Legalize / United Kingdom / Statutory-Instrument

The A38 Derby Junctions Development Consent Order 2023

Type Statutory-Instrument

Publication 2023-08-17

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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

(3) 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 as modified by article 29 (modification of Part 1 of the 1965 Act);

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

(4) Paragraphs (2) and (3) 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.

Rights under or over streets

32

(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 and may use the subsoil or airspace for those purposes or 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 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is a statutory undertaker to whom section 85 (sharing of 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 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 authority to acquire land compulsorily)—

(a) enter on and take temporary possession of—

(i) the land specified in column (1) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule relating to the part of the authorised development specified in column (3) of that Schedule; and

(ii) any other Order land in respect of which no notice of entry has been served under section 11⁷³ (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 that land;

(d) construct any permanent works specified in relation to that land in column (2) of Schedule 7 (land of which temporary possession may be taken), or any other mitigation works required in connection with the authorised development as identified in the environmental statement.

(2) Not less than 14 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 must not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) 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 of the 1965 Act or made a declaration under section 4 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 condition and level it was in on the date on which possession of the land was first taken by the undertaker or such other condition as may be agreed with 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 (including ground strengthening works) have been constructed under paragraph (1)(d); or

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

(5) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession 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, is to be determined as if it were a dispute under Part 1 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 the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

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

(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 13⁷⁴ (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) Paragraph (1)(a)(ii) does not authorise the undertaker to take temporary possession of any land which the undertaker is not authorised to acquire under article 23 (compulsory acquisition of land) or article 26 (compulsory acquisition of rights).

Temporary use of land for maintaining the authorised development

34

(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a) enter upon and take temporary possession of any land within the Order limits if such 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 explaining the purpose for which entry 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 condition and level it was in on the date on which possession of the land was first taken by the undertaker or such other condition as may be agreed with the owners of the land.

(6) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (5) does not prevent the undertaker giving up possession of the land.

(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, is to be determined as if it were a dispute under Part 1 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 execution 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 that part of the authorised development is first opened for use.

Statutory undertakers

35

(1) Subject to the provisions of article 26(3) (compulsory acquisition of rights), Schedule 9 (protective provisions) and paragraph (2), the undertaker may—

(a) acquire compulsorily, or acquire new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and

(b) extinguish the rights of, or 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; and

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

Apparatus and rights of statutory undertakers in stopped up streets

36

(1) Where a street is stopped up under article 16 (permanent stopping up and restriction of use 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 16 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 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 2003⁷⁵.

Recovery of costs of new connections

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(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 35 (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 35, 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 36 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this article—

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

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

Special category land

38

(1) 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 relevant planning authority) has certified that a satisfactory scheme for the provision of the replacement land as open space and a satisfactory 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 requirements of paragraph (1) being satisfied, the rights to be acquired over the special category (rights) land are to vest in the 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 28(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 of paragraph (1), the replacement land is to vest in the 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 replacement land” means the land identified as such and numbered 2/1r, 2/1s, 2/2p, 2/2q, 2/2s, 2/2t, 3/1y, 3/2r, 3/22c, 3/23, 3/24, 3/25, 3/26, 3/27, 4/1a, 4/2a, 4/2b, 4/2c, 4/2d, 4/2e, 4/2g, 4/2h, 4/2j, 4/2m, 4/2n, 4/2o, 4/3, 4/4, 4/5, 4/6, 4/7a, 4/7b, 4/7c, 4/8, 4/9, 4/10, 4/11, 4/12, 4/13a, 4/14 and 4/15 in the book of reference and on the special category land plans;

“the special category land” means the land numbered 1/1c, 1/1d, 1/2, 2/1e, 2/1g, 2/1h, 2/1i, 2/2c, 2/5, 2/7b, 2/10, 3/1u, 3/1y, 3/1z, 3/2l, 3/2m, 3/2n, 3/2q, 3/2r, 4/1a, 4/1e, 4/1g, 4/2a, 4/2e, 4/2f, 4/2g, 4/2h, 4/2i, 4/2j, 4/2k, 4/2l, 4/2m, 4/2n, 4/2o, 4/2p, 4/14 and 4/15 in the book of reference and on the special category land plans and forming part of open space which may be acquired compulsorily under this Order;

“the special category (rights) land” means the land numbered 1/4b, 2/1b, 2/1c, 2/1f, 2/7a, 2/8, 2/9, 3/1w, 3/1x, 4/1b and 4/1d in the book of reference and on the special category land plans and forming part of open space over which rights may be acquired compulsorily under this Order.

