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The Lake Lothing (Lowestoft) Third Crossing Order 2020

Type Statutory-Instrument

Publication 2020-04-30

Last updated 2020-10-22

State In force

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Made: 30th April 2020

Coming into force: 21st May 2020

An application has been made to the Secretary of State, under section 37 of the Planning Act 2008 (“the 2008 Act”) in accordance with the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 for an Order granting development consent.

The application was examined by a Panel of two members (“the Panel”) pursuant to Chapter 3 of Part 6 of the 2008 Act and carried out in accordance with Chapter 4 of Part 6 of the 2008 Act, and the Infrastructure Planning (Examination Procedure) Rules 2010 .

The Panel, having examined the application with the documents that accompanied the application, and the representations made and not withdrawn, has, in accordance with section 74(2) of the 2008 Act, made a report and recommendation to the Secretary of State.

The Secretary of State has considered the report and recommendation of the Panel and the representations made and not withdrawn.

The Secretary of State, having decided the application, has decided to make an Order granting development consent for the development described in the application with modifications which in the opinion of the Secretary of State do not make any substantial changes to the proposals comprised in the application.

The Secretary of State, in exercise of the powers conferred by sections 114 , 115 , 120 , 122, 123 and 149A of, and paragraphs 1 to 4, 10 to 17, 19 to 23, 26, 30A, 30B, 32, 32A, 32B, 33, 34, 36 and 37 of Part 1 of Schedule 5 to, the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Lake Lothing (Lowestoft) Third Crossing Order 2020 and comes into force on 21st May 2020.

Interpretation

2

(1) In this Order, unless otherwise stated—

“the 1961 Act” means the Land Compensation Act 1961 ;

“the 1965 Act” means the Compulsory Purchase Act 1965 ;

“the 1980 Act” means the Highways Act 1980 ;

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

“the 1984 Act” means the Road Traffic Regulation Act 1984 ;

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

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

“the 2004 Act” means the Traffic Management Act 2004 ;

“the 2008 Act” means the Planning Act 2008 ;

“the 2009 Act” means the Marine and Coastal Access Act 2009 ;

“AB Ports” means Associated British Ports, (company number ZC000195), whose registered office address is 25 Bedford Street, London WC2E 9ES;

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

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

“appointed person” means—a person acting in the course of that person's duties who—is an employee, agent, contractor or sub-contractor of the undertaker; oris authorised by the undertaker to exercise one or more of its functions under this Order; ora constable, Police Community Support Officer, an officer of the Driver and Vehicle Standards Agency, an officer of the Health and Safety Executive, person authorised for the purposes of section 44 (powers of fire-fighters etc in an emergency etc) of the Fire and Rescue Services Act 2004 or a person accredited by or under section 41 (accreditation under community safety accreditation schemes) of the Police Reform Act 2002 , acting in the execution of that person's duties within the new bridge area;

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

“book of reference” means the document of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the book of reference for the purposes of this Order;

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

“business day” means a day other than a Saturday or Sunday, Good Friday, Christmas Day or a bank holiday in England and Wales under section 1 of the Banking and Financial Dealings Act ;

“Cadent” means Cadent Gas Limited (company number 10080864), whose registered office is at Ashbrook Court, Prologis Park, Central Boulevard, Coventry, CV7 8PE, or any successor in title or assign including a successor to their licence as a gas transporter within the meaning of Part 1 of the Gas Act 1986 ;

“capital dredge” means a dredge which comprises the excavation of the seabed, in an area or down to a level (relative to ordnance datum) not previously dredged during the preceding 10 years;

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

“classification of roads plan” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the classification of roads plan for the purposes of this Order;

“commence” means beginning to carry out any material operation (as defined in section 56(4) (time when development begun) of the 1990 Act) forming part of the authorised development other than operations consisting of environmental surveys and monitoring, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions; receipt and erection of construction plant and equipment, erection of any temporary means of enclosure, the temporary display of site notices or advertisements, and “commencement” is to be construed accordingly;

“construct” includes carrying out, placing, altering, replacing, relaying and removal and “construction” is to be construed accordingly;

“cycleway” means a way constituting or comprised in a highway, being a way over which the public have the following, but no other, rights of way: a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988 ) with a right of way on foot and a right of way on horseback or leading a horse;

“electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but in an electronic form;

“engineering section drawings and plans” means the documents of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the engineering section drawings and plans for the purposes of this Order;

“environmental statement” means the documents of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the environmental statement for the purposes of this Order;

