PART 5ACQUISITION AND POSSESSION OF LAND

Compulsory acquisition of land

26.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate, or is incidental to, it.

(2) This article is subject to article 27 (time limit for exercise of authority to acquire land compulsorily), paragraph (2) of article 28 (compulsory acquisition of rights and imposition of restrictive covenants), article 29 (acquisition of subsoil only), article 30 (acquisition of land limited to subsoil lying more than 7 metres beneath surface) and article 35 (temporary use of land for carrying out the authorised development).

(3) The power to compulsorily acquire land conferred under paragraph (1) does not apply to the Order land specified in paragraph (4).

(4) The land referred to in paragraph (3) is the land specified in columns (1) and (2) of the tables in sub paragraphs (a) and (b) below—

(a)

(b)

(5) The land specified in paragraph 4(a) is subject to the power conferred under article 31(3) (private rights).

(6) The land specified in paragraph 4(b) is subject to the power conferred under article 31(4).

Time limit for exercise of authority to acquire land compulsorily

27.—(1) After the end of the period of 5 years beginning with the day on which this Order is made—

(a)no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act; and

(b)no declaration is to be executed under section 4(1) (execution of declaration) of the 1981 Act as applied by article 33 (application and modification of the 1981 Act).

(2) The authority conferred by article 35 (temporary use of land for carrying out the authorised development) ceases either at the end of the period referred to in paragraph (1) or at the end of the period as stated in article 35(4), whichever is the longer, save that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

(3) The applicable period for the purposes of section 4(2) (time limit for giving notice to treat) of the 1965 Act and section 5A(3) (time limit for general vesting declaration) of the 1981 Act (as modified by this Order) is the period of five years beginning on the day on which the Order is made.

Compulsory acquisition of rights and imposition of restrictive covenants

28.—(1) Subject to the provisions of this article, the undertaker may acquire compulsorily such rights or impose such restrictive covenants over the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 26 (compulsory acquisition of land), by creating them as well as by acquiring rights and the benefit of restrictions already in existence.

(2) In the case of the Order land specified in column (1) of Schedule 10 (land in which only new rights etc may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such new rights and the imposition of such restrictive covenants for the purpose specified in relation to that land in column (2) of that Schedule.

(3) Subject to section 8(4) (other provisions as to divided land) of, and Schedule 2A(5) (counter-notice requiring purchase of land not in notice to treat) to, the 1965 Act (as substituted by paragraph 10 of Schedule 13 (modification of compensation and compulsory purchase enactments for creation of new rights and the imposition of restrictive covenants)), where the undertaker creates a new right or acquires an existing right over land or imposes a restrictive covenant under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

(4) Schedule 13 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

(5) In any case where the acquisition of new rights or imposition of a restriction under paragraph (1) or (2) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.

(6) The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (5) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.

Acquisition of subsoil only

29.—(1) The undertaker may acquire compulsorily so much of, or rights in, or impose restrictive covenants over, the subsoil of the land referred to in paragraph (1) of article 26 (compulsory acquisition of land) or article 28 (compulsory acquisition of rights and imposition of restrictive covenants) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, or imposes restrictive covenants over, the subsoil of land under 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 only—

(a)Schedule 2A(6) (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b)Schedule A1(7) (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c)Section 153(4A)(8) (reference of objection to Upper Tribunal: general) of the 1990 Act.

(4) Paragraphs (2) and (3) do not apply where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Acquisition of land limited to subsoil lying more than 7 metres beneath surface

30.—(1) This article applies to the land specified in columns (1) and (2) of Schedule 11 (land of which only subsoil more than 7 metres beneath the surface may be acquired together with new rights and/or restrictive covenants).

(2) In the case of land to which this article applies, the undertaker may only acquire compulsorily under article 26 (compulsory acquisition of land) so much of, or rights in, or impose restrictive covenants over, the subsoil of the land as may be required for the purposes of the authorised development except that the undertaker is not to be precluded from—

(a)carrying out protective works on that land under article 20 (protective works to buildings and structures);

(b)carrying out a survey of that land under article 21 (authority to survey and investigate the land); or

(c)entering on and taking temporary possession of land under article 35 (temporary use of land for carrying out the authorised development) or article 36 (temporary use of land for maintaining the authorised development).

(3) In addition to acquiring so much of, or such rights in, the subsoil of the land, the undertaker may acquire over any other part of the land specified in columns (1) and (2) of Schedule 11 such new rights and may impose such restrictive covenants as may be required for the purpose specified in relation to that land in column (3) of Schedule 11.

