans for scheme 06 (“the scheme 06 special category land”); and

(iii)

the land within the Order limits for scheme 07 identified as comprising common land and being numbered 07-01-48, 07-01-51, 07-01-53, 07-01-61, 07-01-63, 07-01-64, 07-01-75, 07-01-76, 07-01-86, 07-01-87, 07-01-89 and 07-01-94 in the book of reference for scheme 07 and on the special category land plans for scheme 07 (“the scheme 07 special category land”); and

“the replacement land” means—

(i)

for the scheme 0102 special category land, the land identified as replacement land and numbered 0102-02-20 in the book of reference for scheme 0102 and shown on the special category land plans for scheme 0102;

(ii)

for the scheme 06 special category land (common land), the land identified as replacement land and numbered 06-01-39 in the book of reference for scheme 06 and shown on the special category land plans for scheme 06; and

(iii)

for the scheme 07 special category land, the land identified as replacement land and numbered 07-01-25 in the book of reference for scheme 07 and shown on the special category land plans for scheme 07.

Crown rights

35.—(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 (including any river, channel, creek, bay or estuary)—

(a) belonging to His 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 His Majesty in right of the Crown and 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 His 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 acquisition 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.

Relocation of Brough Hill Fair

36.—(1) Subject to paragraph (8), the undertaker must not take exclusive possession of any part of the existing Brough Hill Fair site for the purposes of constructing the authorised development until the Secretary of State has—

(a) approved a scheme prepared by the undertaker for the provision of the replacement Brough Hill Fair site; and

(b) certified that—

(i) the approved scheme has been satisfactorily implemented by or on behalf of the undertaker; and

(ii) the replacement Brough Hill Fair site is suitable and available for use by the persons who enjoy the Brough Hill Fair rights.

(2) The scheme for the provision of the replacement Brough Hill Fair site mentioned in paragraph (1) must—

(a) provide for the replacement Brough Hill Fair site to be laid out such that it is a suitable replacement for the existing Brough Hill Fair site, in terms of—

(i) including facilities that are at least as equivalent to those of the existing Brough Hill Fair site at the time this Order came into force;

(ii) making appropriate provision for safe access to and from the replacement Brough Hill Fair site for vehicles, horses and persons;

(iii) making appropriate provision for the treatment of the boundaries of the replacement Brough Hill Fair site, to secure the safe use and enjoyment of the site and having regard to the use and amenity of adjacent land; and

(iv) setting out the arrangements for maintenance and management of the facilities, access and boundaries mentioned in paragraphs (i) to (iii) above, having regard in particular to safety and security considerations; and

(b) be prepared by the undertaker following consultation with—

(i) such persons as the undertaker reasonably considers represents the interests of the persons who enjoy the Brough Hill Fair rights;

(ii) the owners and occupiers of land adjacent to the replacement Brough Hill Fair site;

(iii) the relevant planning authority; and

(iv) the local highway authority.

(3) The Secretary of State requires a consultation report to be submitted together with the prepared scheme prior to its approval pursuant to paragraph (1)(a) and a consultation report and arrangements detailing the implementation of the approved scheme prior to its certification pursuant to paragraph (1)(b).

(4) The Secretary of State may undertake his own consultation if he regards it to be appropriate with the parties referred to in paragraph (2)(b) and such other parties as he considers appropriate.

(5) The Secretary of State requires the undertaker to provide independent verification that the arrangements for the implementation for the approved scheme have been effectively undertaken in accordance with paragraph (1)(b) before the scheme is certified by the Secretary of State; and the cost of the independent verification is to be borne by the undertaker.

(6) Immediately on taking exclusive possession of the existing Brough Hill Fair site for the purposes of constructing the authorised development—

(a) the Brough Hill Fair rights vest in the replacement Brough Hill Fair site; and

(b) the existing Brough Hill Fair site is released from the Brough Hill Fair rights.