“flood risk activity” has the same meaning as in the Environmental Permitting (England and Wales) Regulations 2016 ;

“footpath” and “footway” have the same meaning as in the 1980 Act;

“general arrangement plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the general arrangement plans for the purposes of this Order;

“harbour authority” means AB Ports in its role as the owner and operator of, and the statutory harbour authority for, Lowestoft Harbour as established by section 8 of, and paragraph 2 of Schedule 3 (powers of Associated British Ports) to the Transport Act 1981 ;

“harbour limits plan” means the plan of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the harbour limits plan for the purposes of this Order;

“harbour master” means the harbour master appointed by the harbour authority and includes that person's authorised deputies and assistants;

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

“interim design guidance manual” means the document of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the interim design guidance manual for the purposes of this Order and which sets out the principles for the detailed design of the authorised development;

“Lake Lothing” means the navigable saltwater lake within the town of Lowestoft in the area of East Suffolk Council between the North Sea and Oulton Broad, as identified by reference points 652111E, 292801N, 655207E, 292615;

“land plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the land plans for the purposes of this Order;

“level of high water” means the level of mean high water springs;

“limits of deviation” means the limits of deviation referred to in article 5 (limits of deviation);

“limits of dredging” means the lines marked “limits of dredging” on the limits of dredging plan;

“limits of dredging plan” means the plan of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the limits of dredging plan for the purposes of this Order;

“local highway authority” means Suffolk County Council in its role as highway authority for the county of Suffolk pursuant to the 1980 Act;

“local planning authority” means East Suffolk Council, or any successor to it as planning authority;

“Lowestoft Harbour” means the harbour over which the harbour authority has jurisdiction as is delineated on the harbour limits plan together with any quays, docks or other land held in connection with that harbour;

“maintain” includes inspect, repair, adjust, alter, remove, replace, or reconstruct in relation to the authorised development and any derivative of “maintain” is to be construed accordingly;

“maintenance dredge” means any activity which comprises the removal of recently-accumulated sediments such as mud, sand and gravel in order to keep channels, berths and other areas at their designed depths and which takes place in circumstances where—the level of the seabed to be restored by the dredging is not lower than it has been at any time during the past 10 years; andthere is evidence that dredging has previously been undertaken to that level (or lower) during that period;

“MMO” means the Marine Management Organisation;

“mooring” means any buoy, pile, post, chain, pillar, pontoon, fixed rail or like apparatus or convenience provided or used for the mooring of vessels;

“new bridge” means Work Nos. 1B, 1C, 1D and 1E (including without limitation the piers, bridge deck, carriageway and parapets);

“new bridge area” means the new bridge, the new bridge approaches, the new bridge control building area and the new bridge infrastructure, as shown on the new bridge area plans;

“new bridge approaches” means the northern and southern approaches to the new bridge (respectively “the new bridge northern approach” and “the new bridge southern approach”), the centrelines of which are shown on the new bridge area plans;

“new bridge area plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the new bridge area plans for the purposes of this Order;

“new bridge control building area” means the area outlined in green on Sheet 2 of the new bridge area plans;

“new bridge infrastructure” means the infrastructure elements supporting the new bridge including (without limitation) the cables, drainage, electricity and water supplies, and fenders relating to the new bridge, as well as any plant and machinery and any emergency, safety or communications equipment required for the construction, maintenance or operation of the new bridge;

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

“Order limits” means the limits of land to be acquired permanently or used temporarily as shown on the land plans, and the limits of land within which the authorised development, as shown on the works plans, may be carried out;

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

“preliminary navigation risk assessment” means the document of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the preliminary navigation risk assessment for the purposes of this Order and which sets out the measures to be undertaken to ensure that risks to navigation from the construction and operation of the new bridge are as low as reasonably practicable;

“PMSC Stakeholder Group” means the group comprising the group maintained and consulted by the harbour authority in accordance with its duties under the Port Marine Safety Code, and the undertaker;

“rights of way and access plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the rights of way and access plans for the purposes of this Order;

“Scheme of Operation” means the document of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the scheme of operation for the purposes of this Order, or any variation to or replacement of that scheme approved by the harbour authority or the undertaker under article 41(2), or by the Secretary of State under article 41(5), as the case may be;

“statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers' land) of the 2008 Act;

“statutory utility” means—a statutory undertaker; ora public communications provider as defined in section 151(1) (interpretation) of the Communications Act 2003 ;

“street” means a street within the meaning of section 48 (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

“tidal work” means so much of any work authorised by this Order as is in, under or over tidal waters or tidal lands below the level of high water;

