The Infrastructure Planning (Model Provisions) (England and Wales) Order 2009

• (1) The undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance 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[^f00055] (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, but 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.

• (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 section 85(1), (2) or (3) of the Water Resources Act 1991[^f00056] (offences of polluting water).

• (8) In this article—

• (a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964[^f00057], 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 have the same meaning as in that Act.

Protective work to buildings

17

• (1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient.

• (2) Protective works may be carried out—

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

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

• (3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.

• (4) For the purpose of carrying out 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 its curtilage; and

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

• (5) Before exercising—

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

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

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

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

the undertaker 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) or (c), specifying the protective works proposed to be carried out.

• (6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 57 (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) protective works are carried out under this article to a building; and

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

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

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

Authority to survey and investigate the land

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• (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 or investigate the land;

• (b) 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 subsoil and remove soil samples;

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

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

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

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

• (a) shall, if so required, 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 or investigation or to make the trial holes.

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

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

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

but such consent shall not be unreasonably withheld.

• (5) 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 of the 1961 Act (determination of questions of disputed compensation).

Removal of human remains

19

• (1) In this article “the specified land” means [insert description of the land].

• (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 remains from the specified land, or cause them o 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 [insert relevant local 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 the 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 of removing and re-interring or cremating the remains of any deceased person under this article.

• (9) If—

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

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

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

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

subject to paragraph (10) the undertaker 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 reinterment or cremation shall be sent by the undertaker to the Registrar General by the undertaker giving the date of reinterment or cremation and identifying the place from which the remains were removed and the place in which they were reinterred 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 [insert relevant local 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 the county court by this article may be exercised by the district judge of the court.

• (14) Section 25 of the Burial Act 1857[^f00058] (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.

Right to dredge

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• (1) The undertaker may, for the purposes of constructing and maintaining the work and of affording access to the work by vessels, from time to time deepen, dredge, scour, cleanse, alter and improve so much of the bed, shores and channels of the river as adjoin or are near to the work and may use, appropriate or dispose of the materials (other than wreck within the meaning of Part 9 of the Merchant Shipping Act 1995) from time to time dredged by them.

• (2) No such materials shall be laid down or deposited—

• (a) in contravention of the provisions of any enactment as respects the disposal of waste; or

• (b) in any place below the level of high water otherwise than in such position and under such conditions and restrictions as may be approved or prescribed by[insert relevant body].

• (3) [if applicable]The undertaker shall consult with [name of separate conservancy port authority]before exercising the rights conferred on them by this article.

Tidal works not to be executed without approval of Secretary of State

21

• (1) Unless its construction has commenced within five years [or such other period as is prescribed or specified in the Order] of the coming into force of this Order, no tidal work shall be constructed, reconstructed, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before that work is begun.

• (2) Any request for the approval of the Secretary of State under paragraph (1) shall be accompanied by written evidence to demonstrate to the satisfaction of the Secretary of State that Schedule L(protective provisions) has been complied with as respects the tidal work for which approval is being requested.

• (3) If a tidal work is constructed, reconstructed, extended, enlarged, replaced or relaid in contravention of paragraph (1) or of any condition or restriction imposed under that paragraph—

• (a) the Secretary of State may by notice in writing require the undertaker at their own expense to remove the tidal work or any part of it and restore the site to its former condition; and, if on the expiration of 30 days beginning with the date when the notice is served on the undertaker they have failed to take reasonable steps to comply with the requirements of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; or

• (b) if it appears to the Secretary of State urgently necessary so to do, the Secretary of State may remove the tidal work, or part of it, and restore the site to its former condition,

and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the undertaker.

Abatement of works abandoned or decayed

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• (1) Where a tidal work is abandoned, or suffered to fall into decay, the Secretary of State may by notice in writing require the undertaker at its own expense either to repair and restore that work or any part, or to remove that work and restore the site to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.

