PART 4SUPPLEMENTAL POWERS

Discharge of water

article 19 + 19.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised development and for those purposes may inspect, lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) is to be determined as if it were a dispute under section 106(1) (right to communicate with public sewers) of the Water Industry Act 1991.

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The undertaker must not carry out any works to any public sewer or drain pursuant to paragraph (1) except—

article 19 4 a + (a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

article 19 4 b + (b)where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker must not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by regulation 12 (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(2).

(8) In this article—

article 19 8 a + (a)term public sewer or drain + “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority or a sewerage undertaker; and

article 19 8 b + (b)other expressions excluding watercourse, which are used both in this article and in the Environmental Permitting (England and Wales) Regulations 2016 have the same meaning as in those Regulations.

(9) If a person who has received an application for consent under paragraph (3) or approval under paragraph (4)(a) fails to notify the undertaker of its decision within 28 days of receiving the application, that person is deemed to have granted consent or given approval as the case may be, provided that the application for consent notifies the person that the provisions of paragraph (9) apply to that application.

Protective works to buildings and structures

article 20 + 20.—(1) Subject to the provisions of this article, the undertaker may at its own expense carry out such protective works to any building or structure which may be affected by the authorised development which the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

article 20 2 a + (a)at any time before or during the carrying out in the vicinity of the building or structure of any part of the authorised development; or

article 20 2 b + (b)after the completion of that part of the authorised development in the vicinity of the building or structure at any time up to the end of the period of five years beginning with the day on which that part of the authorised development first becomes operational.

(3) For the purpose of determining how the powers under this article are to be exercised, the undertaker may (subject to paragraph (5) and (6)) enter and survey—

article 20 3 a + (a)any building or structure to which the power applies and any land within its curtilage; and

article 20 3 b + (b)where reasonably necessary, any land which is adjacent to the building or structure.

(4) For the purpose of carrying out the protective works under this article to a building or structure the undertaker may (subject to paragraphs (5) and (6))—

article 20 4 a + (a)enter the building and any land within its curtilage; and

article 20 4 b + (b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building or structure but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

article 20 5 a + (a)a right under paragraph (1) to carry out protective works to a building or structure;

article 20 5 b + (b)a right under paragraph (3)(a) to enter a building and land within the Order limits;

article 20 5 c + (c)a right under paragraph 3(b) to enter land;

article 20 5 d + (d)a right under paragraph (4)(a) to enter a building and land within the Order limits; or

article 20 5 e + (e)a right under paragraph (4)(b) to enter land,

the undertaker must except in the case of emergency serve on the owners and occupiers of the building or structure or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a), (d) or (e), specifying the planned protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (d) or (e), the owner and or occupier of the building or land concerned may, by serving a counter-notice within the period of 14 days beginning with the day on which the notice was served, require the question as to whether the protective works proposed by the undertaker are necessary or expedient to be referred to arbitration under article 52 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building, structure or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.

(8) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152(3) (compensation in cases where no right to claim as nuisance) of the 2008 Act.

(9) Any compensation payable under paragraph (7) is to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(10) Section 13(3) (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession 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(4) (application of compulsory acquisition provisions) of the 2008 Act.

term protective works + (11) In this article “protective works” in relation to a building or structure means those works the purpose of which is to prevent damage which may be caused to the building or structure which may include monitoring, underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate the land

article 21 + 21.—(1) The undertaker may for the purposes of this Order enter on any land within the Order limits or which may be affected by the authorised development or land on which surveys and investigations are required for the monitoring of the authorised development and—

article 21 1 a + (a)survey, monitor or investigate the land;

article 21 1 b + (b)without limitation to the scope of sub-paragraph (a), survey, monitor and or investigate the land and any buildings or structures on that land for the purpose of investigating the potential effects of the authorised development on that land or buildings or structures on that land or for enabling the construction, operation, use and maintenance of the authorised development;

article 21 1 c + (c)without limitation to the scope of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and or subsoil and or to remove soil samples;

article 21 1 d + (d)without limitation to the scope of sub-paragraph (a), carry out ecological and or archaeological investigations or monitoring on such land; and

article 21 1 e + (e)place on, leave on and remove from the land apparatus for use in connection with the survey, monitoring and or investigation of land, the making of trial holes, and or the carrying out of ecological and or archaeological investigations.

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of the undertaker—

article 21 3 a + (a)must, if so required on entering the land, produce written evidence of their authority to do so; and

article 21 3 b + (b)may take with them such vehicles and equipment as are necessary to carry out the survey, investigation, monitoring, or to make the trial holes.

(4) No trial holes are to be made under this article—

article 21 4 a + (a)in land located within a highway boundary without the consent of the relevant highway authority;

article 21 4 b + (b)in land forming a railway without the consent of Network Rail;

article 21 4 c + (c)in land held by or in right of the Crown without the consent of the Crown; or

article 21 4 d + (d)in a private street without the consent of the relevant street authority,

but such consent must not be unreasonably withheld or delayed.