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

“traffic regulation measures plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the traffic regulation measures plans for the purposes of this Order;

“tree preservation order trees location plan” means the plan of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the tree preservation order trees location plan for the purposes of this Order;

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

“Trinity House” means the Corporation of Trinity House of Deptford Strond;

“undertaker” means Suffolk County Council of Endeavour House, 8 Russell Road, Ipswich, Suffolk IP1 2BX;

“vessel” means every description of vessel with or without means of propulsion of any kind and includes anything constructed or used to carry persons, goods, plant or machinery, or to be propelled or moved, on or by water, a seaplane on or in the water and a hovercraft within the meaning of the Hovercraft Act 1968 ;

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

“works plans” means the plans of that description as referenced in Schedule 14 (documents to be certified) certified by the Secretary of State as the works plans for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do or to place and maintain, anything in, on or under land or in the airspace above its surface and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the enjoyment of interests or rights and are for the benefit of land which is acquired under this Order or is otherwise comprised in the Order land.

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

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

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

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

Disapplication of legislation, etc.

3

(1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purposes of, or in connection with, the construction of the authorised development and, within any maintenance period defined in article 34(12), any maintenance of any part of the authorised development—

(a) byelaw 25 of the Lowestoft Harbour Byelaws 1993 ;

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

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

(e) the provisions of the Neighbourhood Planning Act 2017 insofar as they relate to temporary possession of land under articles 33 (temporary use of land for carrying out the authorised development) and 34 (temporary use of land for maintaining the authorised development) of this Order.

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

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

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

(3) As from the date on which the authorised development is commenced any conditions of a planning permission granted under section 57 (requirement of planning permission) of the 1990 Act which relate to land within the Order limits or land adjacent to the Order limits cease to have effect to the extent they are inconsistent with the authorised development or with anything done or approved under the requirements in Schedule 2 (requirements).

PART 2 — WORKS PROVISIONS

Principal powers

4

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

(2) Any enactment applying to land within, adjoining, or sharing a common boundary with the Order limits has effect subject to the provisions of this Order.

Limits of deviation

5

(1) Subject to the following provisions of this article, the undertaker must construct the authorised development within the Order limits.

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

(3) In constructing or maintaining the linear works comprised in the authorised development—

(a) in the case of linear works for which limits of deviation are shown on the works plans, the undertaker may deviate laterally from the lines or situations shown on those plans to the extent of the limits of deviation; and

(b) in the case of linear works for which limits of deviation are not shown on the works plans, the undertaker may deviate laterally from the lines or situations shown on those plans to the extent of the Order limits.

(4) In constructing and maintaining the part of the new bridge comprising Work No.1D, the undertaker—

(a) must not, unless otherwise agreed with the harbour authority, construct any tidal work within the part of Lake Lothing which is located between the two areas identified in paragraph (5); and

(b) must safeguard the width of the navigable channel within Lake Lothing by preserving a distance of no less than 32 metres between the outer edge of the fenders referred to in each of paragraphs (5)(a) and (5)(b).

(5) The two areas referred to in paragraph (4) are—

(a) in relation to the pier located to the south of the north quay of Lowestoft Harbour, the area between the north quay wall and the outer edge of the fenders surrounding that pier; and

(b) in relation to the pier located to the north of the south quay of Lowestoft Harbour, the area between the south quay wall and the outer edge of the fenders surrounding that pier.

(6) In constructing and maintaining the authorised development, the undertaker may deviate vertically from the levels shown on the engineering section drawings and plans—

(a) to any extent upwards as the undertaker considers to be necessary or convenient but not exceeding 0.5 metres or, in relation to the parts of the authorised development referred to in column (1) of the table below, not exceeding the limit for each such part set out in the corresponding entry in column (2) of that table; and

(b) subject to paragraph (7), to any extent downwards as the undertaker considers to be necessary or convenient, except in relation to the parts of the authorised development referred to in column (1) of the table below, where the extent of permitted downwards deviation for each such part is set out in the corresponding entry in column (3) of that table.