PART 6 — OPERATIONS

Felling or lopping of trees and removal of hedgerows

39

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

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised 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—

(a) do no unnecessary damage to any tree or shrub;

(b) pay compensation to any person for any loss or damage arising from such activity; and

(c) take steps to avoid a breach of the provisions of the Wildlife and Countryside Act 1981⁷⁶ and the Conservation of Habitats and Species Regulations 2017⁷⁷ or any successor acts and regulations.

(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 as if it were a dispute under Part 1 of the 1961 Act.

(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits and as shown on the hedgerows plans that is required to be removed.

(5) In this article—

“hedgerow” includes a hedgerow to which the Hedgerows Regulations 1997⁷⁸ apply and includes important hedgerows;

“the hedgerows plans” means the plans certified by the Secretary of State as the hedgerows plans for the purposes of this Order.

Trees subject to tree preservation orders

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(1) The undertaker may fell or lop any tree described in Schedule 8 (trees subject to tree preservation orders), cut back its roots or undertake such other works described in column (2) of that Schedule relating to the relevant part of the authorised development described in column (3) of that Schedule, 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)—

(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;

(b) the duty contained in section 206(1)⁷⁹ (replacement of trees) of the 1990 Act is not to apply although where possible the undertaker is to seek to replace any trees which are removed; and

(3) The authority given in 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 as if it were a dispute under Part 1 of the 1961 Act.

PART 7 — MISCELLANEOUS AND GENERAL

Application of landlord and tenant law

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(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

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

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

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

Operational land for purposes of the 1990 Act

42

Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as operational land for the purposes of that Act) of the 1990 Act.

Defence to proceedings in respect of statutory nuisance

43

(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990⁸⁰ in relation to a nuisance falling within paragraph (g) of section 79(1) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act no order is to be made, and no fine may be imposed, under section 82(2)⁸¹ of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974⁸²; or

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

(b) the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9)⁸³ (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Protective provisions

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Schedule 9 (protective provisions) has effect.

Crown Rights

45

(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the undertaker or any licensee—

(a) to take, use, enter upon or in any manner interfere with any land or rights of any description—

(i) belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

(ii) belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land;

(iii) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department; or

(b) to exercise any right under this Order compulsorily to acquire an interest in any land which is Crown Land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown without the consent in writing of the appropriate Crown authority (as defined in the 2008 Act).

(2) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.

Certification of plans etc.

46

(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of each of the plans and documents set out in Schedule 10 (documents to be certified) for certification that they are true copies of the plans and documents referred to in this Order.

(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).

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

Service of notices

47

(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post;

(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978⁸⁴ as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Arbitration

48

Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the Lands Chamber of the Upper Tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

Removal of human remains

49

(1) In this article “the specified land” means the land within the Order limits.

(2) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

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

(a) publishing a notice for two successive weeks in a newspaper circulating in the area of the authorised development; and

(b) displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a) removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b) removed to, and cremated in, any crematorium,

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question must be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

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

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

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

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

then subject to paragraph (10), the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose and, so far as possible, remains from individual graves are to be re-interred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a) a certificate of re-interment or cremation is to be sent to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b) a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) must be sent by the undertaker to the relevant planning authority.

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

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

(14) Section 25 of the Burial Act 1857⁸⁵ (offence of removal of body from burial ground) does not apply to a removal carried out in accordance with this article.

SCHEDULE 1 — AUTHORISED DEVELOPMENT

The authorised development is a nationally significant infrastructure project as defined in sections 14 and 22⁸⁶ of the 2008 Act, and associated development within the meaning of section 115(2)⁸⁷ of the 2008 Act, comprising:

In the administrative area of Derby City Council:

Kingsway

Work No. 1 – shown on sheet no. 1 of the works plans being the alteration, re-alignment and grading of the northbound and southbound lanes of the A38 totalling 1.2 kilometres in length to include— the construction of a drainage attenuation pond and pipe outfall into Bramble Brook adjacent to the altered A38 (Work No. 1) including a private means of access; the diversion of the existing Bramble Brook and connection into a new section of culvert; the construction of a flood storage area with piped outfall return to Bramble Brook adjacent to the drainage attenuation pond (Work No. 1(a)); the extension of the existing Bramble Brook culvert 152 metres in length; the extension of the existing Bramble Brook culvert for a length of 30 metres in a north westerly direction below the southbound A38 merge slip road (Work No. 5) and the realigned A38 (Work No. 1); the construction of flood storage areas; the improvement of a non-segregated footway/cycle track 80 metres in length on each side of Lyttelton Street; the construction of a gantry or similar signage 55m south of the southbound A38 diverge slip road (Work No. 4) at chainage 1850m; the widening of the Brackensdale Avenue east and west underbridges; works to effect the stopping up of part of the entry and exit lanes off Brackensdale Avenue which connect to the A38; the construction of a gantry or similar signage at chainage 2080m; works to effect the stopping up of the entry and exit lanes of Raleigh Street which connect to the A38; and the alteration of part of Brackensdale Avenue slip road which connects to the A38.

Work No. 2 – shown on sheet no. 1 of the works plans being the construction of a northbound diverge slip road off the A38 570 metres in length that begins at the realigned A38 (Work No. 1) and connects to the Kingsway West Roundabout (Work No. 6(a)) to include the construction of highway drainage attenuation, outfall and access.

Work No. 3 – shown on sheet no. 1 of the works plans being the construction of a northbound merge slip road 550 metres in length off the Kingsway West Roundabout (Work No. 6(a)) connecting into the realigned A38 (Work No. 1), to include the construction and realignment of a section of the National Cycling Network (No. 68 and 54) and the Regional Route (No. 66) 170 metres in length, as shown on the streets rights of way and access plan.

Work No. 4 – shown on sheet no. 1 of the works plans being the construction of a southbound A38 diverge slip road 540 metres in length that begins at the realigned A38 (Work No. 1) and connects into the Kingsway East Roundabout (Work No. 6(b)).

Work No. 5 – shown on sheet no. 1 of the works plans being the construction of a southbound A38 merge slip road 510 metres in length beginning at the Kingsway East Roundabout (Work No. 6(b)) and connecting to the realigned A38 (Work No. 1).

Work No. 6 – shown on sheet no. 1 of the works plans being the alteration, realignment and grading of the A5111, to include— the construction of a roundabout (the Kingsway West Roundabout) connecting to the northbound diverge slip road (Work No. 2) and the northbound merge slip road (Work No. 3); the construction of a roundabout (the Kingsway East Roundabout) connecting to the southbound diverge slip road (Work No. 4) and the southbound merge slip road (Work No. 5); the construction of a link road 65 metres in length connecting the Kingsway East Roundabout and the Kingsway West Roundabout including the construction of an over bridge; the construction of 2 controlled crossings in an east and west bound direction; the construction, improvement and widening of an existing footway to a non-segregated footway/cycle track 110 metres in length; the construction, improvement and widening of an existing footway to a non-segregated footway/cycle track 20m in length; and the construction of a footway/cycle track 300 metres in length linking the A5111 Kingsway to Greenwich Drive south and the National Cycle Routes.

Work No. 7 – shown on sheet no. 1 of the works plans being the construction of a link road 220 metres in length connecting the Kingsway East Roundabout (Work No. 6(b)) and Kingsway Park Close to include— the construction of a new junction and footways; the reconfiguration of the existing junction between Lyttelton Street and Kingsway Park Close; and the construction, improvement and realignment of the existing footway/cycle track 50m in length including a controlled crossing.

Work No. 8 – shown on sheet no. 1 of the works plans being the establishment of environmental mitigation areas to the west and east of the realigned A38 (Work No. 1) at— Mackworth Park; and Kingsway Hospital.

Work No. 9 – shown on sheet no. 1 of the works plans being the diversion of utilities to accommodate the realignment of the A38, to include the diversion of— an 11kV electricity cable by 720 metres; an 11kV electricity cable by 137 metres; an 11kV electricity cable by 115 metres; an 11kV electricity cable by 115 metres; a telecoms cable by 45 metres; a telecoms cable by 72 metres; a foul sewer pipe by 33 metres; a water trunk main by 474 metres; a water trunk main by 61 metres; an 11 kV electricity cable by 61 metres; a 132 kV electricity cable by 61 metres; and a gas main by 61 metres.

