The A12 Chelmsford to A120 Widening Development Consent Order 2024

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the A12 Chelmsford to A120 Widening Development Consent Order 2024 and comes into force on 9th February 2024.

Interpretation

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

“the 1961 Act” means the Land Compensation Act 1961(1);

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1980 Act” means the Highways Act 1980(3);

“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981(4);

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

“the 1986 Regulations” means the Road Vehicles (Construction and Use) Regulations 1986(6);

“the 1990 Act” means the Town and Country Planning Act 1990(7);

“the 1991 Act” means the New Roads and Street Works Act 1991(8);

“the 2004 Act” means the Traffic Management Act 2004(9);

“the 2008 Act” means the Planning Act 2008(10);

“the 2016 Regulations and Directions” means the Traffic Signs Regulations and General Directions 2016(11);

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

“agricultural motor vehicle” has the meaning given in regulation 3(2) of the 1986 Regulations;

“Anglian Water” means Anglian Water Services Limited (company number 2366656) whose registered office is at Lancaster House, Lancaster Way, Ermine Business Park, Huntingdon, Cambridgeshire, PE29 6XU;

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

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

“book of reference” means the document of that description listed in Schedule 12 (documents to be certified) 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;

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

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

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

“classification of roads plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the classification of roads plans for the purposes of this Order;

“cycle track” has the same meaning as in section 329(1) (further provisions as to interpretation) of the 1980 Act(12) and for the purposes of this Order includes parts of a cycle track and includes ways which include a right of way on foot;

“de-trunking and stopping up plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the de-trunking and stopping up plans for the purposes of this Order;

“electronic transmission” means a communication transmitted—

(a)

by means of an electronic communications network; or

(b)

by other means but while in electronic form;

and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003(13);

“engineering drawings and sections” means the engineering section drawings and the structures engineering drawings and sections;

“engineering section drawings” means the document of that description listed in Schedule 12 (documents to be certified) certified as the engineering section drawings for the purposes of this Order;

“Environment Agency” means the body of that name created by section 1 of the Environment Act 1995(14) or any successor in function to it;

“environmental masterplan” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the environmental masterplan for the purposes of this Order;

“environmental statement” means the document of that description, the constituent parts of which are listed in Schedule 12 (documents to be certified), certified as the environmental statement for the purposes of this Order;

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

“highway” has the same meaning as in section 328(1) (meaning of “highway”) of the 1980 Act includes part of a highway;

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

“land plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the land plans for the purposes of this Order;

“limits of deviation” means the limits of deviation referred to in article 9 (limits of deviation);

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

“motor cycle” has the meaning given in regulation 3(2) of the 1986 Regulations;

“National Grid” means National Grid Electricity Transmission PLC (Company No. 2366977) whose registered office is at 1-3 Strand, London, WC2N 5EH;

“Network Rail” means Network Rail Infrastructure Limited (Company No. 02904587) whose registered office is at Waterloo General Office, London, United Kingdom, SE1 8SW;

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

“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);

“permanent works” means those works shown on the permanent works plans and described under the heading “Permanent Works” in Schedule 1;

“permanent works plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the permanent works plans for the purposes of this Order and forming parts of the works plans;

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

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

“retained and removed vegetation plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the retained and removed vegetation plans for the purposes of this Order;

“revocation of existing traffic orders plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the revocation of existing traffic orders plans for the purposes of this Order;

“special category land plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the special category land plans for the purposes of this Order;

“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(16) (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

“streets, rights of way and access plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the streets, rights of way and access plans for the purposes of this Order;

“structures engineering drawings and sections” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the structures engineering drawings and sections for the purposes of this Order;

“temporary works” means those works shown on the temporary works plans and described under the heading “Temporary Works” in Schedule 1;

“temporary works plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the temporary works plans for the purposes of this Order and forming part of the works plans;

“traffic authority” has the same meaning as in section 121A(17) (traffic authorities) of the 1984 Act;

“traffic regulation measures movement restrictions plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the traffic regulation measures movement restrictions plans for the purposes of this Order;

“traffic regulation measures speed limits plans” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the traffic regulation measures speed limits plans for the purposes of this Order;

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

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

(a)

section 10(18) (general provision as to trunk roads) or section 19(1)(19) (certain special roads and other highways to become trunk roads) of the 1980 Act;

(b)

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

(c)

an order granting development consent; or

(d)

any other enactment;

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

“utilities works” means those works shown on the permanent works plans and described under the heading “Utilities Works” in Schedule 1;

“utilities works plans” means the document of that description listed in Schedule 12 (documents to be certified), certified by the Secretary of State as the utilities works plans for the purposes of this Order and forming part of the works plans;

“variable speed limit sign” in relation to a vehicle, means a traffic sign of the type shown in diagram 670 or 671 in Part 2 of Schedule 10 to the 2016 Regulations and Directions which—

(a)

is placed on or near any part of a road which is specified in column (2) of the table in Part 7 of Schedule 3 to this Order;

(b)

is directed at traffic on the carriageway on which the vehicle is being driven; and

(c)

is displayed as a variable message sign by light-emitting characters and symbols;

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

“works plans” means the document of that description, the constituent parts of which are listed in Schedule 12 (documents to be certified) 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.

(3) 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.

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

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

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

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

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

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

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

(9) References in this Order to the expression “includes” may be construed without limitation, unless so construing would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

Disapplication of legislative provisions

3.—(1) The provisions of the Neighbourhood Planning Act 2017(20) insofar as they relate to temporary possession of land under articles 40 (temporary use of land for carrying out the authorised development) and 41 (temporary use of land for maintaining the authorised development) do not apply in relation to the construction of work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within the maintenance period defined in article 41(13), any maintenance of any part of the authorised development.

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

(a) section 32 (variation of awards) of the Land Drainage Act 1991(21); and

(b) the provisions of any byelaws made under section 66(22) (powers to make byelaws) of the Land Drainage Act 1991.

