The A303 (Amesbury to Berwick Down) Development Consent Order 2023

• (3) Where in consequence of paragraph (2), a statutory undertaker or an owner or occupier of land exercises the powers in paragraph (1) in place of the undertaker, except in relation to the payment of compensation the liability for which must remain with the undertaker, the statutory undertaker or the owner or occupier of land, as the case may be, is to be treated for the purposes of this Order, and by any person with an interest in the land affected, as being the undertaker in relation to the acquisition of the rights and the imposition of the restrictive covenants in question.

• (4) In the case of the Order land specified in columns (1) and (2) of Schedule 4 (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 over 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 column (3) of Schedule 4 in relation to that land.

• (5) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 4 for the benefit of statutory undertakers or for the benefit of any other person—

• (a) does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 4 as may be required for the benefit of any other statutory undertaker or any other person; and

• (b) must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 4 as are required for the benefit of any other statutory undertaker or any other person.

• (6) Subject to section 8⁶⁶ (other provisions as to divided land) of, and Schedule 2A⁶⁷ (counter-notice requiring purchase of land not in notice to treat) to, the 1965 Act (as substituted by paragraph 5(8) of Schedule 5 (modification of compensation and compulsory purchase enactments for the creation of new rights)), where the undertaker acquires a right over land or the benefit of a restrictive covenant, the undertaker is not required to acquire a greater interest in that land.

• (7) Schedule 5 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.

• (8) For the purposes of this article “statutory undertaker” includes Esso.

Private rights over land

23

• (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)⁶⁸ (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; or

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

• (c) on commencement of any activity authorised by the Order which interferes with or breaches those rights,

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 152⁶⁹ (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

• (5) This article does not apply in relation to any right to which section 138⁷⁰ (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 31 (statutory undertakers) applies.

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

• (a) any notice given by the undertaker before—

• (i) the completion of the acquisition of the land or the acquisition of the rights or the imposition of 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

24

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

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

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

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

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

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

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

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

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

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

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

• (b) fails to discharge that liability,

the liability is enforceable against the undertaker.

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

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

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

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

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

Modification of Part 1 of the 1965 Act

25

• (1) Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied to this Order by section 125⁷¹ (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

• (2) In section 4A(1)⁷² (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 118⁷³ (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (3) In section 11A⁷⁴ (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” insert “under that provision”.

• (4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (5) In Schedule 2A⁷⁵ (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, etc., only) of the A303 (Amesbury to Berwick Down) Order 2023, 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 articles 14 (protective works to buildings), 15 (authority to survey and investigate land), 29 (temporary use of land for constructing the authorised development) or 30 (temporary use of land for maintaining the authorised development) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023.

Application of the 1981 Act

26

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

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

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

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

• (4) In section 5⁷⁶ (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

• (5) Omit section 5A⁷⁷ (time limit for general vesting declaration).

• (6) In section 5B⁷⁸ (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 118⁷⁹ (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (7) In section 6⁸⁰ (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 134⁸¹ (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

• (8) In section 7⁸² (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

• (9) In Schedule A1⁸³ (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, etc., only) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023, which excludes the acquisition of subsoil or airspace only from this Schedule.

• (10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 25 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil, etc., only

27

• (1) The undertaker may acquire compulsorily so much of, or such rights over, the subsoil of and airspace over the land referred to in paragraph (1) of article 19 (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 6 (land in which only subsoil or new rights in and above subsoil and surface may be acquired) the undertaker’s powers of compulsory acquisition under article 19 are limited to—

• (a) the acquisition of such subsoil; and

• (b) the acquisition of such easements or other new rights and the imposition of restrictive covenants in the remaining subsoil and over 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 or surface of or 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 paragraph (1) in relation to subsoil or airspace only—

• (a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

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

• (c) section 153(4A)⁸⁴ (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

• (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 subsoil are references to the subsoil lying at and below the depths specified in column (3) of Schedule 6 beneath the level of the surface of the land, and references to the remaining subsoil in paragraph (2)(b) are references to the part of the subsoil lying above the shallowest part of the subsoil acquired under paragraph (2)(a) but below the level of the surface of the land.

• (7) For the purposes of paragraph (6) “the level of the surface of the land” means—

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

• (b) in the case of a river, dock, canal, navigation, watercourse or other water area, the level of the surface of the ground covered by water; or

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

at the time of this Order coming into force.

Rights over or under streets

28

• (1) The undertaker may enter on, appropriate and use 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, as if it were a 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.

