The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014

PART 1 PRELIMINARY

Citation and Commencement

1.  This Order may be cited as the Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014 and shall come into force on 24th September 2014.

Interpretation

2.—(1) In this Order—

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

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

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

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

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

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

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

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

“access plans” means the plans certified as the access plans by the Secretary of State for the purposes of this Order and listed in part 3 of Schedule 2 (plans);

“agreed date” means the day agreed for the provision of further information pursuant to paragraph 4(5) of Schedule 17 (procedure for the discharge of requirements etc. and appeals);

“ancillary works” means the ancillary works described in Part 2 of Schedule 1 (authorised project) and any other works authorised by the Order and which are not development within the meaning of section 32 (meaning of development) of the 2008 Act;

“appeal documentation” means a copy of the application submitted to the discharging body and any supporting documentation which the undertaker may wish to provide;

“appeal parties” means the discharging authority, the undertaker, and (where relevant) a requirement consultee;

“approved plans” means the plans listed in Part 4 of Schedule 2 (plans) and such revised or supplemental plans as may be approved pursuant to the requirements;

“authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised project) and any other development authorised by articles 21 (remedial works to buildings, or apparatus or equipment) and 42 (statutory undertakers) of this Order, which is development within the meaning of section 32 of the 2008 Act;

“the authorised project” means the authorised development and the ancillary works;

“Authority” means the Port of London Authority;

“the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

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

“business day” means a day other than a Saturday or Sunday or public holiday in England;

“carriageway” has the same meaning as in the 1980 Act;

“city walkway” means a walkway in the City of London declared further to the City of London (Various Powers) Act 1967(9);

“completion of construction” means completion of construction of the authorised development so that the same is complete and has been commissioned pursuant to the relevant construction contract or contracts;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

“CSO” means a combined sewer overflow;

“discharging authority” means the body responsible for giving any consent, agreement or approval required by a requirement included in this Order or protective provision set out in Schedule 16 to this Order, or further to any document referred to in any requirement, or any licence condition in the deemed marine licence set out in Schedule 15 (deemed marine licence), or the local authority in the exercise of functions set out in sections 60 or 61 of the Control of Pollution Act 1974(10);

“environmental statement” means the environmental statement for the authorised project (January 2013) with document reference 6.2 together with the Errata to that environment statement with document references 9.04.01, 9.04.04, 9.04.05 and APP123, and the environmental statement update report (March 2014) with document reference APP208.01, submitted by Thames Water Utilities Limited to support its application for development consent;

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

“infrastructure provider” means any body designated by the Secretary of State for the Environment, Food and Rural Affairs or by the Water Services Regulation Authority (as the case may be) in respect of the authorised project or part(s) of the authorised project under or by virtue of Section 36D of the Water Industry Act 1991 (as inserted by Section 35 of the Flood and Water Management Act 2010) or any successor under a special administration order or otherwise;

“the land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order and listed in part 2 of Schedule 2 (plans);

“levels” means the levels shown on the sections;

“limits of deviation” means the limits referred to in article 6;

“the LoPS” means the London Permit Scheme for Roads and Street Works made pursuant to Part 3 of the Traffic Management Act 2004 (‘TMA’)(11) and the Traffic Management Permit Schemes (England) Regulations 2007(12) and which applies to a highway authority;

“maintain” includes inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct, demolish, replace or improve the authorised project, so that it is fit for the purpose for which it was originally constructed, and “maintaining” and “maintenance” shall be construed accordingly;

“mean high water level” means the level which is half way between mean high water springs and mean high water neaps;

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

“Order limits” means the limits shown on the works plans within which the authorised project may be carried out;

“owner” in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(13);

“permissive path” means any permissive path whether created by statute, agreement or otherwise;

“relevant planning authority” means the council of the relevant London Borough and any successors to its function as planning authority for the area in which the land to which the provisions of this Order apply is situated;

“relevant time limits” means the time limits prescribed in Schedule 17 (procedure for the discharge of requirements etc. and appeals) or set by the appointed person pursuant to Schedule 17;

“requirement consultee” means any body named in a requirement which is the subject of an appeal as a body to be consulted by the discharging authority in discharging that requirement;

“requirements” means those matters set out in Schedule 3 (requirements);

“the river” means so much of the river Thames, the Thames estuary, rivers, streams, creeks, watercourses and the sea as is within the Authority’s limits described in paragraph 2 of Schedule 1 to the 1968 Act (14);

“the Secretary of State” means the Secretary of State as specified in article 62 (meaning of Secretary of State) (or their successor);

“the sections” means the sections shown on the works plans;

“special administration” means special administration as defined in the Water Industry Act 1991 Sections 23 to 25 and in relation to an Infrastructure Provider paragraph 7 of Schedule 1 of the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013(15);

“start date” means the date on which the appeal parties are notified of the person appointed to determine an appeal made under Schedule 17 (procedure for the discharge of requirements etc. and appeals);

“statutory undertaker” means any person falling within section 127(8) of the 2008 Act;

“street” means a street within the meaning of section 48 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 of the 1991 Act;

“tree preservation order” has the meaning given in section 198 of the 1990 Act;

“Thames Water Utilities Limited” means Thames Water Utilities Limited as the statutory sewerage undertaker licensed under the Water Industry Act 1991(16) and statutory successors or any successor under a special administration order or otherwise;

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

“undertaker” means the person who has the benefit of this Order in accordance with article 8 (benefit of Order) and or 9 (transfer of benefit of Order) of this Order;

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

“the works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order and listed in part 1 of Schedule 2 (plans).

(2) References in this Order to the authorised project coming into use mean use of the authorised development for the purpose for which it was designed including commissioning.

(3) 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 air-space above its surface.

(4) All distances, directions, levels and lengths referred to in this Order are approximate. All distances for scheduled linear works referred to in this Order are measured along the centre line of the limit of deviation for that work. Internal diameters for tunnels and shafts are the approximate internal dimensions after the construction of a tunnel lining. Unless otherwise stated in Schedule 1 (authorised project), depths are specified to invert level and are measured from the proposed final ground level.

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

(6) References in this Order to points identified by letters or numbers shall be construed as references to points so lettered or numbered on the plan to which the reference applies.

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

(8) References in this Order to any statute, order, regulation or similar instrument shall be construed as a reference to the statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.

PART 2 WORKS PROVISIONS

Principal powers

Development consent etc. granted by the Order

3.  Subject to the provisions of this Order and to Schedule 3 (requirements) and Schedule 16 (protective provisions) to this Order the undertaker is granted—

(a) development consent for the authorised development; and

(b) consent for the ancillary works;

to be carried out within the Order limits and in accordance with the approved plans.

Authorisation of use

4.  Subject to the provisions of this Order and to the requirements the undertaker may operate and use the authorised project for the purposes for which it was designed.

Maintenance of authorised project

5.  The undertaker may at any time maintain the authorised project, except to the extent that this Order provides otherwise, and for the avoidance of doubt the power of maintenance provided by this article does not constitute the grant of development consent for any development not authorised by article 3 (development consent etc. granted by this order).

Limits of Deviation

6.—(1) In constructing or maintaining works 1a to 1d, 3b, 4b, 5b, 7, 10b, 11b, 12b, 14b, 15b, 16b and 20, the undertaker may deviate—

(a) laterally from the lines, situations or positioning of the authorised development shown or indicated on the works plans to the extent of the limits of deviation shown on the works plans; and

(b) vertically from the levels of the authorised development shown on the sections to any extent—

(i) not exceeding 3 metres upwards; or

(ii) downwards as may be found to be necessary or convenient.

Defence to proceedings in respect of statutory nuisance

7.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(17) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of Section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction of the authorised project and associated activities up to completion of construction and that the nuisance is attributable to the carrying out of the authorised project 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) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974; or

(b) is a consequence of complying with a requirement of this Order and that it cannot reasonably be avoided; or

(c) is a consequence of the construction of the authorised project before completion of construction and that it cannot reasonably be avoided.

(2) Section 61(9) of the Control of Pollution Act 1974 (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) and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), shall 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 project.