Maintenance of drainage works

4.—(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(1) (interpretation) of the Land Drainage Act 1991(23).

PART 2 PRINCIPAL POWERS

Development consent etc. granted by the Order

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

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

Maintenance of authorised development

6.  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.

Application of the 1990 Act

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

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

Planning permission

8.  If planning permission is issued pursuant to the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is—

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

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

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

Limits of deviation

9.—(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 article 25 (protective work to buildings) or 26 (authority to survey and investigate land), construct the authorised development within the Order limits.

(2) Subject to paragraph (3), in constructing or maintaining the permanent works comprised in the authorised development and shown on the permanent works plans the undertaker may deviate laterally from the lines or situations shown on the permanent works plans, within the limits of deviation for permanent works.

(3) In constructing and maintaining the—

(a) flood mitigation works; and

(b) borrow pits restoration works

shown on the permanent works plans, the undertaker may deviate laterally within the limits of deviation for those works shown on those plans.

(4) In constructing the footpaths, cycle tracks, footways and bridleways referred to in article 14(5) (classification of roads, etc.) or the new streets or private means of access referred to in article 19(2)(a) (permanent stopping up and restriction of use of streets and private means of access) the undertaker may, so far as the undertaker considers it necessary or convenient, deviate laterally from the routes shown on the streets, rights of way and access plans to the extent of the limits of deviation shown on those plans.

(5) In constructing or maintaining the linear works, the undertaker may deviate vertically from the levels shown on the engineering section drawings—

(a) upwards to any extent not exceeding 1 metre, or, in relation to Work Nos. 45(b) and 74(a) upwards to any extent not exceeding 1.5 metres; and

(b) downwards to any extent not exceeding 1 metre.

(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, following consultation with—

(a) the relevant planning authority; and

(b) in respect of the authorised development comprising highways other than a special road or a trunk road, the relevant local highway authority,

certifies accordingly that a deviation in excess of these limits would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(7) Subject to paragraphs (2) to (6), in constructing 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 constructing and maintaining the temporary works shown on the temporary works plans the undertaker may so far as the undertaker considers it necessary or convenient deviate laterally from the lines or situations shown on the temporary works plans to the extent of the limits of deviation - temporary works shown on those plans.

(9) In constructing and maintaining the utilities works shown on the utilities works plans the undertaker may so far as the undertaker considers it necessary or convenient deviate laterally from the lines or situations shown on the utilities works plans to the extent of the limits of deviation - utilities shown on those plans.

(10) In this article, references to “linear works” are references to any works shown on the permanent works plans by way of a centreline.

Benefit of Order

10.—(1) Subject to article 11 (consent to transfer benefit of Order) and paragraph (2), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.

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

Consent to transfer benefit of Order

11.—(1) Subject to paragraph (5), the undertaker may with the written consent of the Secretary of State—

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

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

(2) Where an agreement has been made in accordance with paragraph (1), references in this Order to the undertaker, except in paragraph (3), include 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,

(4) If the benefit of the provisions of this Order relating to compulsory acquisition is transferred or granted to a transferee or grantee pursuant to this article and the transferee or grantee exercises those powers then the undertaker alone is liable for any compensation that is payable to another party as a consequence of the exercise of those powers by the transferee or grantee.

(5) The consent of the Secretary of State is not required under this article, where the transfer or grant is made to—

(a) Anglian Water for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U1, U2B, U3C, U12A, U13, U25, U26, U29A, U32, U33, U36, U39, U45, U46, U59, U62, U63A, U68, U72, U73, U73A, U74, U85, U85A, U85B, U102, U104A, U106A, U141, U141A, U142, U143, U145A, U146B, U146C, U147A, U147D, U148, U156, U165, U167A, U184A, U186A, U191, U192, U193A, U199, U200 and U208;

(b) BT for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U5, U7, U8, U9, U11, U14, U15, U16, U17, U18, U19, U20, U22, U27, U28, U30, U37, U40, U41, U43, U48, U51, U53, U55, U56, U64, U75, U77, U79, U83, U86, U88, U91, U92, U93, U94, U96, U99, U100, U101, U105, U108, U109, U110, U111, U111A, U111B, U112, U114, U115, U116, U119, U122, U123, U124, U125, U126, U128A, U129, U133, U134, U138, U139, U145, U146, U147, U147B, U149, U150, U152, U153, U155, U161, U162, U167, U168, U169, U174, U175, U178, U179, U181, U182, U183, U184, U185, U186, U188, U189, U190, U193, U194, U195, U200A, U201, U203 and U206;

(c) Cadent Gas for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U2, U3, U34, U42, U69, U76, U81, U89, U90, U98, U103, U104, U113, U157, U158, U166 and U170;

(d) Northumbrian Water for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U3A, U10A, U10B, U10C, U57, U58, U60, U62A, U65, U67, U70, U82, U85A, U87, U95, U117 and U132;

(e) UKPN for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U2A, U3B, U4, U10, U20A, U23, U24, U29, U31, U37A, U38, U38A, U47, U50, U50A, U52, U54, U61, U63, U66, U71, U78, U84, U84A, U97, U107, U118, U127, U128, U130, U131, U135, U136, U144, U146A, U147C, U159, U160, U163, U166A, U173, U180, U187, U196, U197, U198, U204 and U205;

(f) Verizon for the purposes of undertaking any works relating to its apparatus set out in Work No. U12B;

(g) Virgin Media for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U12, U21, U22A, U35, U44, U121, U124A, U137, U154, U172, U177 and U202; and

(h) Vodafone for the purposes of undertaking any works relating to its apparatus set out in Work Nos. U6, U49, U80, U120, U140, U151, U164, U171, U176 and U207.