(1) Numbered Work	(2) Upwards vertical limit of deviation	(3) Downwards vertical limit of deviation
Work No. 1A	1 metre	1.5 metres
Work No. 1B	1 metre	2.3 metres
Work No. 1C	1 metre	4 metres
Work No. 1D	1 metre	2.5 metres
Work No. 1E	1 metre	1.1 metres
Work No. 5	1.5 metres	-
Work No. 6	5 metres	2.5 metres

(7) Paragraph (6)(b)—

(a) does not prevent the undertaker, in constructing the piles comprising part of each of Work Nos. 1B, 1C, 1D and 1E, from deviating to any extent downwards as the undertaker considers to be necessary or convenient;

(b) does not permit the undertaker in constructing the bridge deck between piers within Lake Lothing, comprising part of Work No. 1D, to deviate downwards to a level which is less than 12 metres above Highest Astronomical Tide;

(c) does not prevent the undertaker, in constructing the lifting elements of the superstructure of the new bridge, comprising part of Work No. 1D, from deviating by up to 2.5 metres above the levels shown on the engineering section drawings and plans (mainline long section sheet 2 of 2), and to any extent downwards as the undertaker considers to be necessary or convenient; and

(d) does not permit the undertaker in constructing the bridge deck comprising part of Work No. 1B, to deviate downwards to a level which provides less than 4.9 metres headroom above the running rail of the railway.

(8) The undertaker must not undertake any capital dredge to a depth lower than—

(a) 6.4m below chart datum in respect of works in Lake Lothing except Work No.7; and

(b) 3m below chart datum in respect of Work No.7,

unless the undertaker has demonstrated to the MMO and the MMO has agreed in writing that dredging to a depth lower than those set out in sub-paragraphs (a) and (b) would not give rise to any materially new or materially different environmental effects than those assessed in the environmental statement.

(9) Without limitation on the scope of paragraphs (2) to (7) in constructing or maintaining the authorised development the undertaker may—

(a) deviate by up to 3 metres from the points of commencement and termination of any of the linear works, except in the case of the coterminous point of termination and commencement of Work Nos 1A and 1B, from which the undertaker may deviate by up to 10 metres in a north-easterly direction following the centreline of Work No. 1A, and by up to 3 metres in a south-westerly direction following the centreline of Work No. 1B; and

(b) deviate from the design of the new bridge or bridge structure shown on the engineering section drawings and plans, provided that any such deviation is in accordance with the final version of the design guidance manual approved under paragraph 3(2) of Schedule 2.

(10) In this article, references to—

(a) “linear works” are references to any works shown on the works plans by way of centre lines; and

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

Streets

Street works

6

(1) The undertaker may, for the purposes of the authorised development, enter on so much of any street and may—

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

(b) tunnel or bore under the street;

(d) maintain apparatus in the street or change its position; and

(e) carry out any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d).

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

(3) The undertaker must not carry out works to any street under paragraph (1) for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent.

Application of the 1991 Act

7

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

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

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

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

(3) The following provisions of the 1991 Act do not apply in relation to any works carried out under the powers of this Order—

section 56 (directions as to timing);

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

section 58 (restrictions following substantial road works);

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

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

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

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

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

Schedule 3A (restriction on works following substantial street works).

(4) The provisions of the 1991 Act mentioned in paragraph (5) (which, together with other provisions of that Act, apply in relation to the carrying out of street works) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 11 (temporary stopping up and restriction of use of streets) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

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

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

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

section 57 (notice of emergency works);

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

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

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

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

section 75 (inspection fees);

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

section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purposes of the provisions mentioned above.

(6) Section 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration, or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 8 (construction and maintenance of new, altered, or diverted streets)—

(a) affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and the undertaker is not by reason of any duty under that article to maintain a street to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

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

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

8

(1) Any highway to be constructed altered or diverted under this Order including any culverts or other structures laid under it must be maintained by and at the expense of the local highway authority from its completion.

(2) Where a street which is not and is not intended to be a public highway is constructed, altered or diverted under this Order, the street (or part of the street as the case may be) must, when completed to the reasonable satisfaction of the street authority, unless otherwise agreed in writing, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(3) The structure and highway surface of the new bridge must be maintained by and at the expense of the local highway authority from the date of the completion of the new bridge.

(4) Where land not previously part of the public highway comes to form part of the public highway by virtue of the construction, diversion or alteration of the streets set out in Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access), unless otherwise agreed with the street authority, the land is deemed to have been dedicated as public highway on the expiry of a period of 12 months from completion of the works to the street that has been constructed, altered or diverted.

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

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

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

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

(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.

(7) The date of completion of any works to a highway pursuant to this article is to be agreed by the undertaker and the local highway authority.

(8) The date of completion of any works to a street which is not and is not intended to be a highway pursuant to this article is to be agreed by the undertaker and the street authority.

Classification of roads, etc.