• (2) Where a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or suffered to fall into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include that part of the work, or any portion of it, in any notice under this article.

• (3) If the undertaker fails to comply in any respect with a notice served under this article within the period of 30 days beginning with the date of service of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the undertaker.

Survey of tidal works

23

If the Secretary of State considers it expedient to do so, the Secretary of State may order a survey and examination of a tidal work or of the site on which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in any such survey and examination shall be recoverable from the undertaker.

Lights on tidal works etc. during construction

24

The undertaker shall at or near—

• (a) a tidal work, including any temporary work; or

• (b) any plant, equipment or other obstruction placed, in connection with any authorised development or any work authorised by article 7 (subsidiary works), within the area of seaward construction activity,

during the whole time of the construction, reconstruction, extension, enlargement, replacement or relaying, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as the Secretary of State [and the conservancy authority if applicable or, failing agreement between them, the Secretary of State]may from time to time direct.

Provision against danger to navigation

25

In case of damage to, or destruction or decay of, a tidal work or any part of it, the undertaker shall as soon as reasonably practicable notify [separate conservancy authority if applicable and]Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House [and the conservancy authority or, failing agreement between them, the conservancy authority] may from time to time direct.

Permanent lights on tidal works

26

After the completion of a tidal work the undertaker shall at the outer extremity of it exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as [the separate conservancy authority if applicable and] Trinity House [or, failing agreement between them, the conservancy authority] may from time to time direct.

Rights to lease etc.

27

• (1) The undertaker may at any time lease or grant for the purposes of the undertaking the use or occupation of, or any right or interest in, over or relating to, any lands, works, buildings, equipment or other property forming part of the undertaking for such period or periods and on such terms and conditions as may be agreed between the undertaker and the persons taking the same.

• (2) A lease or grant made or given under paragraph (1) may include provisions delegating to the lessee or grantee any of the functions of the undertaker other than those specified in sub-paragraphs (a) to (f) of paragraph 9B of Schedule 2 to the Harbours Act 1964[^f00059].

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, or is incidental, to it][or is required as replacement land].

• (2) As from the date on which a compulsory acquisition notice under section 134(3) 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, that land or that part of it which is vested (as the case may be) shall be discharged from all rights, trusts and incidents to which it was previously subject.

• (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 35 (acquisition of land limited to subsoil lying more than 9 metres beneath surface) and article 38 (temporary use of land for carrying out the authorised project).

Compulsory acquisition of land – incorporation of the mineral code

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[Part(s)] 2 [and 3] of Schedule 2 to the Acquisition of Land Act 1981^f00060 [is/are] incorporated in this Order subject to the modifications that—

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

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

• (c) [insert additional modifications].

Time limit for exercise of authority to acquire land compulsorily

30

• (1) After the end of the period of [5 years] beginning on the day on which this Order is made—

• (a) no notice to treat 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 as applied by article 33 (application of the Compulsory Purchase (Vesting Declarations) Act 1981)[^f00061].

• (2) The authority conferred by article 38 (temporary use of land for carrying out the authorised project) shall cease at the end of the period referred to in paragraph (1), 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.

Compulsory acquisition of rights

31

• (1) The undertaker may acquire compulsorily the existing rights and create and acquire compulsorily the new rights described in the book of reference and shown on the [insert name]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 rights is 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 of the 1965 Act as substituted by article 36 (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.

Private rights of way

32

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

whichever is the earliest.

• (2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being within the limits of land which may be acquired shown on the land plan, 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 41 (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.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

33

• (1) The Compulsory Purchase (Vesting Declarations) Act 1981[^f00062] shall apply as if this Order were a compulsory purchase order.

• (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 Compulsory Purchase (Vesting Declarations) Act 1981shall 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.

Acquisition of subsoil only

34

• (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 36 (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

35

• (1) This article applies to the land specified in Schedule F (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.

Acquisition of part of certain properties

36

• (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.