(6) In this article—

“BT” means British Telecommunications Plc (company number 1800000), whose registered office is 1 Braham Street, London, United Kingdom, E1 8EE;

“Northumbrian Water” means Northumbrian Water Limited (Company No. 02366703) whose registered office is at Northumbria House, Abbey Road, Pity Me, Durham, DH1 5FJ;

“UKPN” means UK Power Networks (Operations) Limited (company number 03870728), whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP;

“Verizon” means Verizon UK Limited (company number 02776038) whose registered office is at Reading International Business Park, Basingstoke Road, Reading, RG2 6DA;

“Virgin Media” means Virgin Media Limited (company number 2591237) whose registered office is at 500 Brook Drive, Reading RG2 6UU; and

“Vodafone” means Vodafone Group Plc (company number 1833679) whose registered office is at Vodafone House, The Connection, Newbury, Berkshire RG14 2FN;

PART 3 STREETS

Application of the 1991 Act

12.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—

(a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act(24); or

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

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

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

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

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

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

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

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

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

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

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

(i) Schedule 3A(31) (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 stopping up, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 18 (temporary alteration, diversion, prohibition and restriction of the use of streets) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

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

(a) section 54(32) (advance notice of certain works), subject to paragraph (6);

(b) section 55(33) (notice of starting date of works), subject to paragraph (6);

(c) section 57(34) (notice of emergency works);

(d) section 59(35) (general duty of street authority to co-ordinate works);

(e) section 60(36) (general duty of undertakers to co-operate);

(f) section 68(37) (facilities to be afforded to street authority);

(g) section 69(38) (works likely to affect other apparatus in the street);

(h) section 75(39) (inspection fees);

(i) section 76 (liability for cost of temporary traffic regulation); and

(j) 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(40) and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a restriction, alteration or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 13 (construction and maintenance of new, altered or diverted streets and other structures)—

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

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

(c) has effect in relation to maintenance works which are street works within the meaning of the 1991 Act to which the provisions of Part 3 of the 1991 Act apply.

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

13.—(1) Any highway (other than a trunk road) to be constructed under this Order must be completed to the reasonable satisfaction of the relevant local highway authority in whose area the highway lies and, unless otherwise agreed in writing with the relevant local highway authority, the highway must be maintained by and at the expense of the relevant local highway authority from its completion.

(2) Where a highway (other than a trunk road) is altered or diverted under this Order, the altered or diverted part of the highway must be completed to the reasonable satisfaction of the relevant local highway authority and, unless otherwise agreed in writing with the relevant local highway authority, that part of the highway must be maintained by and at the expense of the relevant local highway authority from its completion.

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

(a) section 265(41) (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 relevant local highway authority, be maintained by and at the expense of the relevant local highway authority from the date of de-trunking.

(4) In the case of a bridge constructed under this Order to carry a highway (other than a trunk road) over a trunk road, the highway surface (being those elements over the waterproofing membrane) must be maintained by and at the expense of the relevant local highway authority unless otherwise agreed in writing between the undertaker and the relevant local highway authority, and the remainder of the bridge, including the waterproofing membrane, the structure below the waterproof membrane and the parapets must be maintained by and at the expense of the undertaker.

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

(6) For the purposes of a defence under paragraph (5), the court must in particular have regard to the following matters—

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

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

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

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

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

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

Classification of roads, etc.

14.—(1) On the date on which the roads described in Part 1 (trunk roads) of Schedule 3 (classification of roads etc.) are completed and open for traffic, they are to become trunk roads as if they had become so by virtue of an order under section 10(2)(42) (general provision as to trunk roads) of the 1980 Act specifying that date as the date on which they were to become trunk roads.

(2) On the date on which the roads described in Part 2 (classified A roads), Part 3 (classified B roads) and Part 4 (classified C roads) of Schedule 3 are completed and open for traffic, they are to become classified roads for the purpose of any enactment or instrument which refers to highways classified as classified roads as if such classification had been made under section 12(3) (general provision as to principal and classified roads) of the 1980 Act.

(3) On and after the date on which the roads described in Part 5 (unclassified roads) of Schedule 3 are completed and open for traffic, they are to become unclassified roads for the purpose of any enactment or instrument which refers to roads which are not classified roads.

(4) On such day as the undertaker may determine, the orders specified in column (3) of Part 12 (revocations & variations of existing traffic regulation orders) of Schedule 3 are to be varied or revoked as specified in the corresponding row of column (4) of that Part in respect of the lengths of roads specified in the corresponding row of column (2) of that Part.

(5) Subject to article 9(4) (limits of deviation) unless otherwise agreed in writing with the relevant local highway authority, the footpaths, cycle tracks, footways and bridleways set out in Part 13 (footpaths, cycle tracks, footways and bridleways) of Schedule 3 and identified on the streets, rights of way and access plans are to be constructed by the undertaker in the specified locations and open for use from the date on which the authorised development is open to traffic.

(6) On such day as the undertaker may determine, the roads described in Part 14 (roads to be de-trunked) of Schedule 3 are to cease to be trunk roads as if they had ceased to be trunk roads by virtue of an order made under section 10(2) of the 1980 Act specifying that date as the date on which they were to cease to be trunk roads.

(7) The undertaker may only make a determination for the purposes of paragraph (6) with the consent of the Secretary of State, who must consult the relevant local highway authority as to the date and as to whether the highway to be de-trunked is of a reasonably satisfactory standard for use as a local highway.

(8) 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.

Speed limits

15.—(1) On and after the date on which the roads specified in the table in Part 6 (speed limits) of Schedule 3 (classification or roads etc) are open for traffic, no person is to drive any motor vehicle at a speed exceeding the limit in miles per hour specified in column (3) of that table (or the national speed limit where so specified) along the lengths of road identified in the corresponding row of column (2) of that table.

(2) Where the words “national speed limit” appear in column (3) of the table in Part 6 of Schedule 3, on and after the date on which the lengths of road identified in the corresponding row of column (2) of that table are open to traffic the national speed limit will apply to those lengths of roads.