(3) The defence in this article shall not have effect after completion of construction.

Benefit of order

Benefit of Order

8.  Subject to article 9 (transfer of benefit of Order), the provisions of this Order shall have effect solely for the benefit of Thames Water Utilities Limited (save where the context requires otherwise) and any successor under a special administration order or otherwise.

Transfer of benefit of Order

9.—(1) The undertaker may transfer to an infrastructure provider any or all of the benefit of the provisions of this Order (save for the powers of compulsory acquisition in articles 28 (compulsory acquisition of land), 29 (compulsory acquisition of rights), 30 (acquisition of subsoil only), 31 (acquisition of land limited to subsoil lying more than 9 metres beneath surface) and 41 (acquisition of part of certain properties)) and such related rights for such period as may be necessary for the construction, operation or maintenance of the authorised project as may be agreed between the undertaker and the infrastructure provider.

(2) Notwithstanding any transfer under paragraph (1) above the undertaker may with the consent of the Secretary of State transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order (save for the powers of compulsory acquisition in articles 28 (compulsory acquisition of land), 29 (compulsory acquisition of rights), 30 (acquisition of subsoil only), 31 (acquisition of land limited to subsoil lying more than 9 metres beneath surface) and 41 (acquisition of part of certain properties)) and such related rights for such period as may be necessary for the construction, operation or maintenance of the authorised project as may be agreed between the undertaker and the transferee.

(3) Where a transfer has been made in accordance with paragraph (1) or (2) references in this Order to the undertaker, except in paragraphs (1) and (4), shall include references to the infrastructure provider or transferee.

(4) The exercise by a person of any benefits or rights conferred in accordance with any transfer under paragraph (1) or (2) shall—

(a) be subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by Thames Water Utilities Limited; and

(b) not prevent Thames Water Utilities Limited benefitting from those provisions of this Order notwithstanding that those provisions may also benefit the infrastructure provider or transferee.

(5) In determining an application for consent under paragraph (2) the Secretary of State shall have regard to—

(a) the importance of ensuring that the transferee has the necessary financial and other resources to undertake the authorised project in accordance with the restrictions, liabilities and obligations specified in paragraph (4)(a); and

(b) the need to secure (by way of performance bond or other measure) the performance by the transferee of its functions under this Order.

Streets and traffic regulations

Street works

10.—(1) The undertaker may, for the purposes of the authorised project, other than in respect of specified works subject to the LoPS as applied by the highway authority in whose area the undertaker seeks to carry out such works, enter on so much of any of the streets specified in Schedule 4 (streets subject to street works) as is 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) place and keep apparatus in or on the street;

(d) maintain, renew or alter the position of apparatus in or on the street or change its position;

(e) demolish, remove, replace and relocate any bus shelter and associated bus stop infrastructure;

(f) execute any works to provide or improve sight lines required by the highway authority;

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

(h) carry out re-lining and placement of new temporary markings; and

(i) execute any works required for or incidental to any works referred to in sub-paragraphs (a) to (h) above.

(2) Without limiting the scope of the powers conferred by paragraph (1) but subject to the consent of the street authority, which consent shall not be unreasonably withheld, the undertaker may, for the purposes of the authorised project, other than in respect of specified works subject to the LoPS as applied by the highway authority in whose area the undertaker seeks to carry out such works, enter on so much of any other street whether or not within the Order limits, for the purposes set out at paragraph (1) (a) to (i) (street works) and article 51(2) (miscellaneous provisions relating to the 1990 Act) shall apply.

(3) The authority given by paragraph (1) or (2) 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 (18).

(4) The provisions of sections 54 to 106 (save insofar as disapplied through the operation of article 56 (application, disapplication and modification of legislative provisions) and Schedule 19 (miscellaneous controls) part 1 to this Order) of the 1991 Act (19) apply to any street works carried out under paragraph (1) or (2).

(5) In Part 3 of the 1991 Act, provisions relating to major highway works which refer to the highway authority concerned shall, in relation to works which are major highway works, be construed as references to the undertaker.

(6) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

(7) The undertaker may not exercise the powers under this article after completion of construction.

Power to alter layout, etc., of streets

11.—(1) The undertaker may for the purposes of constructing the authorised project, other than in respect of specified works subject to the LoPS as applied by the highway authority in whose area the undertaker seeks to carry out such works, alter the layout of each of the streets specified in column (2) of Schedule 5 (streets subject to alteration of layout) (and carry out works ancillary to such alteration) in the manner specified in relation to that street in column (3).

(2) Without prejudice to the specific powers conferred by article 3 or paragraph (1) but subject to paragraph (3), the undertaker may, for the purposes of either constructing the authorised project or for works before completion of construction, other than in respect of specified works subject to the LoPS as applied by the highway authority in whose area the undertaker seeks to carry out such works, alter the layout of any other street (and carry out works ancillary to such alteration) whether or not within the Order limits and, without limiting 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, verge, or central reservation within the street;

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

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

(d) execute any works to widen or alter the alignment of pavements;

(e) execute any works of surfacing or re-surfacing of the highway; and

(f) execute any works necessary to alter existing facilities for the management and protection of pedestrians.

(3) The powers conferred by paragraph (2)—

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

(b) shall not be exercised without the consent (such consent not to be unreasonably withheld) of the street authority but such consent may be granted subject to reasonable conditions relating to highway matters.

(4) In Part 3 of the 1991 Act, provisions relating to major highway works which refer to the highway authority concerned shall, in relation to works which are major highway works, be construed as references to the undertaker.

(5) The provisions of sections 54 to 106 (save insofar as disapplied through the operation of article 55 (application, disapplication and modification of legislative provisions) and Schedule 19 (miscellaneous controls) part 1 to this Order) of the 1991 Act apply to works carried out under paragraph (1) or (2) to the extent that those works involve the breaking up or opening of a street, or any sewer, drain, or tunnel under it, or tunnelling or boring under a street

(6) The undertaker may not exercise the powers under this article after completion of construction.

Construction and maintenance of altered streets

12.—(1) Any street (other than any private streets) to be constructed under this Order shall be completed to the reasonable satisfaction of the street authority and shall, unless otherwise agreed with the street authority, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(2) Where a street is altered under this Order, the altered part of the street shall be completed to the reasonable satisfaction of the street authority and shall, unless otherwise agreed with the street authority, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(3) Where new land not previously part of the public highway is to form part of the public highway further to the provisions of this Order it shall, unless otherwise agreed with the street authority, be deemed as dedicated as part of the public highway on the expiry of a period of 12 months from its completion.

(4) 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 shall be 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.

(5) For the purposes of a defence under paragraph (4), the court shall in particular have regard to the following matters—

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

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

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

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

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

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

(6) In determining who is the street authority in relation to a street for the purposes of Part III of the New Roads and Street Works Act 1991, any obligation of the undertaker to maintain the street under paragraph (1) or (2) shall be disregarded.

Stopping up of streets

13.—(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised project, stop up each of the streets specified in column (2) of Schedule 6 (streets to be stopped up) to the extent specified in column (3) of that Schedule and shown on the relevant access plan.

(2) No street specified in column (2) of Schedule 6 (being a street to be stopped up) shall be wholly or partly stopped up under this article unless the condition specified in paragraph (3) is satisfied in relation to all the land which abuts on either side of the street to be stopped up.

(3) The condition referred to in paragraph (2) 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 concerned; or

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

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

(4) Where a street has been stopped up under this article—

(a) all rights of way over or along the street so stopped up shall be extinguished; and

(b) the undertaker may use for the purposes of the authorised project so much of the street as is stopped up under paragraph (1).

(5) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

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

Public rights of way and permissive paths

14.—(1) The public rights of way and permissive paths listed in column (2) of Schedule 7 (public rights of way and permissive paths to be extinguished) shown marked on the relevant access plans shall be extinguished—

(a) once the undertaker has provided the alternative way or path as indicated on the access plans; and

(b) as at the expiry of the notice given further to paragraph (2) of this article.