Markeaton

Work No. 10 – shown on sheet no. 2 of the works plans and being the alteration, realignment and grading of the northbound and southbound lanes of the A38 totalling 1.25 kilometres in length to include— the construction of a gantry or similar signage 105 metres south of the A38 northbound diverge slip road (Work No. 11) at chainage 2310; the construction of a gantry or similar signage 115 metres south of the A38 northbound merge slip road (Work No. 12) at chainage 2890; the demolition of the existing Markeaton Park footbridge and the construction of a replacement footbridge including reconfigured ramps and steps; the construction of a gantry or similar signage 20 metres south of the northbound diverge slip road connecting to Kedleston Road (Work No. 17) at chainage 3250; and the construction of a gantry or similar signage 70 metres north of the A38 northbound diverge slip road (Work No. 17) at chainage 3375.

Work No. 11 – shown on sheet no. 2 of the works plans and being the construction of a northbound diverge slip road 330 metres in length beginning at the realigned A38 (Work No. 10) and connecting to Markeaton Junction Roundabout (Work No. 16(a)), to include— the construction of a gantry or similar signage 35 metres north of the northbound A38 diverge slip road (Work No. 11) at chainage 2500; works to effect the stopping up of Enfield Road entry and exit roads onto the realigned A38 including a turning head (Work No. 10); and amendments to the access and egress for the filling station and fast-food site.

Work No. 12 – shown on sheet no. 2 of the works plans and being the construction of a northbound merge slip road 255 metres in length beginning at the Markeaton Junction Roundabout (Work No. 16(a)) and connecting to the realigned A38 (Work No. 10).

Work No. 13 – shown on sheet no. 2 of the works plans and being the construction of a southbound diverge slip road 275 metres in length beginning at the realigned A38 (Work No. 10) and connecting to Markeaton Junction Roundabout (Work No. 16(a)), to include— the construction of a pumping station adjacent to the realigned A38 (Work No. 10) to include associated drainage works; a pond; and an access track and footway/cycle track.

Work No. 14 – shown on sheet no. 2 of the works plans and being the construction of a southbound merge slip road 280 metres in length beginning at the Markeaton Junction Roundabout (Work No. 16(a)) and connecting to the realigned A38 (Work No. 10).

Work No. 15 – shown on sheet no. 2 of the works plans and being the construction, improvement and realignment of the existing cycle Regional Route (No. 66) 1.2 kilometres in length adjacent to the realigned A38 (Work No. 10).

Work No. 16 – shown on sheet no. 2 of the works plans and being the alteration realignment and grading of the A52, to include— the construction of a roundabout (the Markeaton Junction Roundabout) connecting the realigned A52 (Work No. 16) with the northbound A38 diverge and merge slip roads (Work Nos 11 and 12) and the southbound A38 diverge and merge slip roads (Work Nos 13 and 14) including the construction of two over bridges; the construction of a new junction for access to and egress from Markeaton Park 110 metres in length including a roundabout and a park and ride bus stop; the construction and alteration of a private means of access to Sutton Close and 253 and 255 Ashbourne Road; works to the entrance of Markeaton Park and the construction of a new emergency only access from Markeaton Park 20 metres in length; relocation of 186 metres in length of the boundary wall to Markeaton Park; alterations to the access to and egress from the filling station and fast-food site; alterations to the access to and egress from the A52 to the Royal School for the Deaf; and removal and relocation of a mobile phone mast.

Work No. 17 – shown on sheet no. 2 of the works plans and being the realignment and grading of the A38 northbound diverge slip road 200 metres in length connecting to the realigned A38 (Work No. 10) to Kedleston Road.

Work No. 18 – shown on sheet no. 2 of the works plans and being the realignment and grading of the A38 southbound merge slip road 185 metres in length connecting Kedleston Road with the realigned A38 (Work No. 10).

Work No. 19 – shown on sheet no. 2 of the works plans and being the construction of a temporary compound area/material storage area.

Work No. 20 – shown on sheet no. 2 of the works plans being the establishment of environmental mitigation areas to the west and east of the realigned A38 (Work No. 10).