(3) On and after the date on which the roads specified in Part 7 (variable speed limits) of Schedule 3 are open for traffic no person is to drive any motor vehicle on the lengths of road identified in column (2) of that Part at a speed exceeding the lesser of—

(a) the national speed limit (if no limit in miles per hour is indicated by a variable message sign); or

(b) the limit in miles per hour indicated by a speed limit sign displayed on a variable message sign, if one is so indicated.

(4) A section of road is subject to a variable speed limit in relation to a vehicle being driven along it if—

(a) the section of road is identified in column (2) of Part 7 (speed limits) of Schedule 3 as being subject to a variable speed limit in column (3) of that Part;

(b) the vehicle has passed a speed limit sign displayed on a variable message sign; and

(c) the vehicle has not subsequently passed—

(i) another speed limit sign indicating a different speed limit; or

(ii) a traffic sign which indicates that the national speed limit is in force.

(5) For the purposes of paragraph (3)—

(a) the speed limit indicated by a variable message sign is the speed shown at the time the vehicle passes the sign, or, if higher, the speed limit shown by the sign ten seconds before the vehicle passed the sign;

(b) if, ten seconds before the vehicle passed it, no speed limit in miles per hour is indicated by a variable message sign, the national speed limit applies.

(6) On and after the date on which the roads specified in the tables in Parts 6 (speed limits) and 7 (variable speed limits) of Schedule 3 are open for traffic, where the words “Removal of restricted road status” appear in column (3) of those tables, those lengths of road will cease to be restricted roads as if, on that date, a direction had been made under section 82(2)(a) (what roads are restricted roads) of the 1984 Act.

(7) 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(43) when used in accordance with regulation 3(5) of those Regulations.

(8) The application of paragraphs (1) to (6) may be varied or revoked by any instrument under any enactment which provides for the variation or revocation of such matters, including by an instrument made under the 1984 Act where the matter in question could have been included in an order made under that Act.

(9) In this article—

“national speed limit” has the same meaning as in Schedule 1 to the 2016 Regulations and Directions and a traffic sign which indicates that the national speed limit applies means a traffic sign of the type shown in diagram 671 in Part 2 of Schedule 10 to the 2016 Regulations and Directions which is—

(a)

placed on or near a road; and

(b)

directed at traffic on the carriageway on which the vehicle is being driven,

where “road” includes the adjacent hard shoulder and verge and any lay by;

“speed limit sign” in relation to a vehicle, means a traffic sign of the type shown in diagram 670 in Part 2 of Schedule 10 to the 2016 Regulations and Directions which is—

(a)

situated on or near any part of a road specified in column (2) of the table in Part 1 (speed limits) of Schedule 10 to this Order as being subject to a variable speed in limit in column (3) of that table; and

(b)

directed at traffic on the carriageway on which the vehicle is being driven;

“variable message sign” has the meaning given by Schedule 1 (definitions) to the 2016 Regulations and Directions;

Power to alter layout etc. of streets

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

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

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

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

(d) make and maintain passing places.

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

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

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

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

(4) If a street authority which receives an application for consent under paragraph (3) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted consent.

(5) Any application to which this article applies must include a statement that the provisions of paragraph (4) apply to that application.

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

Street Works

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

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

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

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

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

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

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

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

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

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

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

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

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

Temporary alteration, diversion, prohibition and restriction of the use of streets

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

(a) divert the traffic from the street; and

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

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

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

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

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

(6) If a street authority which receives an application for consent under paragraph (4) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted consent.

(7) Any application to which this article applies must include a statement that the provisions of paragraph (6) apply to that application.

Permanent stopping up and restriction of use of streets and private means of access

19.—(1) Subject to the provisions of this article, the undertaker may, in connection with the construction of the authorised development, stop up each of the streets and private means of access shown on the streets, rights of way and access plans and the de-trunking and stopping up plans and specified in columns (1) and (2) of Parts 1, 2, 4 and 6 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to the extent specified and described in column (3) of those Parts of that Schedule.

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

(a) subject to article 9(4) (limits of deviation) the new street or private means of access to be constructed and substituted for it, which is specified in column (4) of those Parts of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

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

(3) No street or private means of access specified in columns (1) and (2) of Parts 1 and 6 of Schedule 4 (being a highway or private means of access to be stopped up for which no substitute is to be provided) is to be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the land which abuts on either side of the street or private means of access to be stopped up.

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

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

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

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

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

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

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

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

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

(7) This article is subject to article 43 (apparatus and rights of statutory undertakers in stopped up streets).

Public rights of way

20.—(1) The public rights of way identified in columns (1) and (2) of Parts 1 and 2 of Schedule 4 (being highways to be stopped up) and shown on the streets, rights of way and access plans, are extinguished on the date of the expiry of the notice given under paragraph (2).

(2) The undertaker must erect a site notice at each end of each of the rights of way to be extinguished in accordance with paragraph (5) no less than 28 days prior to the extinguishment of the right of way in question.

(3) The lengths of highway which may be provided under this Order are described in Part 3 (new highways which are otherwise to be provided) of Schedule 4.