(2) No less than 28 days prior to the extinguishment of each of the public rights of way and permissive paths listed in column (2) of Schedule 7 shown marked on the relevant access plans the undertaker shall erect a site notice at each end of the section to be extinguished (as set out in column (3) of Schedule 7).

(3) Subject to the consent of the owner and occupier of any affected land, the undertaker and the local highway authority may agree that the alternative way or path to be provided under this article shall take a different route or have a different legal status than that indicated on the access plans; and a way or path provided in accordance with such agreement shall be taken to have been provided in accordance with the access plans for the purposes of paragraph (2).

(4) For the purposes of paragraph (1), the undertaker shall be taken to have provided the alternative way or path when –

(a) the way or path has been completed:

(i) in accordance with any obligation under article 12 to complete the way or path to the reasonable satisfaction of the street authority, or

(ii) if no such obligation arises, to the reasonable satisfaction of the local highway authority.

Temporary stopping up

15.—(1) The undertaker, during and for the purposes of carrying out the authorised project, may temporarily stop up, alter or divert any street, any other public right of way, any city walkway, or permissive path whether or not within the Order limits and may for any reasonable time—

(a) divert the traffic or a class of traffic from the street, public right of way, city walkway, or permissive path; and

(b) subject to paragraph (2), prevent all persons from passing along the street, public right of way, city walkway, or permissive path.

(2) The undertaker shall provide reasonable access for pedestrians going to or from premises abutting a street, public right of way, city walkway, or permissive path affected by the temporary stopping up, alteration or diversion of a street, public right of way, city walkway, or permissive path under this article if there would otherwise be no such access.

(3) Without prejudice to the generality of paragraph (1), the undertaker may temporarily stop up, alter or divert the streets, public rights of way, city walkways and permissive paths specified in column (2) of Schedule 8 (streets and rights of way etc. to be temporarily stopped up) to the extent specified in column (3) of that Schedule.

(4) The undertaker shall not temporarily stop up, alter or divert—

(a) any street, public right of way, city walkway or permissive path specified as mentioned in paragraph (3) without first consulting either the street authority or (in the case of a city walkway) the city walkway authority; or

(b) any other street, public right of way, city walkway or permissive path without the consent of either the street authority or (in the case of a city walkway) the city walkway authority, which may attach reasonable conditions to any consent, but which consent shall not be unreasonably withheld.

(5) Any person who suffers loss by the suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) The undertaker may not exercise the powers under this article after completion of construction.

Access to works

16.—(1) The undertaker may, for the purposes of the construction, use and or maintenance of the authorised project, other than in respect of specified works subject to the LoPS as applied by the highway authority in whose area the undertaker seeks to carry out such works—

(a) form and lay out means of access, or improve existing means of access, in the location specified in column (2) of Schedule 9 (access to works) for the purposes specified in column (3) of Schedule 9; and

(b) with the approval of the relevant planning authority after consultation with the highway authority, form and lay out such other 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 project.

(2) The relevant planning authority may attach any reasonable conditions to any approval given under paragraph (1)(b).

(3) The undertaker may not exercise the powers under this article after completion of construction.

Agreements with street authorities

17.—(1) The undertaker may enter into agreements with a street authority or (in the case of a city walkway) the city walkway authority with respect to—

(a) the construction of any new street or city walkway including any structure carrying the street or city walkway whether or not over or under any part of the authorised project;

(b) the strengthening, improvement, repair or reconstruction of any street or city walkway under the powers conferred by this Order;

(c) any stopping up, alteration or diversion of a street or city walkway authorised by this Order;

(d) the carrying out in the street of any of the works referred to in article 10(1) (street works) or their maintenance;

(e) the alteration of any street further to article 11(1) or (2) (power to alter the layout etc of streets); or

(f) such other works as the parties may agree.

(2) Such an agreement may, without prejudice to the generality of paragraph (1)—

(a) make provision for the street authority or the city walkway authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and street authority or the city walkway authority specifying a reasonable time for completion of the works;

(c) provide for the dedication of any new street as public highway further to section 38 of the 1980 Act;

(d) provide for any new way to be declared as city walkway in accordance with the City of London (Various Powers) Act 1967;

(e) contain such terms as to payment as the parties consider appropriate; and

(f) contain such other terms as the parties may agree between them.

Traffic regulation

18.—(1) Subject to the provisions of this article, the undertaker may at any time for the purposes of the—

(a) construction of the authorised project temporarily regulate traffic further to part 1 of Schedule 10 (traffic regulation), and

(b) construction, operation or maintenance of the authorised project permanently regulate traffic further to part 2 of Schedule 10 (traffic regulation),

in the manner specified in column (4) on those roads specified in column (2) and along the lengths and between the points specified, or to the extent otherwise described in column (3) of that Schedule.

(2) Without limiting the scope of the specific powers conferred by paragraph (1) but subject to the provisions of this article and the consent (such consent not to be unreasonably withheld) of the traffic authority in whose area the road concerned is situated, which consent may be subject to reasonable conditions, the undertaker may, in so far as may be expedient or necessary for the purposes of or in connection with the construction, operation, or maintenance of the authorised project —

(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, parking, waiting, loading or unloading of vehicles on any road;

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

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

(e) permit or prohibit vehicular access to any road;

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

(3) The undertaker shall not exercise the powers in paragraphs (1) and (2) unless it has—

(a) given not less than 4 weeks’ notice in writing of its intention so to do 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 7 days of the traffic authority’s receipt of notice of the undertaker’s intention under sub-paragraph (a).

(4) Any prohibition, restriction or other provision made by the undertaker under paragraph (1) or (2) shall—

(a) have 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 of the 1984 Act; and

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

(5) 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) at any time.

(6) Before complying with the provisions of paragraph (3) the undertaker shall consult the chief officer of police and the traffic authority in whose area the road is situated.

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

(8) 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 shall (unless the parties agree otherwise) be deemed to have refused consent.

(9) The undertaker may not exercise the power in paragraph 18(1)(a) or 18(2) after completion of construction.

Supplemental powers

Discharge of water

19.—(1) 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 project and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

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

(3) The undertaker shall 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 shall not be unreasonably withheld.

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

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

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

(5) The undertaker shall not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river, unless otherwise authorised by this Order.

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

(7) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2010(20).

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

(9) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency or a harbour authority within the meaning of section 57 of the Harbours Act 1964(21) (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(22) have the same meaning as in that Act.

Protective works to buildings and structures

20.—(1) Save as otherwise agreed pursuant to article 20 (13), subject to the following provisions of this article, the undertaker may at its own expense carry out the protective works to any building listed in Schedule 11 (Protective works) to this Order which the undertaker considers necessary or expedient.

(2) The protective works may be carried out further to paragraph (1) at any time before or during the carrying out in the vicinity of the building of any part of the authorised project.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey—

(a) any building to which the power in paragraph (1) applies and any land within the Order limits; and

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

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

(a) enter the building and any land within the Order limits; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside the Order limits, 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)(a) to enter a building and land within the Order limits;

(c) a right under paragraph 3(b) to enter land;

(d) a right under paragraph (4)(a) to enter a building and land within the Order limits; or

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

the undertaker shall 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), (d) or (e), specifying the planned protective works proposed to be carried out, as listed in Schedule 11 (Protective works) to this Order. Such notice must contain a statement which notifies the recipient of his right under paragraph (6) to make a referral to arbitration.

(6) Where a notice is served under paragraph (5)(a), (d) or (e), the owner and or occupier of the building or land concerned may, by serving a counter-notice within the period of 14 days beginning with the day on which the notice was served, require any issue as to whether the protective works proposed by the undertaker are sufficient to fulfil their purpose, or 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 63 (arbitration).

(7) The undertaker shall 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) Without prejudice to the power to undertake remedial works, under article 21 (remedial works to buildings, or apparatus or equipment), 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 authorised project carried out in the vicinity of the building first comes into 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 project,

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

(9) Nothing in this article shall relieve the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act (compensation for injurious affection).

(10) Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(11) In this article “protective works” in relation to a building means those works listed in Schedule 11 (protective works) and any other works the purpose of which is to prevent damage which may be caused to the building listed, which may include monitoring, underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused by the carrying out, maintenance or use of the authorised project.

