PART 5ACQUISITION AND POSSESSION OF LAND

Temporary use of land for carrying out the authorised development

article 35 + 35.—(1) The undertaker may, in connection with the carrying out of the authorised development—

article 35 1 a + (a)enter on and take temporary possession of—

article 35 1 a i + (i)the land specified in columns (1) and (2) of Schedule 12 (land of which temporary possession only may be taken) for the purpose specified in relation to that land in column (3) of that Schedule; and

article 35 1 a ii + (ii)any other Order land in respect of which no notice of entry has been served under section 11(1) (powers of entry) of the 1965 Act and no declaration has been made under section 4(2) (execution of declaration) of the 1981 Act (in either case other than in connection with the acquisition of rights, imposition of restrictive covenants and/or acquisition of subsoil only);

article 35 1 b + (b)remove any buildings and vegetation from that land that reasonably need to be removed in connection with the carrying out of the authorised development;

article 35 1 c + (c)construct works (including the provision of means of access and erection of fencing or other means of enclosure) and buildings on that land;

article 35 1 d + (d)use the land for the purposes of a working site (including storage of materials and siting of equipment and apparatus) with access to the working site in connection with the authorised development;

article 35 1 e + (e)construct any works, or use the land, as specified in relation to that land in column (3) of Schedule 12, or carry out any mitigation works;

article 35 1 f + (f)break up the surface of the land to construct the authorised development and in the event of an emergency to remove, recover, reposition, repair or maintain underground apparatus;

article 35 1 g + (g)construct such works on that land as are mentioned in Schedule 1 (authorised development); and

article 35 1 h + (h)carry out mitigation works required pursuant to the requirements in Part 1 of Schedule 2 (requirements).

(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.

(3) The undertaker is not required to serve notice under paragraph (2) where the undertaker has identified a potential risk to the safety of any of—

article 35 3 a + (a)the authorised development or any of its parts;

article 35 3 b + (b)the public; or

article 35 3 c + (c)the surrounding environment.

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

article 35 4 a + (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 the end of construction work for that part of the authorised development specified in relation to that land in column (4) of Schedule 12; or

article 35 4 b + (b)in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of the end of construction work for which temporary possession of this land was taken unless the undertaker has, before 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 or has otherwise acquired the land subject to temporary possession.

(5) Unless the undertaker has served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act or otherwise acquired the land or rights over land subject to temporary possession, before giving up possession of land of which temporary possession has been taken, unless otherwise agreed by the owners of the land, the undertaker must remove all works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker must not be required to—

article 35 5 a + (a)replace any building, structure, drain or electric line removed under this article;

article 35 5 b + (b)remove any drainage works installed by the undertaker under this article;

article 35 5 c + (c)remove any new road surface or other improvements carried out under this article to any street specified in Schedule 3 (streets subject to street works);

article 35 5 d + (d)restore the land on which any permanent works have been constructed under paragraph (1)(e), (1)(f) or (1)(g);

article 35 5 e + (e)remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development;

article 35 5 f + (f)remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development;

article 35 5 g + (g)remove or reposition any apparatus belonging to statutory undertakers or necessary mitigation works; or

article 35 5 h + (h)restore the land on which any works have been carried out under paragraph (1)(h) insofar as the works relate to mitigation works identified in the environmental statement or required pursuant to the requirements in Part 1 of Schedule 2.

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

(8) Subject to article 39 (no double recovery) nothing in this article affects any liability to pay compensation under section 152(3) (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 project, other than loss or damage for which compensation is payable under paragraph (6).

(9) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not to be precluded from—

article 35 9 a + (a)carrying out protective works under article 20 (protective works to buildings and structures); or

article 35 9 b + (b)carrying out a survey of that land under article 21 (authority to survey and investigate the land).

(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(4) (refusal to give possession to acquiring authority) of the 1965 Act shall apply to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125(5) (application of compulsory acquisition provisions) of the 2008 Act.