Rights under or over streets

37

• (1) The undertaker may enter on and appropriate so much of the subsoil of, or air-space over, any street 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 or any other purpose ancillary to the authorised project.

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

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

• (a) any subway or underground building; or

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

• (4) Subject to paragraph (5), any person who is an owner or occupier of land appropriated 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.

Temporary use of land for carrying out the authorised project

38

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

• (a) enter on and take temporary possession of the land specified in columns (1) and (2) of Schedule G (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised project specified in column (4) of that Schedule;

• (b) remove any buildings and vegetation from that land; and

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

• (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 of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the part of the authorised project specified in relation to that land in column (4) of Schedule G.

• (4) 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; but the undertaker shall not be required to replace a building removed under this article.

• (5) 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.

• (6) 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.

• (7) 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 (5).

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

• (a) acquiring new rights over any part of that land under article 31 (compulsory acquisition of rights); or

• (b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 34 (acquisition of subsoil only) or in accordance with article 35 (acquisition of land limited to subsoil lying more than 9 metres beneath surface).

• (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).

Temporary use of land for maintaining authorised project

39

• (1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised project, 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; and

• (b) 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.

• (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).

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

Special category land

40

• (1) The special category land shall not vest in the undertaker until the undertaker has acquired the replacement land and [insert name of relevant body] has certified that a scheme for the provision of the replacement land as [common/open space/fuel or field garden allotment] has been implemented to its satisfaction.

• (2) On the requirements of paragraph (1) being satisfied, the replacement land shall vest in [insert name of relevant body] subject to the same rights, trusts and incidents as attached to the special category land; and the special category land shall be discharged from all rights, trusts and incidents to which it was previously subject.

• (3) In this article—

• “the special category land” means the land identified as forming part of a common, open space, or fuel or field garden allotment in the book of reference and on the plan entitled “Special Category Land Plan” attached to the land plan, which may be acquired compulsorily under this Order and for which replacement land is to be provided; and

• “the replacement land” means the land identified in the book of reference and on the plan entitled “Replacement Land Plan” attached to the land plan.

Statutory undertakers

41

The undertaker may—

• (a) acquire compulsorily the land belonging to statutory undertakers shown on the [insert name] plan within the limits of the land to be acquired and described in the book of reference;

• (b) extinguish the rights of, remove or reposition the apparatus belonging to statutory undertakers shown on the [insert name] plan and described in the book of reference; and

• (c) acquire compulsorily the new rights over land belonging to statutory undertakers shown on the [insert name] plan and described in the book of reference.

Apparatus and rights of statutory undertakers in stopped up streets

42

• (1) Where a street is stopped up under article 11 (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 11 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) Paragraphs (3) to (6) shall not apply where the authorised project constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

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

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

• (8) In this article—

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

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

• “statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003[^f00063].

Recovery of costs of new connections

43

• (1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 41 (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 41, 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 42 (apparatus and rights of statutory undertakers in stopped-up streets) or Part 3 of the 1991 Act applies.

• (4) In this article—

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

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

Miscellaneous and general

Deemed consent under section 34 of the Coast Protection Act 1949

44

The undertaker is granted deemed consent under section 34 of the Coast Protection Act 1949[^f00064] to carry out the works described in Schedule H, subject to the requirements set out in that Schedule.

Deemed licence under Part 2 of the Food and Environment Protection Act 1985

45

The undertaker is granted a deemed licence under Part 2 of the Food and Environment Protection Act 1985[^f00065] to carry out the works described in Schedule I, subject to the requirements set out in that Schedule.

Felling or lopping of trees

46

• (1) 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—

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

• (b) from constituting a danger to passengers or other persons using 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.

Trees subject to tree preservation orders

47

• (1) The undertaker may fell or lop any tree described in Schedule J and identified on the [insert name] plan, or cut back its roots if it reasonably believes it to be necessary in order to do so to prevent the tree or shrub—

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

• (b) from constituting a danger to passengers or other persons using 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.