Work No. 21 – shown on sheet no. 2 of the works plans being the diversion and construction of a utility corridor housing multiple utility apparatus as specified in this work no., including the diversion of— an 11kv cable by 627 metres; an 11kv cable by 625 metres; an 11kv cable by 623 metres; a foul sewer pipe of 480 metres; a foul sewer pipe of 269 metres; a foul sewer pipe of 506 metres; a cadent medium pressure pipe by 654 metres; a combined sewer pipe by 512 metres; a mains water pipe by 491 metres; a telecoms cable by 1146 metres; a telecoms cable by 785 metres; and a telecoms cable by 847 metres.

Work No. 22 – shown on sheet no. 2 of the works plans being the diversion of utilities to accommodate the realignment of the A38 (Work No. 10), to include the diversion of— an 11kV electricity cable by 309 metres; an 11kV electricity cable by 7 metres; a water trunk main by 773 metres; a foul sewer pipe by 308 metres; a foul sewer pipe by 25 metres; a telecoms cable by 28 metres; a telecoms cable by 414 metres; and a telecoms cable by 17 metres.

In the administrative area of Derby City Council, Derbyshire County Council and Erewash Borough Council:

Little Eaton

Work No. 23 – shown on sheet no. 3 of the works plans and being the alteration, re-alignment and grading of the northbound and southbound lanes of the A38 totalling 1.3 kilometres in length to include— works to effect the stopping up and diversion of a section of the Breadsall Footpath (No.7) 100 metres in length as shown on the streets rights of way and access plan and works to effect the stopping up and diversion of a private means of access 100 metres in length; the alteration and extension of the existing flood arch bridge; the alteration and extension of the existing railway bridge; and the construction of two new bridges over Little Eaton Roundabout (Work No. 30(a)).

Work No. 24 – shown on sheet no. 3 of the works plans and being the construction of a northbound diverge slip road 215 metres in length beginning at the realigned A38 (Work No. 23) and connecting to Little Eaton Roundabout (Work No. 30(a)).

Work No. 25 – shown on sheet no. 3 of the works plans and being the construction of a northbound merge slip road 380 metres in length beginning at Little Eaton Roundabout (Work No.30(a)) and connecting to the realigned A38 (Work No. 23).

Work No. 26 – shown on sheet no. 3 of the works plans and being the construction of a southbound diverge slip road 540 metres in length beginning at the realigned A38 (Work No. 23) and connecting to Little Eaton Roundabout (Work No. 30(a)), to include— the alteration and extension of an existing culvert 125 metres in length; the alteration and extension of an existing culvert 290 metres in length under the realigned A38 (Work No. 23); the diversion of the existing Dam Brook watercourse by 340 metres connecting to the culvert beneath the A61 (Alfreton Road); works to effect the stopping up and diversion of a section of the Breadsall Foot Path (No. 3) for a distance of 405 metres as shown on the streets rights of way and access plan; the construction of two drainage attenuation ponds and piped outfall into Dam Brook including the construction of a private access to the attenuation ponds; ecology mitigation including ponds; the construction of a segregated left lane to the A61; and a flood alleviation channel including environmental mitigation measures.

Work No. 27 – shown on sheet no. 3 of the works plans and being the construction of a southbound merge slip road 280 metres in length beginning at the Little Eaton Roundabout (Work No. 30(a)) and connecting to the realigned A38 (Work No. 23).

Work No. 28 – shown on sheet no. 3 of the works plans and being the works to stop up Ford Lane, to include the construction of a turning head.

Work No. 29 – shown on sheet no. 3 of the works plans and being works to alter Ford Lane Bridge.

Work No. 30 – shown on sheet no. 3 of the works plans and being the alteration, realignment and grading of the A61 (Alfreton Road), to include— the alteration of a roundabout (Little Eaton Roundabout) connecting the realigned A61 (Work No. 30) with the northbound A38 diverge and merge slip roads (Works Nos 24 and 25) the southbound A38 merge slip roads (Works Nos 26 and 27) the realigned B6179 (Work No. 30(b)) and Ford Lane (Work No. 30(c)); the realignment and grading of the B6179 to connect to Little Eaton Roundabout (Work No. 30(a)); the realignment and grading of Ford Lane to connect with Little Eaton Roundabout (Work No. 30(a)); the construction and diversion of the existing National Cycle Network Route No. 54 around Little Eaton Roundabout (Work No. 30(a)) connecting to the B6179 for 340 metres; and works to effect the stopping up and relocation of the private means of access adjacent to the realigned Alfreton Road.

