The M25 Junction 28 Development Consent Order 2022

Made: 16th May 2022

Coming into force: 6th June 2022

The Secretary of State, in exercise of the powers conferred by sections 114[^f00004], 115[^f00005], 117[^f00006], 120[^f00007], 122[^f00008] and 123[^f00009] of, and paragraphs 1 to 3, 10 to 15, 17, 19 to 23, 26, 33, 36 and 37 of Part 1 of Schedule 5[^f00010] to, the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the M25 Junction 28 Development Consent Order 2022 and comes into force on 6th June 2022.

Interpretation

2

• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961[^f00011];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00012];

• “the 1980 Act” means the Highways Act 1980[^f00013];

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00014];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00015];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00016];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00017];

• “the 2008 Act” means the Planning Act 2008[^f00018];

• “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;

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

• “book of reference” means the document of that description 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;

• “Cadent” means Cadent Gas Limited (company number 10080864) whose registered office is at Ashbrook Court Prologis Park, Central Boulevard, Coventry CV7 8PE;

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

• “CEMP” means the construction environmental management plan to be prepared and approved pursuant to requirement 4 (construction environmental management plan) of Schedule 2 (requirements);

• “commence” means beginning to carry out any material operation (as defined in section 56(4)[^f00019] of the 1990 Act) forming part of the authorised development other than operations consisting of archaeological surveys and evaluations, ecological surveys, installation of amphibian fencing and pre-construction ecological mitigation under licenses, investigations for the purpose of assessing and monitoring ground conditions and levels, remedial work in respect of any contamination or other adverse ground conditions, erection of any temporary means of enclosure, receipt and erection of construction plant and equipment, site clearance in connection with Work No. 29 and the establishment of construction compounds, and the temporary display of site notices or information, provided that any such operation would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement and “commencement” is to be construed accordingly;

• “cycle track” has the same meaning as in the 1980 Act[^f00020];

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form,and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003[^f00021];

• “engineering drawings and sections” means the documents of that description certified by the Secretary of State as the engineering drawings and sections for the purposes of this Order;

• “environmental statement” means the document of that description certified by the Secretary of State as the environmental statement for the purposes of this Order;

• “footpath” has the same meaning as in the 1980 Act;

• “footway” has the same meaning as in the 1980 Act;

• “habitats regulation assessment report” means the document of that description certified by the Secretary of State as the habitats regulation assessment report for the purposes of this Order;

• “highway” has the same meaning as in the 1980 Act;

• “highway authority” has the same meaning as in the 1980 Act;

• “land plans” means the documents of that description certified by the Secretary of State as the land plans for the purposes of this Order;

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

• “local highway authority” has the same meaning as in the 1980 Act;

• “location plan” means the document of that description certified by the Secretary of State as the location plan for the purposes of this Order;

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

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

• “Order limits” means the limits of lands to be acquired or used permanently or temporarily shown on the land plans and works plans within which the authorised development 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[^f00022];

• “permit scheme” means any scheme made under Part 3 of the Traffic Management Act 2004[^f00023] in force at the date on which this Order is made;

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

• “scheme layout plans” means the documents of that description certified by the Secretary of State as the scheme layout plans for the purposes of this Order;

• “Secretary of State” means the Secretary of State for Transport;

• “special road” means a highway which is a special road in accordance with section 16[^f00024] (general provisions as to special roads) of the 1980 Act or by virtue of an order granting development consent;

• “speed limits and traffic regulations plans” means the documents of that description certified by the Secretary of State as the speed limits and traffic regulations plans for the purposes of this Order;

• “statutory nuisance statement” means the document of that description certified by the Secretary of State as the statutory nuisance statement for the purposes of this Order;

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

• “street” means a street within the meaning of section 48[^f00025] (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

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

• “streets, rights of way and access plans” means the documents of that description certified by the Secretary of State as the streets, rights of way and access plans for the purposes of this Order;

• “traffic authority” has the same meaning as in section 121A[^f00026] (traffic authorities) of the 1984 Act;

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

• “trunk road” means a highway which is a trunk road by virtue of—section 10[^f00027] (general provision as to trunk roads) or 19(1)[^f00028] (certain special roads and other highways to become trunk roads) of the 1980 Act;an order or direction under section 10 of that Act;an order granting development consent; orany other enactment;

• “UKPN” means Eastern Power Networks Plc (company registration number 02366906) whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP;

• “undertaker” means National Highways Limited (company number 09346363) of Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;

• “water framework directive assessment compliance report” means the document of that description certified by the Secretary of State as the water framework directive assessment compliance report for the purposes of this Order;

• “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 documents of that description certified by the Secretary of State as the works plans for the purposes of this Order.

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

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

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

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

• (4) 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.

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

• (6) References to any statutory body includes that body’s successor bodies from time to time that have jurisdiction over the authorised development.

• (7) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the streets, rights of way and access plans.

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

• (9) In this Order, the expression “includes” is to be construed without limitation.

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

3

• (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.

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

Maintenance of authorised development

4

The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.

Maintenance of drainage works

5

• (1) Nothing in this Order, or the construction, maintenance or operation of the authorised development under it, affects any responsibility for the maintenance of any works connected with the drainage of land, whether that responsibility is imposed or allocated by or under any enactment, or otherwise, unless otherwise agreed in writing between the undertaker and the person responsible.

• (2) In this article “drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991[^f00029].

Planning permission

6

If planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is—

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

• (b) required to complete or enable the use or operation of any part of the development authorised by this Order,

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

Limits of deviation

7

• (1) In carrying out the authorised development the undertaker may—

• (a) deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans;

• (b) subject to paragraphs (c) and (d), deviate vertically from the levels of the authorised development shown on the engineering drawings and sections up to a maximum of 1 metre upwards or downwards;

• (c) in respect of those parts of Work No. 6 situated between Duck Wood bridge and Grove bridge, deviate vertically from the levels of the authorised development shown on the engineering drawings and sections up to a maximum of 2 metres upwards or downwards;

• (d) in respect of Work No. 18 deviate vertically from the levels of the authorised development shown on the engineering drawings and sections up to a maximum of 1 metre upwards only,

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

• (2) Part 2 (procedure for discharge of requirements) of Schedule 2 (requirements) applies to an application to the Secretary of State for certification under paragraph (1) as though it were an approval required by a requirement under that Schedule.

Benefit of Order

8

• (1) Subject to paragraph (2) and article 9 (consent to transfer benefit of Order), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.

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

Consent to transfer benefit of Order

9

• (1) Subject to paragraphs (4) and (5), the undertaker may—

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

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

• (2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3), includes references to the transferee or the grantee.

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

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

• (5) The consent of the Secretary of State is required for a transfer or grant under this article, except where the transfer or grant is made to—

• (a) Cadent (or a related subsidiary company) for the purposes of Work No. 29;

• (b) UKPN (or a related subsidiary company) for the purposes of Work No. 30; or

• (c) the Environment Agency for the purposes of Work Nos. 23A, 23B, 23C and 23D.

PART 3 — STREETS

Application of the 1991 Act

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

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

• (b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64[^f00030] (dual carriageways and roundabouts) of the 1980 Act or section 184[^f00031] (vehicle crossings over footways and verges) of that Act.

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