(7) As soon as is reasonably practicable after taking exclusive possession of the existing Brough Hill Fair site for the purposes of constructing the authorised development, the undertaker must—

(a) publish in a locally circulating newspaper a notice confirming the date on which the Brough Hill Fair rights vested in the replacement Brough Hill Fair site and the existing Brough Hill Fair site was released from the Brough Hill Fair rights; and

(b) notify such persons as the undertaker reasonably considers represent the interests of the persons who enjoy the Brough Hill Fair rights.

(8) Nothing in paragraph (1) prohibits the undertaker from taking exclusive possession of any part of the existing Brough Hill Fair site for the purposes of implementing a scheme approved under that paragraph.

(9) The scheme approved by the Secretary of State under paragraph (1)(a) may be modified by the undertaker before it has been implemented in full, and if it is then paragraphs (1) to (2) apply to the preparation, approval and implementation of the modified scheme.

(10) The transfer of the Brough Hill Fair rights to the replacement Brough Hill Fair site by virtue of paragraph (6) is not to be regarded, in any claim or legal proceedings relating to the nature and extent of the Brough Hill Fair rights, as resulting in any interruption to the enjoyment of those rights.

(11) In this article—

“the Brough Hill Fair rights” means any and all customary rights, prescriptive rights, rights derived from royal charter and public rights, that relate to the event known as the Brough Hill Fair that do or may subsist immediately before the Brough Hill Fair rights are transferred to the replacement Brough Hill Fair site in accordance with the provisions of this article;

“the consultation report” means the report containing the responses of the parties referred to in paragraph (2)(b) and setting out the position as agreed between the undertaker and those parties, and in the event of disagreement the provisions of article 51 (arbitration) are to apply.

“the existing Brough Hill Fair site” means the land described in the book of reference for scheme 06 and shown on the land plans for scheme 06 that is numbered 06-04-43 and 06-05-06; and

“the replacement Brough Hill Fair site” means the land in the book of reference for scheme 06 and shown on the land plans for scheme 06 that is—

(a)

numbered 06-04-32 and 06-04-33; and

(b)

numbered 06-04-43 but only so much of it (approximately 4,000 square metres) as is included in the scheme certified under paragraph (1)(b).

Compensation

Disregard of certain interests and improvements

37.—(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.

Set-off for enhancement in value of retained land

38.—(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 22 (compulsory acquisition of rights and 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.

No double recovery

39.  Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.

PART 4 OPERATIONAL PROVISIONS

Classification of roads, etc.

40.—(1) From the date on which the roads described in the paragraphs of Schedule 7 (classification of roads, etc.) and listed in column (1) of the table below are completed and open for traffic, those roads with the corresponding classification in column (2) of that table that are described as—

(a) special roads, are to become special roads as if they had become so by virtue of an order made under section 16(3) (general provision as to special roads) of the 1980 Act specifying that date as the date on which they were to become special roads;

(b) trunk roads, are to become trunk roads as if they had become so by virtue of an order made under section 10(2)(89) (general provision as to trunk roads) of the 1980 Act specifying that date as the date on which they were to become trunk roads;

(c) classified roads, are to be classified as set out in that Part and are to be a classified road for the purpose of any enactment or instrument which refers to highways classed 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;

(d) unclassified roads, are to be unclassified; and

(e) a quiet lane, is to become a quiet lane as if it had been designated as a quiet lane by virtue of section 268(1) (quiet lanes and home zones) of the Transport Act 2000(90).