Access to works

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

Clearways, prohibitions and restrictions

22.—(1) Except as provided in paragraph (6), on an after such day as the undertaker may determine, no person is to cause or permit any vehicle to stop on any part of the lengths of road described in column (2) of Part 8 (traffic regulation measures (clearways)) of Schedule 3 (classification of roads, etc.) and identified on the traffic regulation measures movement restrictions plans where it is identified in the corresponding row of column (3) of that Part that such lengths of road are to become a clearway, or that the stopping of vehicles is otherwise prohibited, except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(2) Except as provided in paragraph (10), on and after such day as the undertaker may determine, no person is to cause or permit any vehicle to proceed on any part of the lengths of road described in column (2) of Part 9 (traffic regulation measures (prohibitions)) of Schedule 3 and identified on the traffic regulation measures movement restrictions plans where it is identified in the corresponding row of column (3) of that Part that such lengths of road are to be subject to a width restriction, if the width of the vehicle exceeds the width specified in column (3) of that Part, except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(3) Except as provided in paragraph (10), on and after such day as the undertaker may determine, no person is to proceed or cause or permit any vehicle to proceed on any part of the lengths of road described in column (2) of Part 9 (traffic regulation measures (prohibitions)) of Schedule 3 (classification of roads, etc.) and identified on the traffic regulation measures movement restrictions plans in contravention of a prohibition set out in the corresponding row of column (3) of that Part except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(4) Except as provided in paragraph (11), on and after such day as the undertaker may determine, no person is to proceed on or cause or permit any vehicle to enter a road specified in column (2) of Part 10 (traffic regulation measures (no entry)) of Schedule 3 and identified on the traffic regulation measures movement restrictions plans from the road which is identified in column (3) of that Part where it is identified in the corresponding row of column (4) of that Part (by the words “No Entry”) that there is a prohibition on such entry, except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(5) Except as provided in paragraphs (6) to (9), on and after such a day as the undertaker may determine, no person is to cause or permit any vehicle to wait on any part of the lengths of road described in column (2) of Part 11 (traffic regulation measures (waiting restrictions)) of Schedule 3 and identified on the traffic regulation measures movement restrictions plans during the periods specified in column (3) of that Part, except upon the direction of, or with the permission of, a uniformed constable or civil enforcement officer.

(6) Nothing in paragraphs (1) or (5) applies—

(a) to render it unlawful to cause or permit a vehicle to stop or 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(44); 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(45); or

(iv) by a universal service provider for the purposes of providing a universal postal service as the Postal Services (Universal Postal Service) Order 2012(46); or

(c) in relation to a vehicle stopping or 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.

(7) Nothing in paragraph (5) applies in relation to a vehicle waiting—

(a) to enable a person to board or alight from the vehicle;

(b) while any gate or other barrier at the entrance to premises to or from which the vehicle requires access, or from which it has emerged, is opened or closed, if it is not reasonably practicable for the vehicle to wait otherwise;

(c) to enable goods to be loaded or unloaded to or from the vehicle;

(d) where a disabled person’s badge and a parking disc are displayed in the relevant position, and the driver or the person in charge of the vehicle has marked the time at which the period of waiting began, for a period not exceeding three hours (not being a period separated by an interval of less than one hour from a previous period of waiting by the same vehicle in the same road) but only if that vehicle has been or is about to be driven or used by the person to whom the badge has been issued or, as the case may be, used for the carrying of a disabled person as a passenger (except where the prohibition of waiting does not relate to “no waiting except taxis, ambulances or police vehicles”);

(e) where the traffic authority for the road has given permission by means of a dispensation issued under paragraph (8) to be displayed in the front or nearside of the vehicle and which includes information to enable the driver to be contacted in an emergency, provided the vehicle is not causing an obstruction by doing so, and that the vehicle can be moved if the driver is requested to do so by a uniformed constable or a civil enforcement officer;

(f) where the vehicle is being used in connection with essential work at adjacent premises for the purpose of undertaking emergency glazing repair to those premises; or

(g) where the vehicle is being loaded or unloaded while it is in actual use in connection with—

(i) the removal of furniture from one office or dwelling to another, or

(ii) the removal of furniture from such premises to a depository or to such premises from a depository,

if it is not practicable to use the vehicle for such purpose in any other road.

(8) Upon written application on a form issued by and obtainable from the traffic authority any person duly authorised by the traffic authority may issue a dispensation to exempt that vehicle from a prohibition of waiting on any part of the roads described in paragraph (5).

(9) No person is to cause or permit any vehicle to wait on any part of the lengths of roads described in paragraph (5) 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.

(10) Nothing in paragraphs (2) and (3) applies to render it unlawful to cause or permit a vehicle to proceed on any of the lengths of roads described in those paragraphs, for so long as may be necessary to enable that vehicle to be used in connection with—

(a) the removal of any obstruction to traffic;

(b) the maintenance, improvement, reconstruction or operation of the road in question;

(c) the laying, erection, inspection, maintenance, alteration, repair, renewal or removal in or near the road in question 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(47); or

(d) any building operation or demolition.

(11) Nothing in paragraph (4) applies to render it unlawful to cause or permit a vehicle to enter a road in contravention of that paragraph, if it is necessary to do so to enable that vehicle to be used in connection with—

(a) the removal of any obstruction to traffic; or

(b) the maintenance, improvement, reconstruction or operation of the road.

(12) Paragraphs (1) to (11) 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.

(13) In this article—

“civil enforcement officer” means an individual employed as a civil enforcement officer under section 76 (civil enforcement officers) of the 2004 Act;

“disabled person’s badge” and “parking disc” have the same meaning as in the Local Authorities’ Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000(48);

“in the relevant position”—

(a)

in respect of a disabled persons badge or parking ticket, means—

(i)

the badge or parking ticket is exhibited on the dashboard or facia of the vehicle so that the front of the badge or parking ticket is clearly legible from the outside of the vehicle; or

(ii)

where the vehicle is not fitted with a dashboard or facia, the badge or parking ticket is exhibited in a conspicuous position on the vehicle,

so that the front of the badge or parking ticket is clearly legible from the outside of the vehicle;

(b)

in respect of a disabled person’s parking disc, means—

(i)

the disc is exhibited on the dashboard or facia of the vehicle; or

(ii)

where the vehicle does not have a dashboard or facia, the disc is exhibited in a conspicuous position on the front near side of the vehicle,

so that when marked to show the quarter hour period during which a period of waiting began, that period is clearly legible from the outside of the vehicle; and

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

Traffic Regulation

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

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

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

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

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

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

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

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

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

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

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

(a) given not less than—

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

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

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

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

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

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

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

(ii) the local authority in whose area the road is situated, as an order under section 32 (power of local authorities to provide parking spaces) of the 1984 Act(49)

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 (2) within a period of 24 months from the opening of the authorised development.