(12) Without prejudice to the definition in article 2 (interpretation) the definition of “building” shall for the purposes of this article include those buildings, structures, apparatus and equipment listed in Schedule 11 (protective works).

(13) The undertaker may enter into an agreement or agreements in respect of protective works with any owner or occupier (with the requisite consent of the owner) of a building to which this article applies or of any other building likely to be affected by the authorised project and such agreement shall have the effect (as between those parties only) of regulating the powers in this article, insofar as they incorporate, add to, omit or modify the provisions of this article or any of them.

Remedial works to buildings, or apparatus or equipment

21.—(1) Save as otherwise agreed pursuant to article 21(14), subject to the following provisions of this article, the undertaker may at its own expense carry out remedial works to any land, building, apparatus or equipment which may be affected by the authorised project (whether or not within the Order limits), as the undertaker considers necessary or expedient.

(2) Remedial works may be carried out further to paragraph (1)—

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

(b) after the completion of that part of the authorised project in the vicinity of the land or 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 project first comes into use.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey—

(a) any land or building falling within paragraph (1) and any land within the Order limits; and

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

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

(a) enter the land or building and any land within the Order limits; and

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

(5) Before exercising—

(a) a right under paragraph (1) to carry out remedial works to land or a building;

(b) a right under paragraph (3)(a) to enter land or a building and land within the Order limits;

(c) a right under paragraph 3(b) to enter land;

(d) a right under paragraph (4)(a) to enter land or a building and land within the Order limits; or

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

the undertaker shall, 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), (d) or (e), together with any appropriate plans specifying the remedial works proposed to be carried out. Such notice must contain a statement which notifies the recipient of his right under paragraph (6) to make a referral to arbitration.

(6) Where a notice is served under paragraph (5)(a), (d) or (e), the owner and or occupier of the building or land concerned may, by serving a counter-notice within the period of 14 days beginning with the day on which the notice was served, require any issue as to whether the remedial works proposed by the undertaker are sufficient to fulfil their purpose, or it is necessary or expedient to carry out the remedial works or to enter the building or land to be referred to arbitration under article 63 (arbitration).

(7) The undertaker shall 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) remedial works are carried out under this article to land or a building; and

(b) within the period of 5 years beginning with the day on which the authorised project carried out in the vicinity of the land or building first comes into use it appears that the remedial works are inadequate to protect the land or building against damage caused by the carrying out or use of that part of the authorised project,

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

(9) Nothing in this article shall relieve the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act (compensation for injurious affection).

(10) Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(11) In this article “remedial works” in relation to land or a building means any monitoring or works the purpose of which is to remedy any damage which has been caused, or prevent any further damage which may be caused, by the carrying out, maintenance or use of the authorised project.

(12) Without prejudice to the definition in article 2 (interpretation) the definition of “building” shall for the purposes of this article include apparatus, equipment, or apparatus or equipment within any building.

(13) In this article “plans” means reasonable and appropriate documents demonstrating conclusion of the undertaker’s assessment that it is necessary or expedient to carry out the remedial works and that the remedial works proposed by the undertaker will be sufficient to fulfil their purpose.

(14) The undertaker may enter into an agreement or agreements in respect of remedial works with any owner or occupier (with the requisite consent of the owner) of a building to which this article applies or of any other building likely to be affected by the authorised project and such agreement shall have the effect (as between those parties only) of regulating the powers in this article, insofar as they incorporate, add to, omit or modify the provisions of this article or any of them.

Authority to survey and investigate the land

22.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised project and—

(a) survey, monitor and or investigate the land;

(b) without prejudice to the generality of (a), survey, monitor and or investigate the land and any buildings on that land for the purpose of investigating the potential effects of the authorised project on that land or buildings on that land or for enabling the construction, use and maintenance of the authorised project;

(c) without prejudice to the generality of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and or subsoil and or to remove soil samples;

(d) without prejudice to the generality of sub-paragraph (a), carry out ecological and or archaeological investigations or monitoring on such land; and

(e) place on, leave on and remove from the land apparatus for use in connection with the survey, monitoring and or investigation of land, the making of trial holes, and or the carrying out of ecological and or archaeological investigations.

(2) This article also applies where an owner or occupier has requested the undertaker to enter his land for one or more of the purposes set out in (1).

(3) 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. Such notice must contain a statement which notifies the recipient of his right under paragraph (4) to make a referral to arbitration.

(4) Where a notice is served under paragraph (3), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 14 days beginning with the day on which the notice was served, require any issue as to whether the building or land needs to be surveyed or investigated to be referred to arbitration under article 63 (arbitration).

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

(a) shall, if so required on entering the land, produce written evidence of their authority to do so; and

(b) may take with them such vehicles and equipment as are necessary to carry out the survey, investigation, monitoring, or to make the trial holes.

(6) No trial holes shall be made under this article—

(a) in land located within the highway boundary without the consent of the highway authority (such consent shall not be unreasonably withheld); or

(b) in a private street without the consent of the street authority (such consent shall not be unreasonably withheld); or

(c) in a building without the consent of the owner and occupier.

(7) The undertaker shall compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) Unless the undertaker has taken temporary possession of the land pursuant to article 35 (temporary use of land for carrying out the authorised project), the undertaker shall (unless required by the owners of the land not to do so) remove all vehicles and equipment from and restore the land to the reasonable satisfaction of the owners as soon as reasonably practicable after completion of the survey, monitoring or investigation (as the case may be).

(9) The undertaker may not exercise the powers under this article after completion of construction.

Removal of human remains

23.—(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 shall remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Before any such remains are removed from the specified land the undertaker shall give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—

(a) publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised project; 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 shall 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 shall, 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 shall be determined on the application of either party in a summary manner by a county court, and the court may make an order specifying who shall remove the remains and as to the payment of the costs of the application.

(8) The undertaker shall pay the reasonable expenses both of responding to notices under this article and 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 a 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 shall 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 shall be re-interred in individual containers which shall 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 shall 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 shall be sent by the undertaker to the Registrar General 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) shall be sent by the undertaker to the relevant planning authority mentioned in paragraph (4).

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

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

(14) Section 25 of the Burial Act 1857(23) (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State) shall not apply to a removal carried out in accordance with this article.

(15) The Town and Country Planning (Churches, Places of Religious Worship and Burial Ground) Regulations 1950(24) shall not apply to the authorised project.

(16) The undertaker may not exercise the powers under this article after completion of construction.

Cemex

24.—(1) The undertaker shall give not less than 2 months’ written notice to the relevant planning authority, Cemex, and (if different) the landowner, prior to the commencement of development of Work No. 13b (ii) further to article 3 of this Order.

(2) If the undertaker has given notice under (1), then within 14 days of receipt by the relevant planning authority of that notice, it shall provide a counter notice in writing to the undertaker, providing details of—

(a) any extant planning permission granted further to the 1990 Act, for the development set out at Schedule 1 to this Order as Work No. 13b (ii), or substantially the same development; and

(b) the extent of discharge of the conditions attached to that planning permission.

(3) If following receipt of a notice under (2), the undertaker proposes to construct the development or substantially the same development as is set out in Schedule 1 to this Order as Work No. 13b (ii), then the undertaker shall, not less than 7 days prior to commencement of that development, give further notice in writing to the relevant planning authority confirming whether the development is being carried out further to this Order or further to the planning permission notified under (2), or both.

(4) If following the giving of notice under paragraph (3) the undertaker proposes to commence or continue the development to which the notice relates further to any authorisation not relied upon in that notice, the undertaker shall give further notice in writing to that effect to the relevant planning authority not less than 7 days prior to commencement or continuation of the development further to that authorisation.

Felling or lopping of trees

25.—(1) Save in respect of trees or shrubs which come within article 26 (trees subject to tree preservation orders), or article 27 (trees in conservation areas) the undertaker may fell or lop any tree or shrub near any part of the authorised project, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

(2) In carrying out any activity authorised by paragraph (1), the undertaker shall do no unnecessary damage to any tree or shrub and shall 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, shall be determined under Part 1 of the 1961 Act.