Table referred to in paragraph (1)

(1) Paragraphs of Schedule 7 in which the road to be classified in accordance with the provisions of this article is described	(2) Classification of roads
2, 3, 4 and 5	Special roads
1, 7, 8, 9, 10, 16, 17, 18, 19, 24, 25, 26, 27, 28, 29, 30, 50, 51, 53, 62, 63, 64, 65, 66, 67, 72, 73, 74, 79, 80, 81, 83, 88, 89, 92 and 93	Trunk roads
6, 11, 12, 13, 14, 20, 31, 32, 33, 34, 35, 36, 37, 38, 52, 54, 55, 56, 58, 75, 82, 90 and 91	Classified roads
21, 22, 39, 40, 41, 42, 43, 44, 45, 46, 47, 57, 59, 68, 69, 70, 76, 77, 78 and 94	Unclassified roads
48	Quiet lane

(2) Subject to paragraphs (3) and (4), the undertaker may vary the classification or designation of the roads, or any part of those roads, provided for in paragraph (1) and such variation may provide for any trunk road comprised in the authorised development and referred to in paragraph (1)(a) to be classified as a special road.

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

(a) given not less than 4 weeks’ notice in writing of the undertaker’s intention so to do to the chief officer of police and to the 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 7 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.

(4) 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.

(5) Any roads classified as a special road in accordance with paragraph (1) are 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 of the classes of traffic set out in Schedule 4 (classes of traffic for purposes of special roads) to the 1980 Act.

(6) On any such days as the undertaker may determine, unless otherwise agreed in writing with the local highway authority, the roads described in paragraphs 15, 23, 49, 60, 61, 71, 84, 85, 86, 87, 95 and 96 of Schedule 7 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 as the date on which they were to cease to be trunk roads.

(7) The application of paragraphs (1) to (6) may be varied or revoked by any instrument made under any enactment which provides for the variation or revocation of such matters.

Clearways

41.—(1) From such day or days as the undertaker may determine, except as provided in paragraph (2) below, no person is to cause or permit any vehicle to wait on any part of the lengths of road described in column (2) of any of the tables headed “traffic regulation measures (clearways and prohibitions)” contained in Schedule 8 (traffic regulation measures etc.) where it is identified that such lengths of road are to become a clearway in the corresponding row of column (3) of that table, 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(91); 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(92); or

(iv) by a universal service provider for the purposes of providing a universal postal service as defined by the Postal Service Act 2000(93); 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 2004 Act.

Traffic regulation measures

42.—(1) Subject to the provisions of this article, and from any such day or days as the undertaker may determine—

(a) no person is to drive any motor vehicle at a speed exceeding the limit in miles per hour specified in column (3) of any of the tables headed “speed limits” contained in Schedule 8 (traffic regulation measures etc.) along the lengths of road identified in the corresponding row of column (2) of that table;

(b) subject to paragraph (2) and article 41 (clearways), the restrictions (other than clearways) specified in column (3) of any of the tables headed “traffic regulation measures” (clearways and prohibitions) contained in Schedule 8 is to apply to the length of road identified in the corresponding row of column (2) of that table; and

(c) the orders specified in column (3) of any of the tables headed “revocations and variations of existing traffic regulation orders” contained in Schedule 8 are to be varied or revoked as specified in the corresponding row of column (4) of that table in respect of the lengths of roads specified in the corresponding row of column (2) of that table.

(2) No speed limit imposed by or under this Order applies to vehicles falling within regulation 3(4) of the Road Traffic Exemptions (Special Forces) (Variation and Amendment) Regulations 2011(94) when used in accordance with regulation 3(5) of those regulations.

(3) Without limiting the scope of the specific powers conferred by paragraph (1) but subject to the provisions of this article and consent of the traffic authority in whose area the road concerned is situated, which consent must not be unreasonably withheld, the undertaker may, in so far as necessary or expedient for the purposes of, in connection with, or in consequence of the construction, maintenance and operation 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 vehicular access to any road,

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

(4) The power conferred by paragraph (3) may be exercised at any time prior to the expiry of 24 months from the opening of the authorised development for public use, but subject to paragraph (8), any prohibition, restriction or other provision made under paragraph (3) may have effect both before and after the expiry of that period.

(5) The undertaker must not exercise the powers conferred by paragraph (3), 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 the undertaker’s 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 (1) or (3)—

(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(95) (power of local authorities to provide parking places) 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 2004 Act.