Railway and navigation undertakings

48

• (1) Subject to the following provisions of this article, the undertaker may not under article 10 (street works)break up or open a street where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act)—

• (a) is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority; or

• (b) forms part of a level crossing belonging to any such undertakers or to such an authority or to any other person,

except with the consent of the undertakers or authority or, as the case may be, of the person to whom the level crossing belongs.

• (2) Paragraph (1) shall not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act.

• (3) A consent given for the purpose of paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but shall not be unreasonably withheld.

• (4) In this paragraph “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary or harbour.

Application of landlord and tenant law

49

• (1) 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.

Operational land for purposes of the 1990 Act

50

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 operational land for the purposes of that Act).

Defence to proceedings in respect of statutory nuisance

51

• (1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990[^f00066] (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—

• (a) the defendant shows that the nuisance—

• (i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised project 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 site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974[^f00067]; or

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

• (b) the defendant shows that the nuisance—

• (i) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised project and that the nuisance is attributable to the use of the authorised project which is being used in accordance with a scheme of monitoring and attenuation of noise agreed with the Commission as described in requirement 25; or

• (ii) is a consequence of the use of the authorised project and that it cannot reasonably be avoided.

• (2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 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.

Protection of interests

52

Schedule L to this Order has effect.

Saving for Trinity House

53

Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.

Disapplication of regulation 60 of the Conservation (Natural Habitats, &c.) Regulations 1994

54

• (1) Regulation 60 of the Conservation (Natural Habitats, &c.) Regulations 1994[^f00068] (general development orders) (“the Habitats Regulations”) shall not apply to any planning permission which relates to the works authorised by article 7 (subsidiary works) and which is granted by article 3(1) of the Town and Country Planning (General Permitted Development) Order 1995 for the class of development described as permitted development in Part 11 of Schedule 2 to that Order.

• (2) Paragraph (1) does not apply if and to the extent that those works—

• (a) do not form part of the plan and project which was subject to an appropriate assessment in accordance with regulation 48 of the Habitats Regulations (assessment of implications for European Site) in connection with the making of this Order; and

• (b) are not the subject of a further consent, permission or authorisation by a competent authority as defined in the Habitats Regulations.

Planning, etc. jurisdiction

55

• (1) During the period beginning with the date when this Order comes into force and beginning on the accretion date, the area within the Order limits shall, for the purposes of the Control of Pollution Act 1974[^f00069] and the Town and Country Planning Act 1990[^f00070], be annexed to and incorporated with the district of [insert name of relevant planning authority].

• (2) In this article “accretion date” means the date when the works authorised by this Order have been completed or, if earlier, the date when the benefits and rights granted by this Order cease to have effect pursuant to article 4 (period for completion of work).

Certification of plans etc

56

• (1) The undertaker shall, as soon as practicable after the making of this Order, submit to the decision-maker copies of—

• (a) the book of reference;

• (b) the land plan;

• (c) the rights plan;

• (d) the works plan;

• (e) the sections; and

• (f) any other plans or documents referred to in this Order,

for certification that they are true copies of the 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.

Arbitration

57

Any difference under any provision of this Order, unless otherwise provided for, shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the [insert appropriate body].

Schedule A — AUTHORISED PROJECT

Part 1 — AUTHORISED DEVELOPMENT

[NOTE: This Part should describe as fully as possible the elements of the proposed project (including any associated development), which are development for the purposes of section 32 of the 2008 Act, for which development consent is sought. It should not include any elements of development which would be authorised by specific provisions in the Order.]

Part 2 — ANCILLARY WORKS

[NOTE: This Part should describe as fully as possible the ancillary works for which consent is sought and which are not development within the meaning of section 32 of the 2008 Act and which are not be the subject of a separate provision [article] in this Order.]