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

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

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

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

(12) Any application to which this article applies must include a statement that the provisions of paragraph (11) apply to that application.

PART 4 SUPPLEMENTAL POWERS

Discharge of water

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

(2) Any dispute arising from the making of connections to or use of a public sewer or drain by the undertaker under paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(50).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The undertaker must not make any opening into any public sewer or drain except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

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

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

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

(7) Any application to which this article applies must include a statement that the provisions of paragraph (6) apply to that application.

(8) 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(51).

(9) 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 used both in this article and in the Water Resources Act 1991(52) have the same meaning as in that Act.

Protective work to buildings

25.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building which may be affected by the authorised development as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or

(b) after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage, and place on, leave on and remove from the land any apparatus and equipment for use in connection with the survey.

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

(a) enter the building and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (1) to carry out protective works to a building;

(b) a right under paragraph (3) to enter a building and land within its curtilage;

(c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a right under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 61 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.

(8) Where—

(a) protective works are carried out under this article to a building; and

(b) within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152(53) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) Section 13(54) (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(55) (compulsory acquisition provisions) of the 2008 Act.

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

(12) In this article “protective works” in relation to a building means—

(a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the carrying out, maintenance or use of the authorised development; and

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate the land

26.—(1) The undertaker may for the purposes of the construction, operation or maintenance of the authorised development enter on any land shown within the Order limits or which may be affected by the authorised development and, where reasonably necessary, any land which is adjacent to, but outside the Order limits, and—

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

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

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

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making trial holes and boreholes.

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

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

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

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

(4) No trial holes are to be made under this article—

(a) in land located within the highway boundary without the consent of the relevant local highway authority; or

(b) in a private street without the consent of the street authority.

but such consent must not be unreasonably withheld.

(5) 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.

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

(7) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

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

(a) under paragraph (4)(a) in the case of a local highway authority; or

(b) under paragraph (4)(b) in the case of a street authority,

that authority is deemed to have granted consent.

(9) Any application to which this article applies must include a statement that the provisions of paragraph (6) apply to that application.

PART 5 POWERS OF ACQUISITION

Compulsory acquisition of land

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

(2) This article is subject to—

(a) article 30(2) (compulsory acquisition of rights and imposition of restrictive covenants);

(b) article 40(9) (temporary use of land for carrying out the authorised development); and

(c) article 52 (crown rights).

Compulsory acquisition of land – incorporation of the mineral code

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

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

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

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

Time limit for exercise of authority to acquire land compulsorily

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

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

(b) no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 37 (application of the 1981 Act).

(2) The authority conferred by article 40 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker from remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights and imposition of restrictive covenants

30.—(1) Subject to the following paragraphs of this article, the undertaker may acquire such rights over the Order land or impose restrictive covenants affecting the land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 27 (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 column (1) of Schedule 5 (land in which new rights etc. may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of restrictive covenants as may be required for the purpose specified in relation to that land in column (2) of that Schedule and relating to that part of the authorised development specified in column (3) of that Schedule.

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

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

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

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

(5) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Private rights over land

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

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

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

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

whichever is earlier.

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

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

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

(6) This article does not apply in relation to any right to which section 138(61) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 42 (statutory undertakers) applies.

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

(a) any notice given by the undertaker before—

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

(ii) the undertaker’s appropriation of it;

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

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

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

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

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

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

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

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

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

(10) The new private means of access which may be provided under this Order are described in Part 5 (new private means of access which are to be provided) of Schedule 4.

Power to override easements and other rights

32.—(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(62) (further provision as to compensation for injurious affection) of the 1965 Act; and

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

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

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

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

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

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

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

(6) In this article “authorised activity” means—

(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).

Disregard of certain interests and improvements

33.—(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

34.—(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 30 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—

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

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

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

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

No double recovery

35.  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.

Modification of Part 1 of the 1965 Act

36.—(1) Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied to this Order by section 125(63) (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4A(1)(64) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 29 (time limit for exercise of authority to acquire land compulsorily) of the A12 Chelmsford to A120 Widening Development Consent Order 2024”.

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

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

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

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 29 (time limit for exercise of authority to acquire land compulsorily) of the A12 Chelmsford to A120 Widening Development Consent Order 2024”.

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

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

“(2) But see article 38 (acquisition of subsoil or airspace only) of the A12 Chelmsford to A120 Widening Development Consent Order 2024, which excludes the acquisition of subsoil or airspace only from this Schedule;”

(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 article 25 (protective work to buildings), 40 (temporary use of land for carrying out the authorised development) or 41 (temporary use of land for maintaining the authorised development) of the A12 Chelmsford to A120 Widening Development Consent Order 2024.”.

Application of the 1981 Act

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

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

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

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

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

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

(6) In section 5B(69) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 29 (time limit for exercise of authority to acquire land compulsorily) of the A12 Chelmsford to A120 Widening Development Consent Order 2024”.

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

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

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

“(2) But see article 38(3) (acquisition of subsoil or airspace only) of the A12 Chelmsford to A120 Widening 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 36 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil or airspace only

38.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1) of article 27 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

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

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

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 36 (modification of Part 1 of the 1965 Act));

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

(c) section 153(4A)(73) (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 under or over streets

39.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

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

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

(a) any subway or underground building; or

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

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is a statutory undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out the authorised development

40.—(1) The undertaker may, in connection with the carrying out of the authorised development, but subject to article 29 (time limit for exercise of authority to acquire land compulsorily)—

(a) enter on and take possession of—

(i) the land specified in column (1) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule relating to the part of the authorised development specified in column (3) of that Schedule; and

(ii) any other Order land in respect of which no notice of entry has been served under section 11(74) (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(75) (execution of declaration) of the 1981 Act;

(b) remove any electric line, electrical plant, structures, apparatus,buildings and vegetation from that land,

(c) construct temporary works (including the provision of means of access) and buildings or structures on that land; and

(d) construct any works on that land as are mentioned in Schedule 1 (authorised development).