Temporary possession of land

Temporary use of land for constructing the authorised development

29

• (1) The undertaker may, in connection with the construction of the authorised development but subject to article 21 (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 7 (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;

• (ii) any other Order land in respect of which no notice of entry has been served under section 11⁸⁵ (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 4⁸⁶ (execution of declaration) of the 1981 Act;

• (b) remove any buildings and vegetation from that land referred to in sub-paragraph (a);

• (c) construct temporary works (including the provision of means of access) and buildings on the land referred to in sub-paragraph (a); and

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

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

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

• (a) in the case of 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 7; or

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

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

• (a) replace a building removed under this article;

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

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

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

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

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

• (7) Subject to article 37 (no double recovery), 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 execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

• (8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i).

• (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 13⁸⁷ (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

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• (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 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and that notice must state 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) 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.

• (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 as if it were a dispute 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 execution 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, it is not required to acquire the land or any interest in it.

• (10) Section 13 (refusal to give possession to the 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.

• (11) 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

31

• (1) Subject to the provisions of article 22(4) (compulsory acquisition of rights), Schedule 11 (protective provisions) and paragraph (2), the undertaker may—

• (a) exercise the powers conferred by article 19 (compulsory acquisition of land) and article 22 (compulsory acquisition of rights) in relation to so much of the Order land belonging to statutory undertakers; and

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

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

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

• (b) article 32 (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

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• (1) Where a street is stopped up under article 10 (permanent stopping up of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

• (2) Where a street is stopped up under article 10 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

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

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

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

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

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

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

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

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

• (5) For the purposes of paragraph (4)—

• (a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

• (b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

• (6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

• (7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 (street works in England and Wales) of the 1991 Act, but instead—

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

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

• (8) In this article—

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

• “statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of chapter 1) of the Communications Act 2003⁸⁸.

Recovery of costs of new connection

33

• (1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 31 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

• (2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 31, any person who is—

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

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

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

• (3) This article does not have effect in relation to apparatus to which article 32 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 (street works in England and Wales) of the 1991 Act applies.

• (4) In this article—

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

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

Special category land

34

• (1) On the exercise by the undertaker of the relevant Order powers, the special category land is not to vest in the undertaker until the undertaker has acquired the replacement land and the Secretary of State (in consultation with the planning authority) has certified that a scheme for the provision of the replacement land as open space and a timetable for the implementation of the scheme has been received from the undertaker.

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

• (3) On the exercise of the relevant Order powers, the rights to be acquired over the special category (rights) land are to vest in the undertaker or, where the powers of article 22(1) (compulsory acquisition of rights) are with the undertaker’s consent under article 22(2) exercised by a statutory undertaker, vest in that statutory undertaker, and the special category (rights) land is to be discharged from all private rights to which it was previously subject in accordance with article 23(2) (private rights over land).

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

• (5) In this article—

• “the relevant Order powers” means the powers exercisable over the special category land by the undertaker under article 19 (compulsory acquisition of land) or article 22 (compulsory acquisition of rights);

• “the special category land” means the land identified as forming open space and numbered 10-16 and 11-06 in the book of reference and shown on the special category land plans;

• “the special category (rights) land” means the land identified as forming open space and numbered 10-18, 10-19, 11-04 and 11-05 in the book of reference and on the special category land plans; and

• “the replacement land” means the land identified as such and numbered 10-17 and 11-33 in the book of reference and on the land plans.

Compensation

Disregard of certain interests and improvements

35

• (1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal must not take into account—

• (a) any interest in land; or

• (b) any enhancement of the value of any interest in land by reason of any building erected, works carried out or improvement or alteration made on the relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised development was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

• (2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works constructed or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.

Set-off for enhancement in value of retained land

36

• (1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.

• (2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 22 (compulsory acquisition of rights), the tribunal must set off against the value of the rights so acquired—

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

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

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

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

No double recovery

37

Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.

PART 4 — OPERATIONAL PROVISIONS

Power to operate and use the tunnel

38

The undertaker may operate and use the tunnel.

Closing the tunnel

39

• (1) The undertaker may, whenever in its opinion it is necessary to do so, close the tunnel, whether wholly or partially.

• (2) Where the undertaker proposes to close the tunnel it must, except in an emergency, and subject to any tunnel closure management plan produced in accordance with paragraph 4 (outline environmental management plan) of Schedule 2 (requirements)—

• (a) give not less than 7 days’ notice in such manner as the undertaker considers appropriate; and

• (b) throughout the period of such closure display signs at convenient situations on the roads communicating with the tunnel area giving warning of the closure.