Schedule B — STREETS SUBJECT TO STREET WORKS

(1)	(2)
Area	Street subject to street works

Schedule C — STREETS TO BE STOPPED UP

Part 1 — STREETS FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

(1)	(2)	(3)	(4)
Area	Street to be stopped up	Extent of stopping up	New street to be substituted

Part 2 — STREETS FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

(1)	(2)	(3)
Area	Street to be stopped up	Extent of stopping up

Schedule D — STREETS TO BE TEMPORARILY STOPPED UP

(1)	(2)	(3)
Area	Street to be temporarily stopped up	Extent of temporary stopping up

Schedule E — ACCESS TO WORKS

(1)	(2)
Area	Description of access

Schedule F — LAND OF WHICH ONLY SUBSOIL MORE THAN 9 METRES BENEATH SURFACE MAY BE ACQUIRED

(1)	(2)
Area	Number of and shown on land plan

Schedule G — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1)	(2)	(3)	(4)
Area	Number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the Authorised project

Schedule H — DEEMED CONSENT UNDER COAST PROTECTION ACT 1949

[Insert details of deemed consent]

Schedule I — DEEMED LICENCE UNDER THE FOOD AND ENVIRONMENT PROTECTION ACT 1985

[Insert details of deemed licence]

Schedule J — TREES SUBJECT TO TREE PRESERVATION ORDERS

(1)	(2)	(3)
Type of tree	Number[reference] of tree shown on land plan	Work to be carried out

Schedule K — LIMITS OF HARBOUR

[Insert details of limits of harbour]

Schedule L — PROTECTIVE PROVISIONS

[Insert details of protective provisions]

SCHEDULE 4 — Model provisions in respect of requirements

Interpretation

1

In this Schedule—

• “the 1990 Act” means the Town and Country Planning Act 1990;

• “the 2008 Act” means the Planning Act 2008;

• “authorised development” means the development and associated development described in Part 1 of Schedule A (authorised project) [and any other development authorised by 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 authorised by this Order;

• “the code of construction practice” means the code of construction practice agreed by [insert relevant body] on [insert date];

• “the environmental document” means the document certified as the environmental document by the decision-maker for the purposes of this Order;

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

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

• “relevant planning authority” means— the district planning authority for the area in which the land to which the provisions of this Order apply is situated unless the provisions relate to the construction or alteration of a hazardous waste facility, in which case it means the county planning authority; a National Park Authority; the Broads Authority; and the Greater London Authority if the land to which the provisions of this Order or requirements apply is situated in Greater London;

• “stage” means a defined section or part of the authorised development, the extent of which is shown in a scheme submitted to and approved by the Commission pursuant to requirement 3 (stages of authorised development).

Time limits

2

The authorised development must be begun within [insert number] years of the date of this Order.

Stages of authorised development

3

No authorised development shall commence until a written scheme setting out all the stages of the authorised development has, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the Commission.

Detailed design approval

4

No [stage of the] authorised development shall commence until [for that stage] written details of the following have, after consultation with the relevant planning authority, been submitted to and approved by the Commission—

• [or

5

No [stage of the] authorised development shall commence until details of the layout, scale and external appearance of the following elements of the authorised development [within that stage] have, after consultation with the relevant planning authority, been submitted to and approved by the Commission]

6

The authorised development must be carried out in accordance with the approved details.

Provision of landscaping

7

No [stage of the] authorised development shall until commence a written landscaping scheme [for that stage] has, after consultation with the relevant planning authority, been submitted to and approved by the Commission. The landscaping scheme must include details of all proposed hard and soft landscaping works, including—

• (a) location, number, species, size and planting density of any proposed planting;

• (b) cultivation, importing of materials and other operations to ensure plant establishment;

• (c) proposed finished ground levels;

• (d) hard surfacing materials;

• (e) vehicular and pedestrian access, parking and circulation areas;

• (f) minor structures, such as furniture, refuse or other storage units, signs and lighting;

• (g) proposed and existing functional services above and below ground, including drainage, power and communications cables and pipelines, manholes and supports;

• (h) details of existing trees to be retained, with measures for their protection during the construction period;

• (i) retained historic landscape features and proposals for restoration, where relevant; and

• (j) implementation timetables for all landscaping works.