(4) The undertaker may not exercise the powers under this article after completion of construction.

Trees subject to tree preservation orders

26.—(1) The undertaker may fell or lop or cut back the roots of any tree or shrub which is subject to a tree preservation order with the prior approval of the relevant planning authority, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

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

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

(b) the duty contained in section 206(1) of the 1990 Act (replacement of trees) shall not apply.

(3) The authority given by paragraph (1) shall constitute a deemed consent under the relevant tree preservation order.

(4) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, shall be determined under Part 1 of the 1961 Act.

(5) The undertaker may not exercise the powers under this article after completion of construction.

Trees in conservation areas

27.—(1) Save in respect of trees or shrubs which come within article 26 (trees subject to tree preservation orders), the undertaker may fell or lop any tree or shrub which is situated within a conservation area (designated under section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990), or cut back its roots if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

(2) Save for those trees identified on the approved plans, action may not be taken under paragraph (1) unless the undertaker has given written notice to the relevant planning authority of the intended action (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 they fall within an exemption in paragraph (3) or (4), 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.

(3) Paragraph (2) shall not apply where consent would not be needed for the proposed action if the tree or shrub were subject to a tree preservation order.

(4) Paragraph (2) shall not apply to any action which would be exempt in accordance with regulations under section 212 of the 1990 Act (disapplication of tree preservation offences).

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

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

(b) the duty contained in section 213(1)of the 1990 Act (replacement of trees) shall not apply.

(6) The authority given by paragraph (1) shall constitute an authorisation by an order granting development consent for the purposes of section 211(1A) of the 1990 Act.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of compensation, shall be determined under Part 1 of the 1961 Act.

(8) The undertaker may not exercise the powers under this article after completion of construction.

PART 3 ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

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

(2) As from the date on which a compulsory acquisition notice under section 134(3) (notice of authorisation of compulsory acquisition) of the 2008 Act is served or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, all rights, trusts and incidents to which that land or that part of it which is vested (as the case may be) was previously subject shall be discharged or suspended, so far as their continuance would be inconsistent with the exercise of the powers under this Order.

(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) This article is subject to article 30 (acquisition of subsoil only), article 31 (acquisition of subsoil below 9 metres) and article 35 (temporary use of land for carrying out the authorised project).

Compulsory acquisition of rights

29.—(1) The undertaker may acquire compulsorily the existing rights and create and acquire compulsorily the new rights described in the book of reference and indicated on the land plan.

(2) As from the date on which a compulsory acquisition notice is served or the date on which any new right is vested in the undertaker, whichever is the later, the land over which any new right is, or rights are, acquired shall be discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right.

(3) Subject to section 8 (other provision as to divided land) of the 1965 Act, as substituted by article 41 (acquisition of part of certain properties), where the undertaker acquires an existing right over land under paragraph (1), the undertaker shall not be required to acquire a greater interest in that land.

(4) Any person who suffers loss as a result of the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Acquisition of subsoil only

30.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in article 28(1) (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 land under paragraph (1), the undertaker shall not be required to acquire an interest in any other part of the land.

(3) Paragraph (2) shall not prevent article 41 (acquisition of part of certain properties) from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Acquisition of land limited to subsoil lying more than 9 metres beneath surface

31.—(1) This article applies to the land specified in Schedule 13 (land of which only subsoil more than 9 metres beneath surface may be acquired).

(2) In the case of land to which this article applies, the undertaker may only acquire compulsorily under article 28 (compulsory acquisition of land) so much of, or such rights in, the subsoil of the land as may be required for the purposes of the authorised project.

(3) Where the undertaker acquires any part of, or rights in, the subsoil of the land to which this article applies, the undertaker shall not be required to acquire a greater interest in the land or an interest in any other part of it.

(4) References in this article to the subsoil of land are references to the subsoil lying more than 9 metres beneath the level of the surface of the land; and for this purpose “level of the surface of the land” means—

(a) in the case of any land on which a building is erected, the level of the surface of the ground adjoining the building;

(b) in the case of a watercourse or other water area, the level of the surface of the ground nearest to it which is at all times above water level; or

(c) in any other case, ground surface level.

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 servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

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

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

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

(a) the erection, construction or maintenance of any part of the authorised project;

(b) the exercise of any power authorised by this Order; or

(c) the use of any land (including the temporary use of land).

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

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

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

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

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

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

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

(a) is liable to pay compensation by virtue of paragraph (4), and

(b) fails to discharge that liability,

the liability shall be enforceable against that undertaker.

(6) Nothing in this article shall 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.

Statutory authority to override easements and other rights

33.—(1) The carrying out or use of development authorised by this Order and the doing of anything else authorised by this Order is authorised by virtue of section 158 (nuisance— statutory authority) of the 2008 Act, 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 user of land arising by virtue of contract.

(2) The undertaker shall pay compensation to any person whose land is injuriously affected by—

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

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

authorised by virtue of this Order and the operation of section 158 of the 2008 Act.

(3) The interests and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(4) Subsection (2) of section 10 (further provision as to compensation for injurious affection) of the 1965 Act applies to paragraph (2) by virtue of section 152(5) of the 2008 Act.

(5) Any rule or principle applied to the construction of section 10 of the 1965 Act shall be applied to the construction of paragraph (2) (with any necessary modifications).

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

34.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981 shall apply as if this Order were a compulsory purchase order and as if the undertaker were a public authority under section 1(2) of the 1981 Act.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as so applied, shall have effect with the following modifications.

(3) In section 3 (preliminary notices), for subsection (1) there shall be substituted—

“(1) Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order, the acquiring authority shall include the particulars specified in subsection (3) in a notice which is—

(a) given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b) published in a local newspaper circulating in the area in which the land is situated”.

(4) In that section, in subsection (2), for “(1)(b)” there shall be substituted “(1)” and after “given” there shall be inserted and published.

(5) In that section, for subsections (5) and (6) there shall be substituted—

“(5) For the purposes of this section, a person has a relevant interest in land if—

(a) that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or

(b) that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month”.

(6) In section 5 (earliest date for execution of declaration)—

(a) in subsection (1), after “publication” there shall be inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) shall be omitted.

(7) In section 7 (constructive notice to treat), in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” shall be omitted.

(8) References to the 1965 Act in the 1981 Act shall be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order.

Temporary possession of land

Temporary use of land for carrying out the authorised project

35.—(1) The undertaker may, in connection with the carrying out of the authorised project—

(a) enter on and take temporary possession of—

(i) the land specified in columns (1) and (2) of Schedule 14 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule 14 relating to the part of the authorised project specified in column (4) of that Schedule 14;

(ii) any other Order land in respect of which no notice of entry has been served under section 11 of the 1965 Act (powers of entry) (other than in connection with the requisition of rights only) and no declaration has been made under section 4 of the 1981 Act (execution of declaration);

(b) remove any buildings and vegetation from that land that reasonably need to be removed in connection with the carrying out of the authorised project;

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

(d) construct any works specified in relation to that land in column (3) of Schedule 14 (land of which temporary possession may be taken), or such other works which may be required in addition for mitigation.

(2) Not less than 14 days before entering on and taking temporary possession of land under this article the undertaker shall serve notice of the intended entry on the owners and occupiers of the land.

(3) The undertaker may not, without the agreement of the owners or any lessee 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 the end of construction work for that part of the authorised project specified in relation to that land in column (4) of Schedule 14 (land of which temporary possession may be taken); or

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

(4) Before giving up possession of land of which temporary possession has been taken under paragraph 1(a)(i), unless otherwise agreed by the owners of the land, the undertaker shall remove all works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker shall not be required to—

(a) replace a building removed under this article;

(b) remove any ground-strengthening works (being either works listed in Schedule 11 of this order or other works to provide safe and stable ground conditions) which have been placed in that land to facilitate construction of the authorised development; or

(c) remove or reposition any apparatus belonging to statutory undertakers.