9

On the date on which the roads described in Schedule 3 (classification of roads, etc) are completed and open for traffic—

(a) the roads described in paragraphs 1 to 16 of Part 1 (A12 and A146) of Schedule 3 are to be classified as the A12, as if such classification had been made under section 12(3) (general provisions as to principal and classified roads) of the 1980 Act;

(b) the roads described in paragraphs 17 to 24 of Part 1 of Schedule 3 are to be classified as the A146, as if such classification had been made under section 12(3) (general provisions as to principal and classified roads) of the 1980 Act; and

(c) the roads described in Part 2 (other roads) of Schedule 3 are to be classified as set out in that Part and are, where specified in that Part, to be classified roads for the purpose of any enactment or instrument which refers to highways classed as classified roads, as if such classification has been made under section 12(3) of the 1980 Act.

Permanent stopping up of streets and private means of access

10

(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the streets and private means of access specified in columns (1) and (2) of Parts 1, 2, and 3 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to the extent specified and described in column (3) of those Parts of that Schedule.

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

(a) the new street or private means of access to be constructed and substituted for it, which is specified in column (3) of that Part of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

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

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

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

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

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

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

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

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

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

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

(7) This article is subject to article 36 (apparatus and rights of statutory undertakers and utilities in stopped up streets).

Temporary stopping up and restriction of use of streets

11

(1) The undertaker may, during and for the purposes of carrying out the authorised development, temporarily stop up, alter or divert any street and may for any reasonable time—

(a) divert the traffic from the street; and

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

(2) Without limitation on the scope of paragraph (1), the undertaker may use any street temporarily stopped up under the powers conferred by this article and lying within the Order limits as a temporary working site.

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

(4) The undertaker must not temporarily stop up, alter or divert any street for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent.

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

Access to works

12

The undertaker may, for the purposes of the authorised development and with the consent of the street 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 development.

Agreements with street authorities

13

(1) A street authority and the undertaker may enter into agreements with respect to—

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

(b) the strengthening or improvement of any street under the powers conferred by this Order;

(c) the maintenance of any street or of the structure of any bridge or tunnel carrying a street over or under the authorised development;

(d) any stopping up, alteration or diversion of a street under the powers conferred by this Order;

(e) the carrying out in the street of any of the authorised development; or

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

(2) Such agreement may, without limitation on the scope of paragraph (1)—

(a) provide for the street authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and the street 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 (power of highway authorities to adopt by agreement) of the 1980 Act; and

(d) contain such terms as to payment and otherwise as the parties consider appropriate.

Use of private roads for construction

14

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

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

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

Supplemental powers

Discharge of water

15

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

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

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

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

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

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

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

(6) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016.

(7) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, a local authority, or a sewerage undertaker; 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.

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

Protective works to buildings

16

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

(2) Protective works may be carried out—

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

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

(3) Subject to paragraph (5) for the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey—

(a) any building falling within paragraph (1) and any land within its curtilage; and

(b) where necessary or expedient, land which is adjacent to the building falling within paragraph (1) but outside its curtilage (whether or not such adjacent land is inside or outside the Order limits),

and place on, leave on and remove from the land monitoring apparatus.

(4) For the purpose of carrying out protective works to a building under this article 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 (whether or not such adjacent land is inside or outside the Order limits) but not any building erected on it,

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

(5) Before exercising—

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

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

(d) a right under paragraph (4)(b) to enter and take possession of land,

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

(6) Where a notice is served under paragraph (5) the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question of whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 62 (arbitration).

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

(8) Where—

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

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

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

(9) Without affecting article 40 (no double recovery), nothing in this article relieves the undertaker from any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act.

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

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

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

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

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

(c) any works the purpose of which is to secure the safe operation of the authorised development or to prevent or minimise the risk to such operation being disrupted.

Authority to survey and investigate land

17

(1) The undertaker may for the purposes of this Order enter on—

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

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

(i) survey or investigate the land;

(ii) without limitation to the scope of paragraph (i), make any excavations or 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;

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

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

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

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

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

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

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

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

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

but such consent must not be unreasonably withheld.

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

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

Felling or lopping of trees

18

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

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

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

(2) In carrying out any activity authorised by paragraph (1), the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

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

Trees subject to tree preservation orders

19

(1) The undertaker may fell or lop any tree described in Schedule 5 (trees subject to tree preservation orders) and shown on the tree preservation order trees location 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 development or any apparatus used in connection with the authorised development; or

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

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

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

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

(3) The authority given by paragraph (1) constitutes 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, is to be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

20

(1) Regardless of any other enactment or in any rule of law, the undertaker may, with the consent of the harbour authority (such consent not to be unreasonably withheld)—

(a) temporarily close; or

(b) temporarily restrict the passage of vessels in any way in,

any part of Lake Lothing within the Order limits that the undertaker deems necessary or expedient for the purposes of constructing, inspecting or maintaining the new bridge.