Implementation and maintenance of landscaping

8

• (1) All landscaping works must be carried out in accordance with the landscaping scheme approved under requirement 7 and to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.

• (2) The landscaping works must be carried out in accordance with implementation timetables approved under requirement 6.

• (3) Any tree or shrub planted as part of an approved landscaping scheme that, within a period of five years after planting, is removed, dies or becomes, in the opinion of the Commission, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless otherwise approved by the Commission.

Trees

9

• (1) No [stage of the] authorised development shall commence until written details of any proposed tree planting and the proposed times of planting have, after consultation with the relevant planning authority, been approved in writing by the Commission; and all tree planting shall be carried out in accordance with those details and at those times.

• (2) If within a period of [two years] beginning with the date of the planting of any tree that tree, or any tree planted in replacement for it, is removed, uprooted or destroyed or dies, [or becomes, in the opinion of the Commission, seriously damaged or defective,] another tree of the same species and size as that originally planted shall be planted at the same place, unless the Commission gives its written consent to a variation.

Highway accesses

10

• (1) No [stage of the] authorised development shall commence until [for that stage,] written details of the siting, design and layout of any new permanent or temporary means of access to a highway to be used by vehicular traffic, or any alteration to an existing means of access to a highway used by vehicular traffic, has, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the Commission.

• (2) The highway accesses must be constructed in accordance with the approved details.

• (3) No [stage of the] authorised development shall be begun until [for that stage,] a written Access Management Scheme has, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the Commission.

• (4) The Access Management Scheme must be carried out in accordance with the approved details.

Public rights of way

11

• (1) No [stage of the] authorised development shall commence that would affect [insert details of relevant right of way] until a written implementation plan and specification for the making up of an alternative right of way has, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the Commission.

• (2) The alternative [insert details of relevant right of way] shall be implemented in accordance with the approved plan and specification.

Fencing – special roads

12

• (1) No [stage of the] authorised development shall commence until written details of the design and construction of any boundary fencing for special roads have, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the Commission.

• (2) The authorised development shall be carried out in accordance with the approved design and construction.

• (3) “Special road” has the same meaning as in section 329 of the Highways Act 1980.

Fencing and other means of enclosure

13

• (1) No [stage of the] authorised development shall commence until written details of all proposed permanent and temporary fences, walls or other means of enclosure [for that stage] have, after consultation with the relevant planning authority, been submitted to and approved by the Commission.

• (2) The [insert description], and any construction sites, must remain securely fenced at all times during construction of the authorised development.

• (3) Any temporary fencing must be removed on completion of the authorised development.

• (4) Any approved permanent fencing of the new [insert description] must be completed before the [insert description] is brought into use.

Surface water drainage

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• (1) No [stage of the] authorised development shall commence until [for that stage,] written details of the surface and foul water drainage system (including means of pollution control) have, after consultation with the relevant planning authority and the sewerage and drainage authority, been submitted to and approved by the Commission.

• (2) The surface and foul water drainage system must be constructed in accordance with the approved details.

Contaminated land and groundwater

15

• (1) No [stage of the] authorised development shall commence until a written scheme [applicable to that stage,] to deal with the contamination of any land, including groundwater, within the Order limits which is likely to cause significant harm to persons or pollution of controlled waters or the environment has, after consultation with the relevant planning authority and the Environment Agency, been submitted to and approved by the Commission.

• (2) The scheme shall include an investigation and assessment report, prepared by a specialist consultant approved by the relevant planning authority, to identify the extent of any contamination and the remedial measures to be taken to render the land fit for its intended purpose, together with a management plan which sets out long-term measures with respect to any contaminants remaining on the site.