• (3) In this article “emergency” means any circumstance whether existing or imminent, which the undertaker considers is likely to cause danger to—

• (a) persons or property, including the tunnel or any person in or using the tunnel; or

• (b) the environment.

No apparatus in the tunnel area without consent

40

Regardless of anything contained in any enactment, no person is to enter upon, break up or interfere with the tunnel, or any part of it, for the purpose of placing or doing anything in or in relation to any sewer, drain, main, pipe, wire or other apparatus or executing any work except with the written consent of the undertaker and in accordance with such terms and conditions as the undertaker may determine, including as to payment, such consent not to be unreasonably withheld and any disputes as to failure to consent or over terms and conditions to be subject to the arbitration provisions in article 57 (arbitration).

Removal of vehicles

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• (1) If any obstruction is caused by a vehicle waiting, loading, unloading or breaking down in the tunnel area, the person in charge of the vehicle must immediately remove it; and if that person fails to do so an authorised person may take all reasonable steps to remove the obstruction.

• (2) An authorised person who removes a vehicle under paragraph (1) may do so by towing or driving the vehicle or in such other manner as the authorised person may think necessary and may take such measures in relation to the vehicle as the authorised person considers necessary to enable the vehicle to be removed.

• (3) Where an authorised person requires a person to remove a vehicle which is causing an obstruction in the circumstances described under paragraph (1) and the authorised person determines that the manner of removal proposed by the person required to remove it may cause danger to other persons using the road, the authorised person may require the vehicle to be moved in such other manner as the authorised person considers safe or may remove or arrange for the removal of the vehicle if the person required to remove it refuses to remove it in the manner so required.

• (4) A vehicle removed by an authorised person under this article—

• (a) may be returned immediately to the person in charge of that vehicle; or

• (b) where immediate return of that vehicle to the person in charge of it is not practicable or appropriate, must be delivered to the undertaker or to a person authorised by the undertaker to keep vehicles so removed (“the custodian” in either case).

• (5) The custodian is entitled to recover the relevant charges from any person responsible.

• (6) The custodian may dispose of a vehicle at any time after its removal—

• (a) where the owner of the vehicle has disclaimed all rights of ownership of the vehicle;

• (b) where in the opinion of the authorised person the vehicle is in such a condition that it ought to be destroyed; or

• (c) in the case of a vehicle, not falling within sub-paragraph (a) or (b), which—

• (i) does not display a licence (whether current or otherwise and whether or not the vehicle is required to display a licence), and

• (ii) does not display any registration mark (whether indicating registration within or outside the United Kingdom).

• (7) In a case to which paragraph (6) does not apply, the custodian must—

• (a) if the vehicle carries a United Kingdom registration mark, ascertain from records kept by the Secretary of State under the Vehicle Excise and Registration Act 1994⁸⁹ the name and address of the person by whom the vehicle is kept; or

• (b) if the vehicle does not carry such a registration mark, make such inquiries as appear to the custodian reasonably practicable to ascertain the owner of the vehicle.

• (8) If the custodian, having taken the relevant steps required under paragraph (7), has been unable to ascertain the name and address of the owner of the vehicle, the custodian may dispose of the vehicle.

• (9) A custodian who has ascertained the name and address of the owner of the vehicle must issue a notice to the owner at the owner’s address in the form prescribed in paragraph (10).

• (10) A notice under paragraph (9) must—

• (a) contain the specified information; and

• (b) state—

• (i) the place to which the vehicle has been removed;

• (ii) that if the recipient is the owner of the vehicle, the recipient is required to remove the vehicle from the custody of the custodian and pay the relevant charges within the period specified; and

• (iii) that the custodian intends to dispose of the vehicle if it is not removed within that period.

• (11) The periods specified in paragraph (10)(b)(ii) and (iii) must be not less than 7 days beginning with the day on which the notice is served.

• (12) If the person to whom the notice issued under paragraph (9) fails to comply with all of its requirements, the custodian may dispose of the vehicle at any time after the date specified in the notice in accordance with paragraph (10).

• (13) As soon as reasonably practicable following the disposal of a vehicle under this article the custodian must—

• (a) where the vehicle carried a GB registration mark or a mark indicating registration in Northern Ireland, give information relating to the disposal to—

• (i) the Secretary of State;

• (ii) the chief officer of the police force in whose area the vehicle was removed under paragraph (1); and

• (iii) HPI Ltd.