(2) In exercise of the powers conferred by paragraph (1)—

(a) the undertaker must execute such works or do such things as may be required to ensure that at any time no more of that part of Lake Lothing which is within the Order limits is closed than is reasonably necessary in all the circumstances; and

(b) should it be necessary at any time to close that part of Lake Lothing which is within the Order limits to navigation, the undertaker must use its best endeavours to ensure that the minimum obstruction, delay or interference is caused to vessels which may be using or intending to use Lake Lothing.

(3) Following receipt of the harbour authority's consent under paragraph (1) to any proposed closure or restriction but subject to paragraph (5), no later than three months before the date when a closure or restriction is due to commence the undertaker must—

(a) inform the PMSC Stakeholder Group and the operators of all marinas located on Lake Lothing of the nature of the proposals including when they are intended to take effect and their anticipated duration; and

(b) take such steps as it considers appropriate in the circumstances, in consultation with the harbour authority, to publicise the nature of the proposals including when they are intended to take effect and their anticipated duration.

(4) Paragraph (3) does not apply in the case of an emergency, or in any case where a proposed closure or restriction is intended to last for 48 hours or less, in which case the undertaker must in consultation with the harbour authority take such steps as it considers practicable in the circumstances to inform persons of, and to publicise, the nature and anticipated duration of the proposed closure or restriction.

(5) As soon as reasonably practicable after the undertaker has complied with paragraph (3), the harbour authority must issue a notice to mariners giving the commencement date and other particulars of the temporary closure or restriction concerned.

(6) Except in an emergency, a master of a vessel must not allow a vessel to enter into any part of Lake Lothing within the Order limits that has been temporarily closed or subject to temporary restrictions under this article without first obtaining the consent of the undertaker which may attach reasonable conditions to any consent.

(7) Before granting consent under paragraph (6), the undertaker must consult with the harbour master.

Removal of vessels

21

(1) If it appears to the undertaker necessary or convenient to do so for the purposes of the construction or maintenance of the authorised development it may, with the consent of the harbour authority (such consent not to be unreasonably withheld), remove from within the Order limits, any vessel that is—

(a) sunk, stranded or abandoned; or

(b) moored or laid up (whether lawfully or not),

and relocate it to such place outside the Order limits (and if that is elsewhere within Lowestoft Harbour, to such place as is agreed by the harbour master) where it may without injury to the vessel be moored or laid.

(2) Before exercising the powers conferred by paragraph (1), the undertaker must take such steps as it considers appropriate in the circumstances, in consultation with the harbour authority, to publish and display notices setting out—

(a) the reason for requiring removal of any vessel from within that part of the limits of dredging specified in the notice; and

(b) the date by which the vessel specified in the notice must be removed from that part of Lake Lothing within the Order limits also specified in the notice.

(3) If the owner or master of any vessel within the Order limits does not remove that vessel from within the part of the Order limits specified in the notice before the date specified in accordance with paragraph (2)(b) the undertaker may, having first obtained consent from the harbour authority, cause that vessel to be removed.

(4) Paragraph (2) does not apply in the case of an emergency, when the undertaker must in consultation with the harbour master take such steps as it considers practicable in the circumstances to inform persons of the proposed removal of any vessel from any part of Lake Lothing within the Order limits.

(5) The undertaker may recover as a debt from the owner of any vessel removed pursuant to paragraph (3) all expenses incurred by the undertaker in respect of its removal.

PART 3 — POWERS OF ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

22

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

(2) This article is subject to article 26 (compulsory acquisition of rights, etc) and article 27 (acquisition of subsoil and airspace only) and article 33 (temporary use of land for carrying out the authorised development).

Crown land

23

The undertaker may exercise any right under this Order to acquire compulsorily an interest in any land which is Crown land (as defined in the 2008 Act), provided that the interest to be acquired is—

(a) identified in the book of reference;

(b) for the time being held otherwise than by or on behalf of the Crown; and

(c) in a plot that is expressly referred to in a consent in writing provided by the relevant Crown authority under section 135 (orders: Crown land) of the 2008 Act.

Compulsory acquisition of land – incorporation of the mineral code

24

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

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

(b) for the “acquiring authority” there is substituted “ the undertaker ”.