(5) Before giving up possession of land of which temporary possession has been taken under paragraph (1)(a)(ii), unless otherwise agreed by the owners of the land, the undertaker shall either acquire the land in accordance with the provisions of paragraph (3)(b) or remove all works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker shall not be required to—

(a) replace a building removed under this article;

(b) remove any ground-strengthening works (being either works listed in Schedule 11 of this order or other works to provide safe and stable ground conditions) which have been placed in that land to facilitate construction of the authorised development; or

(c) remove or reposition any apparatus belonging to statutory undertakers.

(6) The undertaker shall 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 any power conferred by this article, and for the avoidance of doubt this shall include compensation in respect of any loss or damage further to any ground strengthening works within paragraphs (4)(b) or (5)(b) carried out by the undertaker in or on that land.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, shall be determined under Part 1 of the 1961 Act.

(8) Nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

(9) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker shall not be precluded from—

(a) acquiring new rights over any part of that land under article 29 (compulsory acquisition of rights);

(b) acquiring any part of the subsoil of (or rights in the subsoil of) of that land under article 30 (acquisition of subsoil only);

(c) carrying out protective works under article 20 (protective works to buildings and structures) and remedial works under article 21 (remedial works to buildings, or apparatus or equipment); or

(d) carrying out a survey of that land under article 22 (authority to survey and investigate the land).

(10) Where the undertaker takes possession of land under this article, the undertaker shall not be required to acquire the land or any interest in it. For the avoidance of doubt this provision shall not affect the right of an owner or lessee of the Order land to make a claim pursuant to section 150 of the 1990 Act (blight).

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

(12) The undertaker may not exercise the powers under this article after completion of construction.

Temporary use of land for maintaining authorised project

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

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

(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 project; 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) shall not authorise the undertaker to take temporary possession of—

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

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

(3) Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker shall serve notice of the intended entry on the owners and occupiers of the land. Such notice shall include details of the proposed works.

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

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

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

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, shall be determined under Part 1 of the 1961 Act.

(8) Nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

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

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

Compensation

Disregard of certain interests and improvements

37.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal shall 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 executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration as part of the authorised project 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 executed or the improvement or alteration made as part of the authorised project, directly or indirectly concerned.

Set-off for enhancement in value of retained land

38.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal shall 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 project.

(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 29 (compulsory acquisition of rights), the tribunal shall 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 project.

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

No double recovery

39.  Compensation shall not be 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.

Compulsory acquisition of land – incorporation of the mineral code

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

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

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

Supplementary

Acquisition of part of certain properties

41.—(1) This article shall apply instead of section 8(1) of the 1965 Act (other provisions as divided land) (as applied by section 125 of the 2008 Act) where—

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner shall be required to sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the land subject to the notice to treat shall, unless the undertaker agrees to take the land subject to the counter-notice, be referred to the tribunal.

(5) If on such a reference the tribunal determines that the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner shall be required to sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat shall be deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determines that—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat shall be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determines that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat shall be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) Where, by reason of a determination by the tribunal under this article, a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, shall pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or manufactory or of land consisting of a house with a park or garden, the undertaker shall pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Statutory undertakers

42.—(1) The undertaker may—

(a) (further to the power in article 28 (compulsory acquisition of land)) acquire compulsorily the order land belonging to statutory undertakers, and described in the book of reference;

(b) extinguish the rights of, remove or reposition the apparatus belonging to statutory undertakers where such apparatus is anywhere within the Order limits notwithstanding that repositioning may be outside of the Order limits; and

(c) (further to the power in article 29 (compulsory acquisition of rights)) acquire compulsorily the new rights over land belonging to statutory undertakers described in the book of reference and indicated on the land plans.

(2) Schedule 16 (provision for the protection of specified undertakers) applies to the power in article 42(1).

(3) Without prejudice to article 42(1)(b) the following provisions (4) and (5) shall apply in relation to apparatus of statutory undertakers not falling within article 42(1)(b).

(4) Subject to the following provisions of this paragraph, sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers, etc and power of statutory undertakers etc to remove or re-site apparatus) shall apply in relation to land falling outside of the Order limits where it is necessary for the purposes of the authorised project to extinguish the rights of statutory undertakers or to remove or reposition the apparatus belonging to the statutory undertakers, and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential to the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

(5) In the provisions of the 1990 Act as applied by paragraph (1), references to the appropriate Minister are references to the Secretary of State.

Apparatus and rights of statutory undertakers in stopped-up streets

43.—(1) Where a street is stopped up under article 13 (stopping up of streets), any statutory utility whose apparatus is under, in, on, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 13, 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 shall—

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

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

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

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

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

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

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

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) shall 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 shall not 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 shall 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)) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) In this article—

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

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

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003 (interpretation)(26).

(8) Schedule 16 (provision for the protection of specified undertakers) applies to this article.

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 shall be entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) shall not apply in the case of the removal of a public sewer but where such a sewer is removed under article 42, 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,

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

(3) This article shall 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) of the Communications Act 2003(27); and

“public utility undertaker” has the same meaning as in the 1980 Act.

Time limit for exercise of authority to acquire land compulsorily

45.—(1) After the end of the period of 10 years beginning with the day on which this Order is made—

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

(b) no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981(28) as applied by article 34 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The authority conferred by article 35 (temporary use of land for carrying out the authorised project) shall cease either at the end of the period referred to in paragraph (1) or at the end of the period as stated in article 35(3), whichever is the longer, save that nothing in this paragraph shall prevent the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Private rights of way

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

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

(b) as from the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (29) (power of entry),

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being part of or within the order land, is required for the purposes of this Order shall be extinguished on the appropriation of the land by the undertaker for any of those purposes.

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

(4) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

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

(6) Paragraphs (1) to (3) shall have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of 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 shall not apply to any right of way specified in the notice; and

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

(7) If any such agreement as is referred to in paragraph (6)(b)—

(a) is made with a person in or to whom the right of way 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 shall be effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Public rights of navigation

47.—(1) Subject to paragraphs (3) and (4), and notwithstanding any rule of law, the public rights of navigation shall be—

(a) temporarily suspended in relation to each area specified in column (4) of Schedule 12 (the public rights of navigation to be affected by the authorised project) and as shown on the access plans, for the purposes of constructing or carrying out the work listed at column (3) of Schedule 12; and

(b) permanently extinguished in relation to each area specified in column (5) of Schedule 12 and as shown on the access plans.

(2) Subject to paragraphs (3) and (4), and notwithstanding any rule of law, the public rights of navigation over any part of the river may be temporarily suspended with the written consent of the Authority given as provided in paragraph 5 of Part 2 of Schedule 16 (provisions for the protection of specified undertakers).

(3) Prior to the proposed commencement date of any suspension or extinguishment of the public rights of navigation under paragraph (1) or (2), the undertaker shall give notice to the Authority in accordance with paragraph 6 (1) of Part 2 of Schedule 16.

(4) Following:

(a) receipt of a notice relating to a suspension or extinguishment under article 47(1); or

(b) a consent given by the Authority under article 47 (2);

the Authority shall issue a notice to mariners in accordance with the provisions of paragraph 6 (6) of Part 2 of Schedule 16 giving the commencement date and other particulars of the suspension or extinguishment to which the notice or consent relates, and that suspension or extinguishment shall take effect on the date specified and as otherwise described in the notice.

(5) If any of the conditions set out in article 47 (6) is satisfied in relation to any land which forms part of the river and is land over which public rights of navigation have been permanently extinguished pursuant to Article 47(1)(b) the Authority may issue a notice to mariners that the land (or any part of it) is available for navigation, and on the issue of such notice the public rights of navigation shall be re-established in relation to that land.

(6) The conditions referred to in paragraph (5) are the following:

(a) the authorised development is not commenced on the land within 5 years of the permanent extinguishment of rights over the land pursuant to Article 47(1)(b);

(b) having been commenced, construction of the authorised development on the land ceases, and for this purpose construction shall be deemed to have ceased if –

(i) work to construct or carry out the authorised development has ceased for 20 years; or

(ii) the undertaker has confirmed to the Authority in writing that the land is no longer required for the authorised development or that the undertaker does not object to the public rights of navigation over the land being re-established;

(c) if any tidal work constructed on the land is removed pursuant to paragraph 18 of Part 2 of Schedule 16.