• (b) where the vehicle carried a mark indicating registration outside the United Kingdom, give information relating to the disposal to—

• (i) the Secretary of State;

• (ii) the Commissioners of Customs and Excise; and

• (iii) the chief officer of the police force in whose area the vehicle was removed under paragraph (1);

• (c) where the vehicle did not carry any registration mark, give information relating to the disposal to the chief officer of the police force in whose area the vehicle was removed under paragraph (1);

• (d) in the case of any vehicle, information relating to the disposal must be given to any person who appears to the custodian to have been the owner of the vehicle immediately before it was disposed of.

• (14) Where, by virtue of paragraph (5), any sum is recoverable in respect of a vehicle by a custodian, the custodian is entitled to retain custody of the vehicle until that sum is paid.

• (15) A person (“the claimant”) may take possession of a vehicle (with its contents) which has been removed and delivered to a custodian and has not been disposed of under this article, if the conditions specified in paragraph (16) are satisfied.

• (16) The conditions are that—

• (a) the claimant satisfies the custodian that the claimant is the owner of the vehicle or that the claimant is authorised by the owner to take possession of the vehicle;

• (b) all outstanding relevant charges are paid to the custodian; and

• (c) the claimant takes possession of the vehicle within 7 days of the custodian being satisfied that—

• (i) the claimant is the owner of the vehicle or is authorised by the owner to take possession; and

• (ii) any relevant charges have been paid to the custodian.

• (17) Where it appears to the custodian that more than one person is the owner of the vehicle, or person authorised by the owner, the custodian must give possession of the vehicle to the first claimant who satisfies the conditions set out in paragraph (16).

• (18) If before the end of the period of one year beginning with the date on which a vehicle is disposed of pursuant to this article, a person claims to have been the owner of the vehicle at the time when it was disposed of and the conditions specified in paragraph (19) are fulfilled, a sum calculated in accordance with paragraph (20) is payable by the custodian to the owner.

• (19) The conditions are that—

• (a) the person claiming satisfies the custodian that the person so claiming was the owner of the vehicle at the time it was disposed of;

• (b) the claim is made before the end of the period of one year beginning with the date on which the vehicle was disposed of; and

• (c) no previous claim in respect of the vehicle has been made.

• (20) The sum payable under paragraph (18) is calculated by deducting from the proceeds of sale the relevant charges that would have been payable had the vehicle been claimed by the owner immediately before its disposal.

• (21) Where it appears to the custodian of a vehicle that more than one person is the owner, the custodian must treat the first person who makes a claim that satisfies the conditions set out in paragraph (19) as the owner for the purposes of this article.

• (22) For the purposes of this article the owner of a vehicle is taken to be the person by whom the vehicle is kept and in determining for those purposes who was the owner of the vehicle at any time, it is presumed (unless the contrary appears) that the owner was the person in whose name the vehicle was at that time registered under the Vehicle Excise and Registration Act 1994.

• (23) For the purposes of this article “breaking down” includes by way of a mechanical defect, lack of fuel, oil, water or power required for the vehicle or any other circumstances in which a person in charge of the vehicle could not immediately, safely and without damage to the vehicle or its accessories drive it under its own power away from the tunnel area.

• (24) In this article—

• “GB registration mark” means a registration mark issued in relation to a vehicle under the Vehicle Excise and Registration Act 1994;

• “HPI Ltd” means HPI Limited (company number 04068979), whose registered office is at Capitol House, Bond Court, Leeds, Yorkshire, England, LS1 5EZ, being a company incorporated under the Companies Act 1985 and includes its successors and assigns;

• “information relating to the disposal” means, in relation to a vehicle— any information which is sufficient to relate the information now being given to any information previously given to the same person in respect of the removal, storage or disposal of the vehicle; such of the specified information as has not been previously given to the same person in respect of the removal, storage or disposal of the vehicle; and information as to whether the vehicle was disposed of by destruction or by sale and if by sale, the sum realised.