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

25

(1) After the end of the period of 5 years beginning with the day on which this Order comes into force—

(a) no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act; and

(b) no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 31 (application of the 1981 Act),

in relation to any part of the Order land.

(2) The authority conferred by article 33 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker from remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights, etc.

26

(1) Subject to paragraph (2), the undertaker may acquire such rights over the Order land or impose such restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 22 (compulsory acquisition of land), by creating them as well as acquiring rights already in existence.

(2) In the case of the Order land specified in columns (1) and (2) of Part 1 (land in which only new rights etc., may be acquired) and Part 2 (rights for the benefit of Cadent) of Schedule 6 (land in which only new rights etc., may be acquired), the undertaker's powers of compulsory acquisition under paragraph (1) are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of such restrictive covenants as the undertaker may require for or in connection with the authorised development for the purposes specified in the corresponding entry in column (3) of Part 1 and Part 2 of Schedule 6 in relation to that land.

(3) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Part 2 of Schedule 6 for the benefit of Cadent—

(a) does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Part 1 of Schedule 6 as may be required for the benefit of any other statutory undertaker; and

(b) must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Part 1 of Schedule 6 as are required for the benefit of any other statutory undertaker.

(4) Subject to section 8 (other provisions as to divided land) of, and Schedule 2A (counter-notice requiring purchase of land) to, the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights), where the undertaker acquires a right over land or the benefit of a restrictive covenant under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

(5) Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights) has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Acquisition of subsoil and airspace only

27

(1) The undertaker may acquire compulsorily so much of, or such rights over, the subsoil beneath, or the surface of, or the airspace above, the land referred to in paragraph (1) of article 22 (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) In the case of the Order land specified in columns (1) and (2) of Schedule 8 (land in which only airspace and new rights may be acquired) the undertaker's powers of compulsory acquisition under article 22 are limited to—

(a) the acquisition of such airspace; and

(b) the acquisition of such easements or other new rights and the imposition of such restrictive covenants over the airspace and the surface of the land,

as the undertaker may require for or in connection with the authorised development.

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

(4) The following do not apply in connection with the exercise of the power under paragraphs (1) and (2) in relation to subsoil or airspace only—

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act as modified by article 32 (modification of the 1965 Act);

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

(5) Paragraphs (3) and (4) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

(6) References in paragraph (2)(a) to airspace are references to the airspace lying at and above the heights specified in column (3) of Schedule 8, which are heights above Ordnance Datum and references in paragraph (2)(b) to airspace are references to the airspace lying below the airspace referenced in paragraph (2)(a).

(7) For the purpose of paragraph (6) “Ordnance Datum” means Ordnance Datum Newlyn, which is the national system for height referencing in mainland Great Britain and which forms the reference frame for heights above mean sea level, at the time of this Order coming into force.

Private rights over land

28

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

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

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

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or burden of the restrictive covenant—

(a) from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker whether compulsorily or by agreement;

(b) on the date of entry onto land by the undertaker under section 11(1) of the 1965 Act; or

whichever is the earlier.

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

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

(5) This article does not apply in relation to any right to which section 138 (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 35 (statutory undertakers and utilities) applies.

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

(a) any notice given to the undertaker before—

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

(ii) the undertaker's appropriation of it;

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

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

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

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

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

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

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

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

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

Power to override easements and other rights

29

(1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, regardless of if 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 contract.

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

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

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

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

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

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

(ii) the injury arises from the carrying out 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 is enforceable against the undertaker.

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

Rights over or under streets

30

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

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

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

(a) any subway or underground building; or

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

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

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

Application of the 1981 Act

31

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

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

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

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

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

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

(6) In section 5B (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “ section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008 ”, the five year period mentioned in article 25 of the Lake Lothing (Lowestoft) Third Crossing Order 2020”.

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

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

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

(2) But see article 27(4) (acquisition of subsoil and airspace only) of the Lake Lothing (Lowestoft) Third Crossing Order 2020, which excludes the acquisition of subsoil or airspace only from this Schedule

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (as modified by article 32 (modification of the 1965 Act) to the compulsory acquisition of land under this Order.

Modification of the 1965 Act

32

(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied by this Order to section 125 (application of compulsory acquisition provisions) of the 2008 Act is modified as set out in paragraphs (2) to (5).

(2) In section 4A(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “ section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 25 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the Lake Lothing (Lowestoft) Third Crossing Order 2020 ”.

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

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

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

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “ article 25 (time limit for exercise of powers to possess land temporarily to acquire land compulsorily) of the Lake Lothing (Lowestoft) Third Crossing Order 2020 ”.