• (3) Remediation must be carried out in accordance with the approved scheme.

Archaeology

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• (1) No [stage of the] authorised development shall commence until [for that stage,] a written scheme for the investigation of areas of archaeological interest [as identified in section [ ]of the environmental document] has, after consultation with the relevant planning authority, been submitted to and approved by the Commission.

• (2) The scheme shall identify areas where field work and/or a watching brief are required, and the measures to be taken to protect, record or preserve any significant archaeological remains that may be found.

• (3) Any archaeological works or watching brief carried out under the scheme must be by a suitably qualified person or body approved by the Commission.

• (4) Any archaeological works or watching brief must be carried out in accordance with the approved scheme.

Ecological management plan

17

• (1) No [stage of the] authorised development shall commence until a written ecological management plan [for that stage] reflecting the survey results and ecological mitigation and enhancement measures included in the environmental document, after consultation with the relevant planning authority, shall be submitted to and approved by the Commission.

• (2) The ecological management plan shall include an implementation timetable and must be carried out as approved.

Code of construction practice

18

Construction works shall be carried out in accordance with the agreed code of construction practice, unless otherwise agreed by the Commission, after consultation with relevant planning authority.

• [or

19

• (1) No [stage of the] authorised development shall commence until a code of construction practice shall, after consultation with the relevant planning authority, be submitted to and approved by the Commission.

• (2) All construction works shall be undertaken in accordance with the approved code, unless otherwise agreed by the Commission.]

[Note: The code should specify measures designed to minimise the impacts of construction works, such as means of minimising pollution from dust, noise, vibration and lighting, wheel cleansing facilities, routes for construction traffic, working hours etc. To the extent that it does not, or does not do so adequately, separate conditions are likely to be required, some of which are indicated below].

Design of roads

20

• (1) No [stage of the] authorised development consisting of the construction or alteration of a street which is a trunk road or including any traffic management and control measures shall commence until written details of the design of the street shall, after consultation with the Highways Agency, be submitted to and approved by the Commission.

• (2) The [authorised development] construction or alteration of the street or the taking of traffic management and control measures shall be carried out in accordance with the approved design.

External lighting

21

No [stage of the] authorised development, shall commence until written details of any external lighting to be installed at any of the construction sites [within that stage], including measures to prevent light spillage, shall, after consultation with the relevant planning authority and the highway authority, be submitted to and approved by the Commission; and any approved means of lighting must subsequently be installed and retained for the duration of the construction period.

Construction traffic

22

• (1) No [stage of the] authorised development shall commence until written details of the preferred route to be used by construction traffic shall, after consultation with the relevant planning authority and the highway authority, be submitted to and approved by the Commission.

• (2) Notices shall be erected and maintained throughout the period of construction at every construction site exit, indicating to drivers the route agreed by the Commission for traffic entering and leaving the site.

Control of noise during construction and maintenance

23

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for noise management during construction and maintenance [of that stage] has been submitted to and approved by the Commission.

• (2) The scheme shall set out the particulars of—

• (a) the works, and the method by which they are to be carried out;

• (b) the noise attenuation measures to be taken to minimise noise resulting from the works, including any noise limits; and

• (c) a scheme for monitoring the noise during the works to ensure compliance with the noise limits and the effectiveness of the attenuation measures.

• (3) The approved noise management scheme must be implemented before and maintained during construction and maintenance of the [relevant stage of the] authorised development.

• (4) The construction and maintenance works must be undertaken in accordance with the approved noise management scheme.

Construction hours

24

• (1) Construction work shall not take place other than between [0800 and 1800 hours on weekdays and 0800 and 1300 hours on Saturdays, excluding public holidays], unless otherwise agreed by the Commission.