• “owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;

• “person responsible”, in relation to a vehicle, means— the owner of the vehicle at the time when it was put in the place from which it was removed as mentioned in paragraph (1), unless the owner demonstrates that the owner was not concerned in, and did not know of, the vehicle being put in the tunnel area; any person by whom the vehicle was put in that place; any person convicted of an offence under section 2(1) (penalty for unauthorised dumping) of the Refuse Disposal (Amenity) Act 1978⁹⁰ in consequence of the putting of the vehicle in that place;

• “relevant charges” means the sums and charges prescribed by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges) Regulations 2008⁹¹;

• “specified information”, in relation to a vehicle, means such of the following information as can be, or could have been, ascertained from an inspection of the vehicle, or has been ascertained from any other source— in the case of a vehicle which carries a GB registration mark, or a mark indicating registration in a country outside Great Britain, particulars of such mark; and the make of the vehicle; and

• “vehicle” means any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle.

Removal of obstructions

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• (1) Where an obstruction or hazard is caused in the tunnel area by a load falling from a vehicle and the person in charge of the vehicle fails to remove it, an authorised person may take all reasonable steps to remove the load.

• (2) An authorised person—

• (a) may return a load which the authorised person has removed immediately to the person in charge of the vehicle from which it has fallen; or

• (b) where a return of the load which the authorised person has removed to the person in charge of the vehicle from which it has fallen is not practicable or appropriate, must deliver the load to the undertaker or to a person authorised by the undertaker to keep loads so removed (“the custodian” in either case).

• (3) The custodian must take reasonable steps to ascertain the identity of the owner of the load.

• (4) Where the custodian has been unable to ascertain contact details for the owner of the load, the custodian may dispose of or sell the load as the custodian thinks fit.

• (5) Where the custodian has been able to ascertain contact details for the owner of the load, the custodian must notify such person that—

• (a) the load is in the possession of the custodian;

• (b) the owner must take possession of the load within 5 weeks of the date of the notice;

• (c) the owner may only take possession of the load on the payment of the custodian’s expenses in removing and storing the load; and

• (d) if the owner fails to act in accordance with the requirements in the notice, title in the load vests in the custodian.

• (6) The custodian may recover any expenses reasonably incurred in the removal and storage of a load from the owner of the load.

• (7) Unless the owner of the load acts in accordance with the notice requirements, title in the load vests in the custodian on the date specified in the notice.

• (8) Where a load consists of, or includes, liquids or semi-liquids or items which are loose or an aggregate, or noxious, perishable or otherwise hazardous or difficult to collect-up or remove, and the driver of the vehicle fails to remove it or the fallen load poses a hazard, paragraphs (2) to (7) do not apply and an authorised person or custodian (as the case may be) may, as it sees fit, immediately wash, clean or clear away or remove the fallen load or otherwise dispose of it or sell it.

• (9) In this article “vehicle” means any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle.

Dangerous goods

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• (1) The undertaker is to be treated as having in the tunnel area the same enforcement powers as any body mentioned in regulation 32 (enforcement) of the Carriage of Dangerous Goods and the Use of Transportable Pressure Equipment Regulations 2009⁹² (“the 2009 Regulations”) in relation to roads and to the extent permitted by regulation 32.

• (2) The exercise of the enforcement powers mentioned in paragraph (1) is subject to any limitation which applies to the Health and Safety Executive under the 2009 Regulations.

• (3) Nothing in this article prejudices or prevents a body mentioned in regulation 32 of the 2009 Regulations from exercising any power conferred on it by those Regulations.

Byelaws relating to the tunnel area

44

• (1) The undertaker may make byelaws regulating—

• (a) the efficient management and operation of the tunnel area;

• (b) travel in the tunnel area;

• (c) the maintenance of order in the tunnel area;

• (d) the conduct of persons in the tunnel area.

• (2) The byelaws contained in Schedule 8 (byelaws) have effect in relation to the tunnel area and continue to have effect until such time as they are amended or revoked by further byelaws made under paragraph (1) and in each case are to be treated as if they are byelaws that have been made by the undertaker under paragraph (1) and confirmed by the Secretary of State on the date this Order comes into force.

• (3) Subject to paragraph (4), the provisions of subsection 236(3) to (8), and (11) (procedure, etc., for byelaws) of the Local Government Act 1972⁹³ apply in relation to byelaws other than those in Schedule 8 made by the undertaker under paragraph (1), as if the undertaker were a local authority for the purposes of subsection 236(1) of the Local Government Act 1972.

• (4) The undertaker may make byelaws under paragraph (1) in accordance with the procedure in the Byelaws (Alternative Procedure) (England) Regulations 2016⁹⁴ as if those regulations applied to the making and revoking of byelaws under this article.

• (5) Byelaws made under this article are enforceable by the undertaker and any authorised person.