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

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

(2) But see article 27(4) (acquisition of subsoil and airspace only) of the Lake Lothing (Lowestoft) Third Crossing Order 2020, which excludes the acquisition of subsoil or airspace only from this Schedule

; and

(b) after paragraph 29, insert—

(30) In this Schedule, references to entering on and taking possession of land do not include doing so under article 16 (protective works to buildings), 33 (temporary use of land for carrying out the authorised development) or 34 (temporary use of land for maintaining the authorised development) of the Lake Lothing (Lowestoft) Third Crossing Order 2020.

Temporary possession of land

Temporary use of land for carrying out the authorised development

33

(1) The undertaker may, in connection with the carrying out of the authorised development but subject to article 25(2) (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily)—

(a) enter on and take temporary possession of—

(i) the land specified in columns (1) and (2) of Schedule 9 (land of which only temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and

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

(b) remove any buildings and vegetation from the land referred to in sub-paragraphs (a)(i) to (ii);

(c) construct temporary works (including the provisions of means of access) and buildings on the land referred to in sub-paragraphs (a)(i) to (ii); and

(d) construct any works on the land referred to in sub-paragraphs (a)(i) to (ii) as are mentioned in Schedule 1 (authorised development).

(2) Not less than three months (or such other period agreed in writing between the undertaker and the owner of the land) before entering on and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land and that notice must state the works, facilities or other purpose for which the undertaker intends to take possession 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—

(a) in the case of any land specified in paragraph (1)(a)(i) after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (4) of Schedule 9;

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

(c) in the case of any land referred to in paragraph (1)(a)(ii) after the end of the period of one year beginning with the date of completion of the authorised development.

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

(a) replace a building removed under this article;

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

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

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

(5) Any person who suffers loss as a result of the suspension of any private right of navigation under this article is entitled to be paid compensation for such loss by the undertaker, to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(6) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the 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, must be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of any works, other than loss or damage for which compensation is payable under paragraph (6).

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

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

Temporary use of land for maintaining the authorised development

34

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

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

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

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

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

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

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

(3) Not less than three months (or such other period agreed in writing between the undertaker and the owner of the land) before entering upon and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land and that notice must state the period for which temporary possession will be taken and the purpose for which the undertaker intends to take possession of the land including the particulars of the part of the authorised development for which possession is to be taken.

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

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

(6) Any person who suffers loss as a result of the suspension of any private right of navigation under this article is entitled to be paid compensation for such loss by the undertaker, to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

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

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

(9) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of any works, other than loss or damage for which compensation is payable under paragraph (7).

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

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

(12) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which—

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

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

Supplementary

Statutory undertakers and utilities

35

(1) Subject to the provisions of article 26(2) (compulsory acquisition of rights), Schedule 13 (protective provisions) and paragraph (2), the undertaker may—

(a) exercise the powers conferred by articles 22 (compulsory acquisition of land) and 26 (compulsory acquisition of rights) in relation to so much of the Order land as belongs to statutory utilities; and

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

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

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

(b) article 36 (apparatus and rights of statutory undertakers and utilities in stopped up streets).

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The Lake Lothing (Lowestoft) Third Crossing Order 2020

PART 1 — PRELIMINARY

Citation and commencement

1

Interpretation

2

Disapplication of legislation, etc.

3

PART 2 — WORKS PROVISIONS

Principal powers

Development consent, etc., granted by the Order

4

Limits of deviation

5

Streets

Street works

6

Application of the 1991 Act

7

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

8

Classification of roads, etc.

9

Permanent stopping up of streets and private means of access

10

Temporary stopping up and restriction of use of streets

11

Access to works

12

Agreements with street authorities

13

Use of private roads for construction

14

Supplemental powers

Discharge of water

15

Protective works to buildings

16

Authority to survey and investigate land

17

Felling or lopping of trees

18

Trees subject to tree preservation orders

19

Temporary suspension of navigation within Lake Lothing in connection with the authorised development

20

Removal of vessels

21

PART 3 — POWERS OF ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

22

Crown land

23

Compulsory acquisition of land – incorporation of the mineral code

24

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

25

Compulsory acquisition of rights, etc.

26

Acquisition of subsoil and airspace only

27

Private rights over land

28

Power to override easements and other rights

29

Rights over or under streets

30

Application of the 1981 Act

31

Modification of the 1965 Act

32

Temporary possession of land

Temporary use of land for carrying out the authorised development

33

Temporary use of land for maintaining the authorised development

34

Supplementary

Statutory undertakers and utilities

35