(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 (1) or (3) within a period of 24 months from the opening of the authorised development.

(8) Before exercising the powers conferred by paragraph (1) or (3) 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.

PART 5 MISCELLANEOUS AND GENERAL

Benefit of the Order

43.—(1) Subject to article 44 (consent to transfer benefit of Order) and paragraph (2), the provisions of this Order conferring functions 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 or accommodation of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

Consent to transfer benefit of Order

44.—(1) The undertaker may, regardless of any provision in any enactment, with the consent of the Secretary of State—

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

(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 that apply to the undertaker and such related statutory rights as may be so agreed.

(2) Where an agreement has been made in accordance with paragraph (1), references in the provisions of this Order and any document certified under it that apply to the undertaker are to be read as references to the transferee or the grantee, or any other person who may exercise, enjoy or be responsible for any functions of the undertaker pursuant to that agreement, as the case may be.

(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

Application of landlord and tenant law

45.—(1) This article applies to any agreement entered into by the undertaker under article 44 (consent to transfer benefit of Order) so far as it relates to the terms on which any land is subject to a lease granted by or under that agreement.

(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 enactment or rule of law to which paragraph (2) applies is to apply 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.

Operational land for the purposes of the 1990 Act

46.  Development consent granted by this Order for development on Order land is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as not being operational land for the purposes of that Act) of the 1990 Act.

Defence to proceedings in respect of statutory nuisance

47.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisances) of the Environmental Protection Act 1990(96) 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)(97) 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 construction or maintenance 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(98); 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, 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.

Protective provisions

48.  Schedule 9 (protective provisions) has effect.

Certification of plans, etc.

49.—(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents referred to 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 referred to 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.

(4) The undertaker must, following certification of the plans or documents in accordance with paragraph (1), make those plans or documents available in electronic form for inspection by members of the public.

Service of notices

50.—(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 (6) to (9) 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(99) 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 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.

Arbitration

51.  Except where otherwise expressly provided for in this Order and unless otherwise agreed in writing 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.

Consents, agreements and approvals

52.—(1) Where any application is made to a relevant authority, the consent, agreement or approval concerned must, if given, be given in writing and is not to be unreasonably withheld or delayed.

(2) If a relevant authority which has received an application fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was received, the relevant authority is deemed to have given its consent, agreement or approval as the case may be.

(3) Any application to which this article applies must include a written statement that the provisions of paragraph (2) apply to that application.

(4) In this article—

“application” means an application or request for any consent, agreement or approval required or contemplated by articles 9 (construction and maintenance of new, altered or diverted streets and other structures), 11 (temporary prohibition, restriction or regulation of use of streets), 13 (discharge of water), 15 (authority to survey and investigate land) and 42 (traffic regulation measures); and

“relevant authority” means a relevant planning authority, a traffic authority, a highway authority, a street authority or an owner of a public sewer or drain as defined in article 13(7)(a).

Environmental Management Plans

53.—(1) The undertaker must not commence any part of the authorised development until a second iteration EMP for that part accompanied by a summary report has been submitted to and approved in writing by the Secretary of State.

(2) The Secretary of State must consult the Environment Agency, Historic England and Natural England (on matters related to their statutory functions), local authorities and highway authorities on the submitted second iteration EMP, allowing each party a period not exceeding 30 days to respond unless otherwise agreed to in writing by the Secretary of State.

(3) The consultation requirement outlined in paragraph (2) applies where the Secretary of State considers it is necessary in relation to any amendment made to the approved second iteration EMP.

(4) Each part of the authorised development must be constructed in accordance with the relevant second iteration EMP applying to that part.

(5) Each part of the authorised development must be operated and maintained in accordance with the relevant third iteration EMP applying to that part.