Work No. 31 – shown on sheet no. 3 of the works plans and being the construction of a flood plain compensation area from the River Derwent adjacent to the existing A38 including access; and the diversion of a foul sewer by 244 metres in length.

Work No. 32 – shown on sheet no. 3 of the works plans and being the erection and accommodation of a temporary works compound.

Work No. 33 – shown on sheet no. 3 of the works plans and being the realignment of Ford Lane and reconfiguration of the junction with Lambourn Drive.

Work No. 34 – shown on sheet no. 3 of the works plans and being the reconfiguration of the junction between the A6 Duffield Road and Ford Lane.

Work No. 35 – shown on sheet no. 3 of the works plans being the diversion of utilities to accommodate the realignment of the A38, to include the diversion of— an 11kV electricity cable by 106 metres; an 11kV electricity cable by 409 metres; a water trunk main by 326 metres; a water trunk main by 332 metres; a foul sewer pipe by 521 metres; a cadent medium pressure gas pipe by 192 metres; a telecoms cable by 84 metres; a telecoms cable by 221 metres; a combined sewer pipe by 86 metres; and an 11 kV electricity cable by 211 metres.

Work No. 36 – shown on sheets nos 1, 2, 3 and 4 of the works plans being the installation of advanced directional signage, safety barriers and associated equipment.

Work No. 37 – shown on sheet no. 3 of the works plans being the establishment of environmental mitigation areas to the north of the realigned A38 (Work No. 10). In connection with the construction of any of those works, further development within the Order limits consisting of— alteration to the layout of any street permanently or temporarily, including but not limited to increasing or reducing the width of the carriageway of the street by reducing or increasing the width of any kerb, footpath, footway, cycle track or verge within the street; and altering the level of any such kerb, footpath, footway, cycle track or verge; works required for the strengthening, improvement, maintenance or reconstruction of any street; refurbishment works to any existing bridge; the strengthening, alteration or demolition of any structure; ramps, means of access including private means of access, public rights of way, cycle tracks and crossing facilities; embankments, viaducts, aprons, abutments, shafts, foundations, retaining walls, barriers, pumping stations, parapets, drainage, outfalls, ditches, wing walls, highway lighting, fencing and culverts; street works, including breaking up or opening up a street, or any sewer, drain or tunnel under it; tunnelling or boring under a street; works to place, alter, remove or maintain street furniture or apparatus in a street, or apparatus in other land, including mains, sewers, drains, pipes, cables, ducts and lights; works to alter the course of or otherwise interfere with a watercourse, including private water supplies; landscaping, noise bunds and barriers, works associated with the provision of ecological mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development; works for the benefit or protection of land affected by the authorised development; site preparation works, site clearance (including fencing, vegetation removal and demolition of existing structures), earthworks (including soil stripping and storage, site levelling), and remediation of contamination; the felling of trees; working sites, storage areas, temporary vehicle parking, construction fencing, perimeter enclosure, security fencing, construction-related buildings, temporary worker accommodation facilities, welfare facilities, construction lighting, haulage roads and other buildings, machinery, apparatus, works and conveniences; and the provision of other works including pavement works, kerbing and paved areas works, signing, signals, gantries, road markings works, traffic management measures including temporary roads and such other works as are associated with the construction of the authorised development.

SCHEDULE 2 — REQUIREMENTS

PART 1 — REQUIREMENTS

Interpretation

1

In this Schedule—

“CEMP” means the construction environmental management plan;

“contaminated land” has the same meaning as that given in section 78A of the Environmental Protection Act 1990⁸⁸;

“core hours” means the period of working hours of 7:30 to 18:00 on any day from Monday to Friday except Good Friday, Christmas Day or a bank holidays and 8:00 to 13:00 on Saturdays and in this definition a “bank holiday” means a holiday as defined in section 1 (bank holidays) of the Banking and Financial Dealings Act 1971⁸⁹;

“County Archaeologist” means the individual nominated or appointed as such by the relevant planning authority;

“Ecological Clerk of Works” means the individual appointed as such by the undertaker;