• (6) A person who breaches a byelaw made under this article commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Fixed penalty notices

45

• (1) This article applies where it appears to an authorised person that a person has committed an offence under byelaws made under article 44 (byelaws relating to the tunnel area).

• (2) The authorised person may serve on that person a fixed penalty notice in respect of the offence.

• (3) Where a person is given a fixed penalty notice under this article in respect of an offence—

• (a) no proceedings may be instituted for that offence before the expiration of 14 days after the date of the notice; and

• (b) that person may not be convicted of the offence if the fixed penalty is paid before the expiration of 14 days after the date of the notice.

• (4) A fixed penalty notice must state—

• (a) the amount of the fixed penalty;

• (b) particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence;

• (c) the time by which and the manner (including the number to be used for payments by credit or debit card) in which the fixed penalty must be paid; and

• (d) that proceedings may be instituted if payment is not made within the time specified in the fixed penalty notice.

• (5) The amount of the fixed penalty is—

• (a) one fifth of the maximum amount of the fine to which the person to whom the fixed penalty notice is issued would be liable on summary conviction provided that person pays the fixed penalty in full within 7 days of issue of the fixed penalty notice; or

• (b) one half of the maximum amount of the fine to which the person to whom the fixed penalty notice is issued would be liable on summary conviction.

• (6) An authorised person may require a person to whom this article applies to pay a deposit of one tenth of the maximum amount of the fine to which a person may be liable under level 3 on the standard scale on accepting a fixed penalty notice if that person fails to provide, when requested, a residential address in the United Kingdom.

• (7) Payment of the deposit must be made—

• (a) in person to the authorised person by cash, credit or debit card, if the authorised person has the necessary means to accept payment in that manner;

• (b) by telephone by credit or debit card to the number stipulated in the fixed penalty notice for making payments; or

• (c) by App.

• (8) The undertaker must apply the deposit towards payment of the fixed penalty.

• (9) In any proceedings a certificate which—

• (a) purports to be signed on behalf of an officer of the undertaker; and

• (b) states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

• (10) In this article—

• “App” means a software application for use on an electronic device which provides for payment by credit or debit card and which is provided by the undertaker for that purpose;

• “credit card” means a card or similar thing issued to any person, use of which enables the holder to defer payment of the deposit;

• “debit card” means a card or similar thing issued by any person, use of which causes the deposit to be paid by the electronic transfer of funds from any current account of the holder at a bank or other institution providing banking facilities; and

• “fixed penalty notice” means a notice offering the opportunity of the discharge of liability to conviction of an offence under byelaws made under article 44.

Classification of roads, etc.

46

• (1) On the date on which the roads described in Parts 1 to 8 of Schedule 9 (classification of roads etc.) are completed and open for traffic—

• (a) the roads described in Parts 1, 2 and 6 of Schedule 9 are to become trunk roads as if they had become so by virtue of an order made under section 10(2)⁹⁵(general provision as to trunk roads) of the 1980 Act specifying that date as the date on which they were to become trunk roads;

• (b) subject to sub-paragraph (c), the roads described Parts 3, 4, 5, 7 and 8 of Schedule 9 are to be classified as set out in that Part and are to be a classified road for the purpose of any enactment or instrument which refers to highways classed as classified roads, as if such classification had been made under section 12(3) (general provision as to principal and classified roads) of the 1980 Act; and

• (c) the roads described in paragraph 11 in Part 4, paragraph 18 in Part 7 and paragraph 22 in Part 8 of Schedule 9 are to be unclassified.

• (2) Subject to paragraph (3), the undertaker may vary the classification of the roads, or any part of those roads, provided for in paragraph (1) and such variation may provide for any trunk road comprised in the authorised development and referred to in paragraph (1)(a) to be classified as a special road.

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

• (a) given not less than 4 weeks’ notice in writing of the undertaker’s intention so to do to the chief officer of police and to the local highway authority in whose area the road is situated; and

• (b) published a notice, declaring the date on which that road or part of it is to be classified, not less than 7 days before that date, in at least one local newspaper circulating in the area in which the road or, as the case may be, the relevant part of it is situated and in the London Gazette.

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

• (5) Any roads classified as a special road in accordance with paragraph (2) are to be—

• (a) classified as special roads for the purpose of any enactment or instrument which refers to highways classified as special roads; and

• (b) provided for the use of traffic of Classes I and II of the classes of traffic set out in Schedule 4 (classes of traffic for purposes of special roads) to the 1980 Act.