(6) A second iteration EMP must—

(a) be substantially in accordance with the first iteration EMP insofar as it relates to the relevant part of the authorised development, unless the Secretary of State is satisfied that any part of the second iteration EMP that is not substantially in accordance with the first iteration EMP would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement;

(b) include the Arboricultural Impact Assessment which is broadly aligned with the information contained in the Tree Loss and Compensation Report(100); and

(c) be prepared in accordance with the consultation and determination provisions.

(7) The undertaker may only amend the approved second iteration EMP where no relevant party, as referred to in paragraph (2), has registered disagreement to the amendment being proposed by the undertaker.

(8) Where a relevant party has disagreed with the amendment being proposed by the undertaker to the approved second iteration EMP and agreement cannot be reached between the undertaker and that party, the undertaker is required to inform and seek approval for that amendment from the Secretary of State.

(9) Before approving any amendment referred to in paragraph (8), the Secretary of State may seek further information from the undertaker and carry out a consultation with relevant parties in accordance with paragraph (3).

(10) The undertaker must establish and maintain in an electronic form suitable for inspection by members of the public a register of all amendments to the approved second iteration EMP, falling within paragraph (7) or paragraph (9).

(11) On completion of the construction of each part of the authorised development the undertaker must prepare, and determine whether to approve in accordance with the consultation and determination provisions, a third iteration EMP for that part, which must substantially accord with the measures relevant to the operation and maintenance of the authorised development contained in the relevant second iteration EMP approved (either initially, or as subsequently amended) for that part in accordance with the provisions of this article and the undertaker may at any time subsequently determine to approve amendments to a previously approved third iteration EMP in accordance with the provisions of this paragraph.

(12) The mainline A66 must not be completed and opened for public use until—

(a) a detailed blanket bog compensation and maintenance plan, prepared in accordance with the outline blanket bog compensation and maintenance plan, has been submitted to and approved in writing by the Secretary of State, following consultation with Natural England; and

(b) the approved detailed blanket bog compensation and maintenance plan has been implemented to the Secretary of State’s satisfaction, following consultation with Natural England.

(13) Following implementation of the approved blanket bog compensation and maintenance to the Secretary of State’s satisfaction the undertaker must maintain the restored blanket bog in accordance with the approved detailed blanket bog compensation and maintenance plan.

(14) The consultations referred to in paragraphs (12) and (13) are to be carried out in accordance with the procedures contained in paragraphs 1.4.17 to 1.4.34 and paragraphs 1.4.38 to 1.4.40 of the first iteration EMP, except that the functions of the “Principal Contractor” or “PC” may be performed by the undertaker.

(15) If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with the provisions of this article, those steps may be taken into account for the purposes of determining compliance with this article if they would have been valid steps for that purpose had they been taken after this Order came into force.

(16) In this article—

“commence” means beginning to carry out any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised development other than operations consisting of archaeological investigations and mitigation works (but only to the extent undertaken in accordance with the guidance documents specified in paragraph B3.3.4 of Annex B3 of the first iteration EMP), ecological surveys and mitigation works, investigations for the purpose of assessing and monitoring ground conditions and levels, remedial work in respect of any contamination or other adverse ground conditions, erection of any temporary means of enclosure, receipt and erection of construction plant and equipment and the temporary display of site notices or advertisements, and “commencement” is to be construed accordingly;

“the consultation and determination provisions” means the provisions contained in paragraphs 1.4.9 to 1.4.52 of the first iteration EMP that set out the matters on which consultation is required and the procedures that apply to the conduct of that consultation and which require the undertaker to maintain functional separation when making determinations under this article;

“the first iteration EMP” means the document certified by the Secretary of State under article 49 (certification of plans, etc.) as being the first iteration EMP (Environmental Management Plan) for the purposes of this Order;

“the mainline A66” means the A66 carriageway to be constructed or improved as part of Work Nos. 0102-1, 03-1, 0405-1, 0405-2, 06-1, 07-1, 08-1, 09-1 and 11-1;

“the outline blanket bog compensation and maintenance plan” means the document listed in Schedule 10 certified by the Secretary of State under article 49 as the outline blanket bog compensation and maintenance plan for the purposes of this Order;