(7) During the period that public rights of navigation are temporarily suspended under this article, the undertaker shall:

(a) upon application allow reasonable access to the area where such rights of navigation would otherwise apply subject to such conditions as the undertaker may reasonably impose; and

(b) ensure that houseboats and business boats moored within or affected by the public rights of navigation that are temporarily suspended under this article can be safely serviced by river and can safely leave and return to their moorings as is reasonably required for maintenance or other purposes.

(8) Where necessary tugs may be used to move houseboats and business boats.

(9) Unrestricted access shall also be provided for the emergency services to attend those houseboats and business boats by river.

(10) The undertaker may not exercise the powers of paragraph (1)(a) or (2) of this article after completion of construction.

Rights under or over streets and city walkways

48.—(1) The undertaker may enter onto and use so much of the subsoil of, or air-space over, any street or city walkway within the Order limits as may be required for the purposes of the authorised project and may use the subsoil or air-space for those purposes.

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

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

(a) any subway, tunnel or underground building; or

(b) any cellar, vault, arch, projection, 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 which is entered onto and used under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

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

(6) The undertaker shall as soon as reasonably practicable and in any case no later than 14 days before entering the subsoil or airspace, serve notice of the use under this article, on the owner and or occupier of the subsoil or airspace proposed to be used, and such notice shall be accompanied by plans showing in sufficient detail the subsoil and airspace to be used under this article and upon written request the undertaker shall supply a copy of such notice and plans to the local authority and (if different) the local highway authority.

(7) If at any time following the use pursuant to paragraph (1) the subsoil or airspace is no longer required to be used under this article for the purposes of the authorised project—

(a) the undertaker shall serve notice on the owner that the subsoil or airspace is no longer required; and

(b) upon service of notice to the owner the right of the undertaker to use the subsoil or airspace given by paragraphs (1) and (2) shall cease; and

(c) the undertaker (or if different the owner for the time being of the part of the authorised project occupying the subsoil or airspace) shall within a reasonable time following the written request of the owner to do so, remove its equipment from the subsoil or airspace and restore the subsoil or airspace to the reasonable satisfaction of the owner and deliver up vacant possession of it.

(8) Save in respect of cranes oversailing the highway, the undertaker may not exercise the powers under this article after completion of construction.

PART 4 MISCELLANEOUS AND GENERAL

Application of landlord and tenant law

49.—(1) Unless otherwise agreed by the undertaker, this article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised project, 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 project, 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 shall prejudice the operation of any agreement to which this article applies.

(3) Accordingly, no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

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

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

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

Deemed marine licence

50.  The undertaker is granted a deemed marine licence under Part 4 (marine licensing) of the Marine and Coastal Access Act 2009(30) to carry out the activities specified in Part 1 of Schedule 15 (deemed marine licence), subject to the licence conditions set out in Part 2 of that Schedule 15.

Miscellaneous provisions relating to the 1990 Act

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

(2) In the exercise of the power under article 10(2) (street works) the undertaker shall be deemed to be the highway authority for the purposes of section 55(2)(b) of the 1990 Act.

Safeguarding

52.—(1) Save in respect of exempt applications, before granting planning permission for development to which this article applies, a relevant planning authority must consult the undertaker.

(2) This article applies to development which—

(a) prior to completion of construction, would be wholly or partly either—

(i) in respect of the locations of proposed tunnels which will form part of the authorised project, within the construction phase safeguarding zone and at a depth of 10 or more metres below existing ground level; and or

(ii) in respect of all other parts of the authorised project, within the construction phase safeguarding zone;

(b) after completion of construction, would be either—

(i) wholly or partly within 6 metres of any tunnel forming part of the authorised project (measured from the inside face of the tunnel on the horizontal and vertical axes through the centre point of the tunnel such that the area subject to this provision is the area falling within the square defined by those horizontal and vertical parameters); or

(ii) wholly or partly within 10 metres (measured horizontally) of the outside structural surface of any shaft or other underground structure forming part of the authorised project but not falling within (b)(i); or

(iii) in all other cases, in the reasonable opinion of the relevant planning authority, having regard to the guidelines provided by the undertaker further to paragraph (3) below, likely to adversely affect the authorised project or its operational integrity.

(3) Paragraph 2(b) is conditional upon the undertaker providing to the relevant planning authority—

(a) notice of completion of construction pursuant to requirement PW16;

(b) ‘as built’ drawings of the tunnels and other below ground structures forming part of the authorised project within the relevant planning authority’s area; and

(c) a set of guidelines to which the relevant planning authority can have regard in the discharge of its obligation under paragraph 2(b)(iii).

(4) In the event that the relevant planning authority, in discharging its duty under paragraph (2)(b)(iii) of this article and having had regard to the guidelines issued under paragraph 3(c), is uncertain as to the reasonable likelihood of adverse effects on the authorised project or its operational integrity, then the relevant planning authority shall be under a duty to comply with paragraph (5) as if the development for which planning permission has been applied for falls within paragraph (2)(b).

(5) Where this article requires a relevant planning authority to consult the undertaker before granting planning permission—

(a) they must give the undertaker notice of the application for planning permission (unless the applicant has served a copy of the application on the undertaker), and

(b) they may not determine the application before the end of the period of 21 days, beginning two working days after the relevant planning authority has sent the notice to the undertaker by first class post or by such other means of service which may be agreed with the relevant planning authority, which will be deemed to be the date on which the undertaker receives the notice or copy of the application.

(6) But a relevant planning authority may determine an application during that period if the undertaker has—

(a) made representations to the relevant planning authority about the application, or

(b) notified the relevant planning authority that it does not intend to make representations.

(7) In determining an application for planning permission a relevant planning authority must take into account any representations received in accordance with this article.

(8) The requirement to consult under this article shall be a local land charge.

(9) In this article—

“construction phase safeguarding zone” means the area of land comprising the Order limits;

“exempt applications” means an application for planning permission which relates to development that— (i) consists of an alteration to an existing building, or the change of use of an existing building or land; and (ii) does not involve, or is not likely to involve any construction engineering or other operations below existing ground level; and (iii) is demonstrated by the party applying for such planning permission to the reasonable satisfaction of the relevant planning authority, as not being likely to breach the guidelines referred to at paragraph 3(c) of this article;

“relevant planning authority” means, for the purposes of this article, the planning authority in receipt of an application for planning permission to which this article applies; and

“operation” includes the testing and commissioning of the proposed development.

Provisions for protection of specified undertakers

53.  Schedule 16 (provisions for protection of specified undertakers) to this Order has effect.

Discharge of requirements etc.

54.—(1) Save as provided otherwise by this Order, paragraph 4 of schedule 17 (procedure for discharge of requirements etc. and appeals) shall have effect in relation to all consents, agreements, approvals or notices granted, refused or withheld in relation to—

(a) the requirements set out in Schedule 3 (requirements);

(b) any document referred to in any requirement set out in Schedule 3 (requirements); and

(c) the functions of the local authority set out in Sections 60 and or 61 of the Control of Pollution Act 1974.

(2) Save as provided otherwise by this Order, paragraphs 1, 2 and 3 of schedule 17 (procedure for discharge of requirements etc. and appeals) shall have effect in relation to applications made pursuant to the requirements set out in Schedule 3 (requirements).

(3) Save for applications made pursuant to paragraph 1 of Schedule 17 (procedure for discharge of requirements etc. and appeals), if, within 28 days (unless another period is provided for by this Order) after the application or request required or contemplated by any of the provisions of the Order has been submitted to the authority or owner, it has not notified the undertaker of its disapproval and the grounds of disapproval, it shall (unless the parties have agreed otherwise) be deemed to have refused the application or request and save as otherwise provided for by this order the applicant in each case may appeal further to paragraph 4 of Schedule 17.

(4) Where an application is made to or request is made of the relevant planning authority, a highway authority, a street authority or the owner of a watercourse, sewer or drain, for any consent, agreement, approval or notice required or contemplated by any of the provisions of the Order such consent, agreement or approval shall, if given, be given in writing and shall not be unreasonably withheld.

