The M3 Junction 9 Development Consent Order 2024

Made: 16th May 2024

Coming into force in accordance with article 1

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

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the M3 Junction 9 Development Consent Order 2024 and comes into force on 9th October 2024.

Interpretation

2

• (1) In this Order except where provided otherwise—

• “the 1961 Act” means the Land Compensation Act 1961[^f00010];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00011];

• “the 1980 Act” means the Highways Act 1980[^f00012];

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00013];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00014];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00015];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00016];

• “the 2008 Act” means the Planning Act 2008[^f00017];

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

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

• “authorised development” means the development and associated development described in Schedule 1 (authorised development);

• “the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

• “bridleway” has the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

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

• “carriageway” has the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

• “the classification of road plans” means the plans certified by the Secretary of State as the classification of road plans for the purposes of this Order;

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

• “cycle track” has the same meaning as in section 329(1)[^f00018] (further provision as to interpretation) of the 1980 Act and for the purposes of this Order includes parts of a cycle track and a right of way on foot;

• “de-trunking plans” means the plans certified by the Secretary of State as the de-trunking plans for the purposes of this Order;

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form;and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services)[^f00019] of the Communications Act 2003;

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

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

• “footpath” and “footway” have the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

• “highway” has the same meaning as in section 328 (meaning of “highway”) of the 1980 Act;

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

• “the limits of deviation” means the limits of deviation referred to in article 8 (limits of deviation);

• “the local highway authority” means Hampshire County Council;

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

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

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

• “owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981[^f00020];

• “the protected trees and hedgerows to be removed plans” means that plans certified by the Secretary of State as the protected trees and hedgerows to be removed plans for the purposes of this Order;

• “the relevant planning authority” means the local planning authority for the land in question;

• “the revoking existing clearway orders plans” means the plans certified by the Secretary of State as the revoking existing clearway orders plans for the purposes of this Order;

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

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

• “the speed limits plans” means the plans certified by the Secretary of State as the speed limits plans for the purposes of this Order;

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

• “street” means a street within the meaning of section 48^f00021 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

• “street authority” has the same meaning as in section 49 (the street authority and other relevant authorities) of the 1991 Act;

• “traffic authority” has the same meaning as in section 121A[^f00022] (traffic authorities) of the 1984 Act;

• “the traffic regulation measures plans” means the plans certified by the Secretary of State as the traffic regulation measures plans for the purposes of this Order;

• “trunk road” means a highway which is a trunk road by virtue of—section 10[^f00023] (general provision as to trunk roads) or section 19(1)[^f00024] (certain special roads and other highways to become trunk roads) of the 1980 Act;an order made or direction given under section 10 of that Act;an order granting development consent; orany other enactment;

• “the undertaker” means National Highways Limited, company number 09346363, whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;

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

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

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

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

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

• (5) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the relevant plans.

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

• (7) The expression “includes” may be construed without limitation, unless so construing would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

Disapplication of legislative provisions

3

• (1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within any maintenance period defined in article 35(11), any maintenance of any part of the authorised development—

• (a) regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016[^f00025] in relation to the carrying on of a flood risk activity;

• (b) the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 (bye-law making powers of the appropriate agency) to the Water Resources Act 1991[^f00026];

• (c) the provisions of any byelaws made under section 66 (powers to make byelaws) of the Land Drainage Act 1991[^f00027] including, but not limited to, the Southern Water Authority Land Drainage and Sea Defence Byelaws 1981;

• (d) sections 28E (duties in relation to sites of special scientific interest) and 28H (Statutory undertakers, etc.: duty in relation to carrying out operations) of the Wildlife and Countryside Act 1981[^f00028]; and

• (e) in so far as they relate to the temporary possession of land, the provisions of the Neighbourhood Planning Act 2017[^f00029].

• (2) In paragraph 3(1)(a) “flood risk activity”[^f00030] has the meaning given in the Environmental Permitting (England and Wales) Regulations 2016.

Maintenance of drainage works

4

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

• (2) In this article “drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991[^f00031].

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

5

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

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

Maintenance of authorised development

6

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

Planning permission

7

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

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

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

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

Limits of deviation

8

In carrying out the authorised development the undertaker may—

• (a) Subject to paragraphs (b), (c) and (d), deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans;

• (b) in respect of Work Nos. 1(i), 1(l), 1(k), 3(b), 8, 9(c), 9(d), 11, 30, 33, 42, between points A and B, C and D, G and H and I and L only, as shown on the works plans, deviate laterally from the lines or situations of the authorised development shown on the works plans to a maximum of 2.0 metres;

• (c) in respect of Work Nos. 1(j) and 1(m) as shown on the works plans, deviate laterally from the lines or situations of the authorised development shown on the works plans to a maximum of 5.0 metres;

• (d) deviate vertically from the levels of the authorised development shown on the engineering and structural drawings and sections—

• (i) to a maximum of 1 metre upwards or downwards in respect of the construction of the gyratory northern overbridge (Work No. 27), gyratory southern overbridge (Work No. 28), A34 southbound underpass (Work No. 13), A33 underpass (Work No. 14), attenuation basin (Work Nos. 1(j) and 1(m)), M3 southern bridge portal gantry (Work No. 36) and bridleway (Work No. 9);

• (ii) to a maximum of 0.75 metres upwards or downwards in respect of the construction of the retaining walls (Work Nos. 2(d), 12(a), 12(c), 31(a), 32(c), 32(d)), subways (Work Nos. 2(e), 24(a), 24(d), 33(a)), A34 footway/cycleway overbridge (work number 4) and gyratory (Work No. 29);

• (iii) in respect of any other work comprised in the authorised development, to a maximum of 0.5 metres upwards or downwards,

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

Benefit of Order

9

• (1) Subject to article 10 (consent to transfer benefit of Order) and paragraph (2), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.

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

Consent to transfer benefit of Order

10

• (1) The undertaker may—

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

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

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

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

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

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

• (a) Scottish and Southern Energy Power Distribution Limited (company number SC213459, whose registered office is at Inveralmond House, 200 Dunkeld Road, Perth, PH1 3AQ) for the purposes of undertaking Work Nos. 21 and 35;

• (b) Southern Gas Networks plc (company number 05167021, whose registered office is at St Lawrence House, Station Approach, Horley, Surrey, RH6 9HJ) for the purposes of undertaking Work No. 20;

• (c) Southern Water Limited (company number 02366620, whose registered office is at Southern House, Yeoman Road, Worthing, West Sussex, BN13 3NX) for the purposes of undertaking Work No. 5; or

• (d) Openreach Limited (company number 10690039, whose registered office is at Kelvin House, 123 Judd Street, London, WC1H 9NP) for the purposes of undertaking Work No. 26.

PART 3 — STREETS

Street works

11

• (1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets as are within the Order limits and may—

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

• (b) tunnel or bore under the street;

• (c) place apparatus in the street;

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

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