(2) Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).

(3) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 7; or

(b) in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—

(a) replace a building removed under this article;

(b) restore the land on which any permanent works have been constructed under paragraph (1)(d);

(c) remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development;

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

(e) remove or reposition any apparatus installed for or belonging to statutory undertakers; or

(f) remove or reposition any mitigation or accommodation works which are required after possession of the land is given up.

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article.

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

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession of the land.

(8) Subject to article 35 (no double recovery), nothing in this article affects any liability to pay compensation under section 152(76) (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(9) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not precluded from acquiring any part of the subsoil of or airspace over (or rights in the subsoil of or airspace over) that land under article 38 (acquisition of subsoil or airspace only).

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

(11) Section 13(77) (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.

(12) Paragraph (1)(a)(ii) does not authorise the undertaker to take temporary possession of any land which the undertaker is not authorised to acquire under article 27 (compulsory acquisition of land) or article 30 (compulsory acquisition of rights and imposition of restrictive covenants).

Temporary use of land for maintaining the authorised development

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

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

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

(c) construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

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

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

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and must explain the purpose for which entry is taken.

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

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

(b) the public; or

(c) the surrounding environment,

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

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

(6) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (5) does not prevent the undertaker giving up possession of the land.

(8) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

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

(10) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (8).

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

(12) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

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

Statutory undertakers

42.—(1) Subject to the provisions of article 30(2) (compulsory acquisition of rights and imposition of restrictive covenants), Schedule 11 (protective provisions) and paragraph (2), the undertaker may—

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

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

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

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

(b) article 43(2) (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

43.—(1) Where a street is stopped up under article 19 (permanent stopping up and restriction of use of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 19 (permanent stopping up and restriction of use of streets and private means of access) 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 of the 1991 Act, but instead—

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

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

(8) In this article—

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

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

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003(78).

Recovery of costs of new connections

44.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 42 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 41 (temporary use of land for maintaining the authorised development), any person who is—

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

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

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

(3) This article does not have effect in relation to apparatus to which article 43 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this paragraph—

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

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

Special category land

45.—(1) On the exercise by the undertaker of the relevant Order powers, the special category land identified in Part 1 of Schedule 8 is not to vest in the undertaker, and the undertaker may not acquire any rights over the special category (rights) land identified in Part 2 of Schedule 8 until the undertaker has acquired the replacement land identified in Part 4 of Schedule 8 and the Secretary of State (in consultation with the relevant planning authority) has certified that a scheme for the provision of the replacement land as open space and a timetable for the implementation of the scheme has been received from the undertaker.

(2) On the requirements of paragraph (1) being satisfied, the special category land identified in Part 1 of Schedule 8 is to vest in the undertaker and be discharged from all rights, trusts and incidents to which it was previously subject.

(3) On the requirements of paragraph (1) being satisfied, the undertaker may acquire the rights over the special category (rights) land identified in Part 2 of Schedule 8 and the said land is to be discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the said rights that are to be acquired.

(4) On the date on which the replacement land is laid out and provided in accordance with the requirements mentioned in paragraph (1), the replacement land is to vest in the persons in whom the special category land was vested immediately before it was vested in the undertaker and is to be subject to the same rights, trusts and incidents as attached to the special category land.

(5) In this article “the relevant Order powers” means the powers exercisable over the special category land by the undertaker under article 27 (compulsory acquisition of land) or article 30 (compulsory acquisition of rights and imposition of restrictive covenants).

PART 6 OPERATIONS

Felling or lopping of trees and removal of hedgerows

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

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

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

(2) In carrying out any activity authorised by paragraph (1) or (4) the undertaker must—

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

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

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

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

(a) remove any hedgerow described in Part 1 (removal of important hedgerows) or Part 2 (removal of other hedgerows) of Schedule 9 (hedgerows and trees); and

(b) subject to consultation with the relevant planning authority, remove any hedgerow within the Order limits that may be identified and that is not otherwise set out within Part 1 or Part 2 of Schedule 9.

(5) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997(79) and includes important hedgerows.

Trees subject to tree preservation orders, etc.

47.—(1) Subject to paragraph (2), the undertaker may fell or lop any tree described in Part 3 (trees subject to tree preservation orders) of Schedule 9, cut back its roots or undertake such other works described in column (2) of that Part of that Schedule relating to the relevant part of the authorised development described in that Part of that Schedule.

(2) The undertaker may only exercise the powers referred to in paragraph (1) if the undertaker reasonably believes it to be necessary in order to prevent the tree—

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

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

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

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

(b) the duty contained in section 206(1)(80) (replacement of trees) of the 1990 Act is not to apply although where possible the undertaker is to seek to replace any trees which are to be removed.

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

(5) The powers conferred by paragraph (1) may be exercised in relation to any tree or shrub that is situated within a conservation area designated under section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990(81).

(6) Before exercising the powers mentioned in paragraph (5), the undertaker is required to give written notice to the relevant planning authority of the intended works (with sufficient particulars to identify the tree and either—

(a) the relevant planning authority has indicated in writing that it has no objection to the works or that the works fall within an exemption in paragraph (7)(a) or (b); or

(b) six weeks have elapsed from the date of the notice and a tree preservation order has not been made in respect of the tree or shrub.

(7) Paragraph (5) does not apply—

(a) where consent would not be need for the proposed works if the tree or shrub were subject to a tree preservation order; or

(b) to any works which would be exempt in accordance with the regulations made under section 212(82) (disapplication of tree preservation offences) of the 1990 Act.