“the second iteration EMP” means, in relation to any part of the authorised development, the development of the first iteration EMP in its application to that part of the authorised development, following the grant of development consent and in advance of its construction, as approved or subsequently amended in accordance with this article;

“submission” has the meaning given to it in paragraph 1.4.17 of the first iteration EMP;

“summary report” has the meaning given to it in paragraph 1.4.17 of the first iteration EMP; and

“the third iteration EMP” means, in relation to any part of the authorised development, the development of the second iteration EMP in its application to that part of the authorised development, to support its future management and operation following completion of its construction, as approved or subsequently amended in accordance with this article.

Detailed design

54.—(1) Subject to article 7 (limits of deviation) and the provisions of this article, the authorised development must be designed in detail and carried out so that it is substantially in accordance with—

(a) the design principles;

(b) the works plans;

(c) the engineering section drawings: plan and profiles and the engineering section drawings: cross sections; and

(d) the matters approved by the Secretary of State under paragraphs (5), (8) and (9).

(2) The undertaker in relation to the detailed design of the authorised development must have regard to the amended duty to further the purpose of conserving and enhancing the protected landscapes set out in—

(a) section 11A of the National Parks and Access to the Countryside Act 1949(101); and

(b) section 85 of the Countryside and Rights of Way Act 2008(102).

(3) The Secretary of State may approve a detailed design that departs from paragraph (1), following consultation with the relevant planning authority, the Environment Agency, Historic England and Natural England (on matters related to their statutory functions), provided that the Secretary of State is satisfied that any amendments to the design principles, the works plans, the engineering section drawings: plan and profiles and the engineering section drawings: cross sections would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(4) Where amended details are approved by the Secretary of State under paragraph (3), those details are deemed to be substituted for the corresponding design principles, works plans, engineering section drawings: plan and profiles and engineering section drawings: cross sections as the case may be and the undertaker must make those amended details available in electronic form for inspection by members of the public.

(5) No part of the authorised development comprised in scheme 06 is to commence until a detailed floodplain compensation scheme for that part has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority and the Environment Agency.

(6) The floodplain compensation scheme prepared under paragraph (5) must provide suitable flood storage such that flood risk during construction and operation of scheme 06 to any land or property situated downstream is not increased as a result of flood waters that would be displaced by the Appleby to Brough scheme when compared to the baseline scenario as reported in the baseline hydraulic modelling agreed with the Environment Agency (in document HE565627-JBAU-XX-06-RP-HM-S3-P05-0001-Scheme6_Modelling_Report accepted on 15 May 2023) and arise from events with a magnitude up to and including the 1% annual exceedance probability, plus allowance for the climate change in line with the Environment Agency guidance applicable on the date when this Order was made.

(7) The floodplain compensation scheme approved under paragraph (5) must be implemented and maintained for the lifetime of scheme 06 unless otherwise agreed with the Environment Agency.

(8) The undertaker must not commence construction of any of the viaducts comprised in Work Nos. 0405-1A(xii), 0405-2A(x), 06-1C(vi) and 06-1C(x) until details of the design and external appearance of the viaducts have been submitted to approved in writing by the Secretary of State following consultation with the relevant planning authority.

(9) The undertaker must not commence the construction of Work No. 06-7 until detailed designs for these Works including the locations of any draining ponds and access roads and the associated ancillary works have been submitted to and approved in writing by the Secretary of State following consultation with the relevant planning authority.

(10) In this article, “commence” has the same meaning as in article 53(16).

Time limit for when development must begin

55.—(1) The authorised development must not begin later than the expiration of 5 years beginning with the date on which this Order comes into force.

(2) Section 155 (when development begins) of the 2008 Act applies to this article.

Signed by the authority of the Secretary of State for Transport

Natasha Kopala

Head of the Transport and Works Act Orders Unit

Department for Transport

7th March 2024