• (2) Nothing in paragraph (1) precludes a start-up period from [0730 to 0800] and a shut down period from [1800 to 1830] on weekdays (excluding public holidays).

Control of noise during operational phase

25

• (1) No authorised development shall commence operation until, after consultation with the relevant planning authority, a written scheme for noise management including monitoring and attenuation for the use of the authorised project has been submitted to and approved by the Commission.

• (2) The noise management scheme must be implemented as approved and maintained for the duration of use of the authorised project.

Control of odour emissions

26

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for the management and mitigation of odour emissions has been submitted to and approved by the Commission.

• (2) The approved scheme for the management and mitigation of odour emissions must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

Control of artificial light emissions

27

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for the management and mitigation of artificial light emissions has been submitted to and approved by the Commission.

• (2) The approved scheme for the management and mitigation of artificial light emissions must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

Control of dust emissions

28

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for the management and mitigation of dust emissions has been submitted to and approved by the Commission.

• (2) The approved scheme for the management and mitigation of dust emissions must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development

Control of smoke emissions

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• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for the management and mitigation of smoke emissions has been submitted to and approved by the Commission.

• (2) The approved scheme for the management and mitigation of smoke emissions must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

Control of steam emissions

30

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme for the management and mitigation of steam emissions has been submitted to and approved by the Commission.

• (2) The approved scheme for the management and mitigation of steam emissions must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

Control of insects

31

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority, a written scheme to ensure the prevention of infestation or emanation of insects from the authorised development has been submitted to and approved by the Commission.

• (2) The approved scheme for the prevention of infestation or emanation of insects must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

• (3) For the purposes of this requirement, “insects” excludes insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981[^f00071] (animals which are protected), unless they are included in respect of section 9(5) of that Act only.

Accumulations and deposits

32

• (1) No [stage of the] authorised development shall commence until, after consultation with the relevant planning authority,a written scheme for the management of any accumulations [or] and deposits whose effects may be harmful or visible or otherwise noticeable from outside the Order limits has been submitted to and approved by the Commission.

• (2) The approved scheme for the management of accumulations and deposits must be implemented before and maintained during the construction, operation and decommissioning of the [relevant stage of the] authorised development.

Travel plan

33

• (1) No [stage of the] of the authorised development shall be begun until, after consultation with the relevant planning authority and the highway authority, a travel plan [for the contractor’s workforce], which must include details of the expected means of travel to and from [the authorised [project]][the construction site] and any parking to be provided, has been submitted to and approved by the Commission.

• (2) No part of the authorised project shall be brought into use until, after consultation with the relevant planning authority and the highway authority, a travel plan, which must include details of the expected means of travel to and from the authorised project and any parking to be provided, has been submitted to and approved by the Commission.

• (3) The plan approved under paragraph (1) must be implemented during the construction of the authorised development and the plan approved under paragraph (2) must be implemented [within one month of the authorised project being brought into use] and shall continue to be implemented for as long as the authorised project is used.

European protected species

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• (1) No [stage of the] authorised development shall commence until [further] survey work has been carried out to establish whether a European protected species is present on any of the land affected, or likely to be affected, by the authorised development or in any of the trees to be lopped or felled or buildings to be demolished during [that stage of] the authorised development.

• (2) Where a European protected species is shown to be present, no authorised development [of that stage] shall be begun until, after consultation with the relevant planning authority, Natural England and the Secretary of State for the Environment, Food and Rural Affairs, a scheme of protection and mitigation measures has been submitted to and approved by the Commission; and the authorised development shall be carried out in accordance with the approved scheme.

• (3) “European protected species” has the same meaning as in regulations 38 and 42 of the Conservation (Natural Habitats, &c.) Regulations 1994[^f00072].

Restoration of land used temporarily for construction

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Any land within the Order limits which is used temporarily for construction must be reinstated to its former condition, or such condition as the Commission may approve, within [six] months of completion of authorised development.

Requirement for written approval

36