(8) The duty contained in section 213(1)(83) (enforcement of controls as respects trees in conservation areas) of the 1990 Act does not apply to the undertaker in carrying out the activity authorised by paragraphs (5) and (6).

(9) The authority given by paragraphs (5) and (6) constitutes an authorisation by an order granting development consent for the purpose of section 211(1A)(84) (preservation of trees in conservation areas) of the 1990 Act.

(10) In carrying out any activity authorised by this article, the undertaker must not unnecessarily damage any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

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

PART 7 MISCELLANEOUS AND GENERAL

Application of landlord and tenant law

48.—(1) This article applies to—

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

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Operational land for purposes of the 1990 Act

49.  Development consent granted by this Order 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 operational land for the purposes of that Act) of the 1990 Act.

Defence to proceedings in respect of statutory nuisance

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

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974(87); or

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

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

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990)(88) 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.

Removal of human remains

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

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

(3) Subject to paragraph (12), before any such remains are removed 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 for two successive weeks in a newspaper circulating in the area of the authorised development; and

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

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

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

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

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

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

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

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question 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 must remove the remains and as to the payment of the costs of the application.

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

(9) If—

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

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

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

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

subject to paragraph (10) the undertaker must remove the remains and cause them to be 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 are to be re-interred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

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

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

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

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

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

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

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

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

(a) may remove the remains;

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

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

(14) The removal 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.

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

(16) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857(89) does not apply to a removal carried out in accordance with this article.

Crown Rights

52.—(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 portion of the shore or bed of the sea or 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 not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

(c) belonging to a government department or held in trust for 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 purchase of any interest in any Crown land (as defined in the 2008 Act) for the time being held otherwise than by or on behalf of the Crown.

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

Use of private roads for construction

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

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

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

Disapplication of local legislation

54.—(1) The provisions of the Chelmer and Blackwater Navigation Act 1793—

(a) do not apply in relation to the construction of works carried out for the purpose of, or in connection with, the construction or maintenance of the authorised development; and

(b) are subject to—

(i) any acquisition of new rights and covenants under article 30 (compulsory acquisition of new rights and imposition of restrictive covenants);

(ii) the exercise of temporary powers over land included in article 40 (temporary use of land for carrying out the authorised development), or article 41 (temporary use of land for maintaining the authorised development).

(2) In this article “the Chelmer and Blackwater Navigation Act 1793” means the Public Act, 33 George III, C.93, entitled “An Act for making and maintaining a Navigable Communication between the Town of Chelmsford, or some Part of the Parish of Springfield in the County of Essex, and a Place called Collier’s Reach, in or near the River Blackwater, in the said County”.

Disapplication and modification of byelaws

55.—(1) The byelaws specified in column (1) of Schedule 10 (disapplication and modification of byelaws) are, to the extent specified in column (2) of that Schedule modified; or disapplied and do not apply insofar as they are inconsistent with a provision of, or a power conferred by, this Order.

(2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and insofar as (in particular)—

(a) it would make it an offence to take action, or not to take action, in pursuance of the power;

(b) action taken in pursuance of the power would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or

(c) action taken in pursuance of a power or duty under the provision would or might interfere with the exercise of any work authorised by this Order.

(3) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker or by virtue of this Order would amount to a contravention of a statutory provision of local application, the undertaker must as soon as reasonably practicable, and at any rate within 14 days of receipt of the notice, respond in writing setting out—

(a) whether the undertaker agrees that the action taken or proposed does or would contravene the provision of local application;

(b) if the undertaker does agree, the grounds (if any) on which the undertaker believes that the provision is excluded is by this article; and

(c) the extent of that exclusion.

Use of land between Bury Lane and Station Road, Hatfield Peverel

56.—(1) The undertaker may—

(a) use the relevant land; and

(b) authorise the use of the relevant land by any qualifying person,

for the passage on foot or with vehicles (with or without materials, plant and machinery) for the purposes of, or in connection with access to specified land.

(2) Every part of the relevant land is deemed to form part of a road for the purposes of article 23 (traffic regulation).

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

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

(5) In this article—

the “relevant land” means any part of the land within the plot 5/20a of the Order land as shown on the land plans and described in the book of reference;

“qualifying person” means any person authorised by the undertaker to use the relevant land; and

“specified land” means any land specified by the undertaker as being land to which qualifying persons require access over the relevant land.

Use of consecrated land

57.—(1) Sections 238 (use and development of consecrated land) and 239 (use and development of burial grounds) of the 1990 Act apply—

(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 acquired for the purposes of the authorised development (whether or not by agreement) the temporary use of land pursuant to articles 40 (temporary use of land for constructing the authorised development) or 41 (temporary use of land for maintaining the authorised development) so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order, without prejudice to the status of the land over which the right is exercised as consecrated land.

(2) In section 238(1) of the 1990 Act as applied by paragraph (1), the reference to “planning permission” includes this Order.

(3) In section 240(1) of the 1990 Act, the reference to “regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as is applicable to land or a right over land acquired under this Order, paragraphs (2) to (15) of article 51 (removal of human remains).

(4) In section 240(3) of the 1990 Act, the reference to “statutory undertakers” includes the undertaker and the reference to “any other enactment” includes this Order.

(5) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950(90) do not apply to the authorised development.

Protective provisions

58.  Schedule 11 (protective provisions) has effect.

Certification of documents, etc.

59.—(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents set out in Schedule 12 (documents to be certified) to the Secretary of State for certification as true copies of those plans and documents.

(2) Where any plan or document set out in Schedule 12 requires an amendment 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 document of which it is a copy.

Service of notices

60.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post;

(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

(c) with the consent of the recipient and subject to paragraphs (5) to (8) by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(91) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(c) the notice or document is legible in all material respects; and

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

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

Arbitration

61.  Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties, or failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

Signed by authority of the Secretary of State for Transport

Gareth Leigh

Head of the Transport and Works Act Orders Unit

Department for Transport

12th January 2024