“HEMP” means the handover environmental management plan, being the CEMP to be developed towards the end of the construction of the authorised development which is to contain— the environmental information needed for the future maintenance and operation of the authorised development; the long-term commitments to aftercare, monitoring and maintenance activities relating to the environmental features and mitigation measures that will be required to ensure the continued long-term effectiveness of the environmental mitigation measures as set out in the outline environmental management plan and the prevention of unexpected environmental impacts during the operation of the authorised development; and a record of the consents, commitments and permissions resulting from liaison with statutory bodies;

“preliminary works” means the works set out in table 1.1 of the outline environmental management plan and for the purposes of these requirements the preliminary works are a part and where any requirement allows discharge for a part, discharge may be sought for the preliminary works only;

“protected species” means species which are subject to protection under the laws of England or which are European protected species and in this definition “European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017⁹⁰.

Time limits

2

The authorised development must not commence later than the expiration of 5 years beginning with the date on which this Order comes into force.

Construction Environmental Management Plan

3

(1) No part of the authorised development is to commence until a CEMP for that part has been prepared in consultation with the relevant planning authority, the local highway authority and the Environment Agency and submitted to and approved in writing by the Secretary of State.

(2) The CEMP must—

(a) be substantially in accordance with the outline environmental management plan;

(b) contain a record of all the sensitive environmental features that have the potential to be affected by the construction of the proposed development;

(d) require adherence to the core hours, except for—

(i) night time closures for Markeaton footbridge demolition and installation of a new footbridge;

(ii) junction and slip road tie-in works to existing highways;

(iii) installation of bridge decks;

(iv) installation of sign gantries;

(v) installation of temporary and permanent line markings;

(vi) overnight traffic management measures, as agreed with the local highway authority;

(vii) works associated with traffic management and signal changes; and

(viii) any emergency works.

Provided that written notification of the extent, timing and duration of each activity is given to relevant local authorities in advance of any works that are to be undertaken outside of core hours, except for any emergency works, which are to be notified to the relevant local authorities as soon as is practicable.

Any other work carried out outside the core hours or any extension to the core hours will only be permitted if there has been prior written agreement of the relevant environmental health officer provided that the activity does not result in materially new or materially different environmental effects as reported in the environmental statement.

(3) The authorised development must be constructed in accordance with the approved CEMP.

(4) Prior to completion of construction the undertaker will prepare a HEMP in consultation with the relevant planning authority, the local highway authority and the Environment Agency and submit it to the Secretary of State for written approval.

(5) Upon completion of construction of the authorised development the CEMP must be converted into the HEMP as approved under sub-paragraph (4) and the HEMP must—

(a) be substantially in accordance with the relevant HEMP provisions included in the outline environmental management plan and the CEMP;

(b) contain a record of all the sensitive environmental features that have the potential to be affected by the operation and maintenance of the proposed development; and

(6) The authorised development must be operated and maintained in accordance with the HEMP approved under sub-paragraph (5).

Details of consultation

4

(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule following consultation with another party, the details submitted must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted and the undertaker’s response to that consultation.

(2) At the time of submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under sub-paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.

(3) The consultation with another party referred to under sub-paragraph (1) is to be for a minimum period of 28 days unless otherwise agreed in writing by the relevant consultee.

(4) The undertaker must ensure that any consultation responses are reflected in the details submitted to the Secretary of State for approval under this Schedule, but only where it is appropriate, reasonable and feasible to do so, taking into account considerations including, but not limited to, cost and engineering practicality.

(5) Where the consultation responses are not reflected in the details submitted to the Secretary of State for approval, the undertaker must state in the summary report referred to under sub-paragraph (1) the reasons why the consultation responses have not been reflected in the submitted details.

Landscaping

5

(1) No part of the authorised development other than the preliminary works is to commence until a written landscaping scheme for that part has been submitted to and approved in writing by the Secretary of State following consultation with the relevant planning authority and the local highway authority.

(2) No part of the authorised development, is to commence until an arboricultural walkover survey and tree survey for that part, taking due regard to the guidance in British Standard 5837:2012, have been undertaken to identify any significant constraints posed by trees.

(3) The landscaping scheme prepared under sub-paragraph (1) must be based on the outline environmental management plan and the results of the surveys undertaken under sub-paragraph (2).

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