Removal of consent requirements

55.  Schedule 18 (removal of consent requirements) to this Order, which makes provision for the removal of consent requirements under Section 150 of the 2008 Act in relation to the provisions of this Order and otherwise for the purposes of this Order, shall have effect.

Application, disapplication and modification of legislative provisions

56.  Part 1 of Schedule 19 (miscellaneous controls) to this Order, which makes provision applying, modifying and excluding statutory provisions which relate to matters for which provision may be made by this Order, has effect.

Amendment of local legislation

57.—(1) Subject to any other provisions of this Order, the local enactments specified in Part 2 of Schedule 19 (miscellaneous controls), and any byelaws or other provisions made under any of those enactments, are hereby excluded and do not apply insofar as inconsistent with a provision of, or the exercise of a power conferred by, this Order.

(2) The effect of paragraph (1) is to ensure, in particular, that a power conferred by this Order may be exercised despite, and without having regard to, a provision made by or by virtue of a specified enactment, that—

(a) requires or permits a specified road, path, passage, bridge, parapet, fence or other place or structure to be kept open or maintained generally or in a specified manner,

(b) requires or permits the provision and maintenance of lights or other apparatus or structures generally or in a specified manner,

(c) prohibits or restricts (or imposes conditions or penalties on or in relation to) the obstruction or removal of, or the causing of damage to, a specified place or structure (or class of places or structures),

(d) prohibits or restricts (or imposes conditions on or in relation to) the erection of structures, or the undertaking of other works, in a specified place or structure (or class of places or structures),

(e) permits or requires a specified place or structure to be closed,

(f) makes provision about the conduct of persons using a specified walkway or other place or structure (or class of places or structures) whether by prohibiting or restricting movement (of persons, vehicles or animals) or otherwise,

(g) specifies a minimum or maximum depth for, or otherwise restricts or imposes conditions in relation to, the laying of pipes or the carrying out of any other works,

(h) prohibits the laying of pipes or the carrying out of any other works generally or without the consent of a specified person,

(i) makes provision about the construction or maintenance of, or any other matter relating to, pipes, drains or other means of connecting with sewers,

(j) prohibits or restricts interference with the banks or bed of, or traffic on, the River Thames, or

(k) in any other way would or might apply in relation to anything done, or omitted to be done, in the exercise of a power conferred by this Order.

(3) For the purposes 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 a power conferred by this Order;

(b) action taken in pursuance of a power conferred by this Order 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;

(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.

(4) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker under 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) whether, in the event of a contravention of the provision of local application, the undertaker believes that the provision is excluded by this article and the grounds (if any) for that belief, and

(c) the extent of that exclusion.

(5) Where any person receives a response from the undertaker pursuant to paragraph (4), they shall as soon as reasonably practicable, and at any rate within 14 days of receipt of the undertaker’s response, respond in writing setting out -

(a) whether any part of the undertaker’s response is in dispute, and if so which part(s), and

(b) the grounds for disputing the undertaker’s response.

(6) The City of London (Various Powers) Act 1967 is excluded by paragraph (1) above-

(a) generally, until the completion of construction, and

(b) after the completion of construction, only in respect of section 11A(3).

Application of pipe subways legislation

58.—(1) Where in the course of the construction or maintenance of the authorised project any part of public service works vested in the Mayor and Commonalty and Citizens of the City of London in accordance with Part V of the City of London (Various Powers) Act 1900(31) (“the 1900 Act”) is removed, disassembled or damaged and later reinstated, Part V of the 1900 Act (as amended) shall apply to the reinstated part of the works as if it had been constructed by the said Mayor and Commonalty and Citizens in accordance with that Part of that Act

(2) Where in the course of the construction or maintenance of the authorised project any part of a subway belonging to the Mayor and Commonalty and Citizens of the City of London or to the Lord Mayor and Citizens of the City of Westminster and to which the London County Council (Subways) Act 1893(32) (“the 1893 Act”) applies is removed, disassembled or damaged and later reinstated, the reinstated part of the subway shall vest in the said Mayor and Commonalty and Citizens of the City of London or in the Lord Mayor and Citizens of the City of Westminster as the case may be and the 1893 Act (as amended) shall apply to the reinstated part of the subway as if it had existed at the passing of that Act.

(3) Where in the course of the construction or maintenance of the authorised project any new pipe subway is constructed in the City of London or in the City of Westminster (not being a reinstatement of part of a subway removed, disassembled or damaged in the course of the authorised project), Part V of the 1900 Act (as amended) shall apply to the subway (if it is within the City of London) as if it was public service works constructed by the Mayor and Commonalty and Citizens of the City of London in accordance with that Part of that Act and the 1893 Act (as amended) shall apply to the pipe subway (if it is within the City of Westminster) as if it had existed at the passing of the Act.

(4) For the purposes of paragraph (2), “pipe subway” means any culvert, tube, receptacle or gallery under the surface of a street with the necessary approaches thereto adapted for the proper reception of pipes and wires placed therein; and for the purposes of this paragraph, “pipe” means any pipe, main, valve, tube, or channel, and “wire” means any wire, conductor or cable and any attachment thereto or any covering or protection thereof.

(5) Part V of the 1900 Act or (as the case may be) the 1893 Act shall not cease to apply to any public service works or (as the case may be) subway to which either Act applies prior to the commencement of the authorised project, and shall not fail to apply to any reinstatement or replacement thereof in the course of the authorised project, by virtue of the fact that land counted as a “street” for the purpose of either Act ceases so to be counted as a result of the exercise of a power conferred by this Order.

Other legislation in the City of London

59.  If and to the extent that the relocated stairs specified in Work No. 17b(viii) in Part of Schedule 1 to this Order or the replacement stairs and lift specified in Work No. 17b(ix) (“the replacement structures”) become vested in the Mayor and Commonalty and Citizens of the City of London in their capacity as trustees of the Bridge House Estates, section 16 of the Blackfriars Bridge Act 1863(33) (new Bridge deemed to be vested in the City of London as Trustees of the Bridge House Estates) shall have effect as if a reference to the new Bridge included a reference to the replacement structures (in so far as so vested).

Unilateral undertaking – Project-wide matters

60.  The authorised development shall not commence unless and until the undertaker enters into the Unilateral undertaking for securing offsite mitigation and compensation policy and resources for local planning authorities (in accordance with document reference APP209.03).

Certification of plans etc

61.—(1) The undertaker shall, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

(a) the land plans;

(b) the access plans;

(c) the works plans and sections;

(d) the approved plans;

(e) the book of reference; and

(f) the environmental statement,

for certification that they are true copies of the plans or documents referred to in this Order.

(2) A plan or document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Meaning of Secretary of State

62.  For the purposes of the provisions of this Order the Secretary of State shall mean the Secretary of State for Communities and Local Government and the Secretary of State for Environment, Food and Rural Affairs, save that for the purposes of the following articles it shall mean the Secretary of State stated (or their successor)—

(a) Article 9 (transfer of benefit of Order) - the Secretary of State for Environment, Food and Rural Affairs;

(b) Article 23 (removal of human remains) - the Secretary of State for Justice;

(c) Article 47 (public rights of navigation) - the Secretary of State for Transport; and

(d) Schedule 17, paragraph 4 (procedure for discharge of requirements etc. and appeals) - the Secretary of State for Communities and Local Government.

Arbitration

63.  Any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall, unless otherwise provided for in this Order and unless otherwise agreed between the parties, 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—

(a) in the case of matter pertaining to land and surveying of such land, the President of the Royal Institute of Chartered Surveyors;

(b) in the case of matters pertaining to archaeology, the President of the Institute of Field Archaeologists;

(c) in the case of matters of legal interpretation, the President of the Law Society;

(d) in the case of all other matters, the President of the Institution of Civil Engineers.

Elizabeth Truss

Secretary of State

Department for Environment, Food and Rural Affairs

3rd September 2014

Eric Pickles

Secretary of State

Department for Communities and Local Government

3rd September 2014