(5) If either a highway authority or a street authority which receives an application for consent fails to notify the undertaker of its decision within 28 days of receiving the application for consent under paragraph (4) that authority is deemed to have granted consent.

(6) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such 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.

(7) Section 13(5) (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession 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(6) (application of compulsory acquisition provisions) of the 2008 Act.

Removal of human remains

article 22 + 22.—(1) Before the undertaker carries out any development or works which will or may disturb any human remains within the Order limits it must remove those human remains or cause them to be removed, in accordance with the provisions of this article.

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

article 22 2 a + (a)publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised development; and

article 22 2 b + (b)displaying a notice in a conspicuous place on or near the Order limits.

(3) As soon as reasonably practicable after the first publication of a notice under paragraph (2) the undertaker must send a copy of the notice to the relevant planning authority.

(4) At any time within 56 days after the first publication of a notice under paragraph (2) any person who is a personal representative or relative of any deceased person whose remains are interred within the Order limits may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(5) Where a person has given notice under paragraph (4), and the remains in question can be identified, that person may cause such remains to be—

article 22 5 a + (a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

article 22 5 b + (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 (10).

(6) If the undertaker is not satisfied that any person giving notice under paragraph (4) 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 a 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.

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

(8) If—

article 22 8 a + (a)within the period of 56 days referred to in paragraph (4) no notice under that paragraph has been given to the undertaker in respect of any remains in the Order limits;

article 22 8 b + (b)such notice is given and no application is made under paragraph (6) 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;

article 22 8 c + (c)within 56 days after any order is made by a county court under paragraph (6) any person, other than the undertaker, specified in the order fails to remove the remains; or

article 22 8 d + (d)it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (9) 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.

(9) If the undertaker is satisfied that any person giving notice under paragraph (4) 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.

(10) On the re-interment or cremation of any remains under powers conferred by this article—

article 22 10 a + (a)a certificate of re-interment or cremation must be sent by the undertaker to the Registrar General 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

article 22 10 b + (b)a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (8) must be sent by the undertaker to the relevant planning authority mentioned in paragraph (3).

(11) 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 for Justice.

(12) No notice is required under paragraph (2) before the removal of any human remains where the undertaker is satisfied—

article 22 12 a + (a)that the remains were interred more than 100 years ago; and

article 22 12 b + (b)that no relative or personal representatives of the deceased is likely to object to the remains being removed in accordance with this article.

(13) In this article references to a relative of the deceased are to a person who—

article 22 13 a + (a)is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased;

article 22 13 b + (b)is, or is a child of, a brother, sister, uncle or aunt of the deceased;

article 22 13 c + (c)is the lawful executor of the estate of the deceased; or

article 22 13 d + (d)is the lawful administrator of the estate of the deceased.

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

Felling or lopping of trees and removal of hedgerows

article 23 + 23.—(1) Save in respect of trees or shrubs which come within article 24 (trees subject to tree preservation orders), or article 25 (trees in conservation areas) the undertaker may fell or lop any tree or shrub near any part of the authorised development, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, operation, use or maintenance of the authorised development or any apparatus used in connection with the authorised development.

(2) In carrying out any activity authorised by paragraph (1), 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.

(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 under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(4) The undertaker may, for the purposes of the authorised development but subject to paragraph (2) above—

article 23 4 a + (a)remove those parts of the hedgerows as were within the Order limits and specified in Part 1 of Schedule 16 (removal of hedgerows); and

article 23 4 b + (b)remove those parts of the important hedgerows within the Order limits and specified in Part 2 of Schedule 16 (removal of important hedgerows).

term important hedgerow + term hedgerow + (5) In this article “hedgerow” and “important hedgerow” have the same meaning as in the Hedgerows Regulations 1997.

Trees subject to tree preservation orders

article 24 + 24.—(1) The undertaker may fell or lop or cut back the roots of any tree or shrub within or overhanging land within the Order limits which is subject to a tree preservation order if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, operation, use or maintenance of the authorised development or any apparatus used in connection with the authorised development.

(2) In carrying out any activity authorised by paragraph (1)—

article 24 2 a + (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; and

article 24 2 b + (b)the duty contained in section 206(1)(7) (replacement of trees) of the 1990 Act is not to apply.

(3) The authority given by 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 under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Trees in conservation areas

article 25 + 25.—(1) The undertaker may fell or lop any tree or shrub which is situated within a conservation area (designated under section 69 (designation of conservation areas) of the Planning (Listed Buildings and Conservation Areas) Act 1990)(8), including those identified on the hedgerow regulations and tree preservation plans, or cut back its roots if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, operation, use or maintenance of the authorised development or any apparatus used in connection with the authorised development.

(2) In carrying out any activity authorised by paragraph (1)—

article 25 2 a + (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; and

article 25 2 b + (b)the duty contained in section 206(1)(9) (replacement of trees) of the 1990 Act is not to apply.

(3) The authority given by paragraph (1) constitutes an authorisation by an order granting development consent for the purposes of section 211(1A)(10) (preservation of trees in conservation areas) of the 1990 Act.

(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 under Part 1 (determination of questions of disputed compensation) of the 1961 Act.