(4) Where the undertaker acquires any part of, or rights in, the subsoil of the land under paragraph (2) or acquires rights or imposes restrictive covenants under paragraph (3), the undertaker is not required to acquire a greater interest in the land or an interest in any other part of it.

(5) References in this article to the “subsoil of the land” are references to the subsoil lying more than 7 metres beneath the level of the surface of the land; and for this purpose “level of the surface of the land” means—

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

(b)in the case of a watercourse or other water area, the level of the surface of the ground nearest to it which is at all times above water level; or

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

(6) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil only—

(a)Schedule 2A(9) (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b)Schedule A1(10) (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c)Section 153(4A)(11) (reference of objection to Upper Tribunal: general) of the 1990 Act.

Private Rights

31.—(1) Subject to the provisions of this article, all private rights or restrictive covenants over land subject to compulsory acquisition under this Order are extinguished—

(a)as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b)on the date of entry on the land by the undertaker under section 11(1)(12) (power of entry) of the 1965 Act,

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights or restrictive covenants over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under article 28 (compulsory acquisition of rights and imposition of restrictive covenants) are extinguished in so far as their continuance would be inconsistent with the exercise of the right or compliance with the restrictive covenant—

(a)as from the date of the acquisition of the right or the imposition of the restrictive covenant by the undertaker (whether the right is acquired or the restrictive covenant is imposed compulsorily, by agreement or through the grant of lease of the land by agreement); or

(b)on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act in pursuance of the right,

whichever is the earlier.

(3) Subject to the provisions of this article, all private rights over any part of the Order land that is owned by, vested in or acquired by the undertaker, including the land specified in article 26(4)(a) (compulsory acquisition of land), are extinguished on commencement of any activity authorised by this Order which interferes with or breaches those rights.

(4) Subject to the provisions of this article, all private rights over the Order land specified in article 26(4)(b) are extinguished on commencement of any activity authorised by this Order which interferes with or breaches those rights.

(5) Subject to the provisions of this article, all private rights or restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(6) Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenants under this article is entitled to compensation 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).

(7) This article does not apply in relation to any right to which section 138(13) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc) of the 2008 Act or article 41 (statutory undertakers) applies.

(8) Paragraphs (1) to (4) have effect subject to—

(a)any notice given by the undertaker before—

(i)the completion of the acquisition of the land or the acquisition of rights or the imposition of restrictive covenants over or affecting the land;

(ii)the undertaker’s appropriation of the land;

(iii)the undertaker’s entry onto the land;

(iv)the commencement of any activity on land authorised by this Order which interferes with or breaches any private rights over land; or

(v)the undertaker’s taking temporary possession of the land,

that any or all of those paragraphs do not apply to any right specified in the notice; or

(b)any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(9) If an agreement referred to in paragraph (8)(b)—

(a)is made with a person in or to whom the right is vested or belongs; and

(b)is expressed to have effect also for the benefit of those deriving title from or under that person,

the agreement is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(10) Reference in this article to private rights over land includes reference to any right of way, right of navigation, trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Power to override easements and other rights

32.—(1) Any authorised activity which takes place within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) and the doing of anything else authorised by this Order is authorised for the purpose specified in section 158(2) (nuisance: statutory authority) of the 2008 Act, notwithstanding that it involves—

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

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

(2) In this article “authorised activity” means—

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

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

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

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

(4) Subject to article 39 (no double recovery), where any interest, right or restriction to which this article applies is overridden by paragraph (1), unless otherwise agreed, compensation—

(a)is payable under section 7 (measure of compensation in case of severance) or 10(14) (further provision as to compensation for injurious affection) of the 1965 Act; and

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

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

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

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

(a)is liable to pay compensation by virtue of paragraph (4); and

(b)fails to discharge that liability,

the liability is enforceable against the undertaker.

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

(7) Subsection (2) of section 10 of the 1965 Act applies to paragraph (4) by virtue of section 152(5) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(8) Any rule or principle applied to the construction of section 10 of the 1965 Act applies to the construction of paragraph (4) with any necessary modifications.

Application and modification of the 1981 Act

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

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

(3) In section 1 (application of Act), in subsection (1), omit the words “in themselves”.

(4) In section 1, for subsection (2), substitute—

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

(5) In section 4(15) (execution of declaration), for subsection (1) substitute—

“(1) The acquiring authority may execute in respect of any of the land which they are authorised to acquire by the compulsory purchase order a declaration in the prescribed form vesting the land in themselves, or in the case of land or a right that they are authorised to acquire for the benefit of a third party, in the third party in question, from the end of such period as may be specified in the declaration (not being less than 3 months from the date on which the service of notices required by section 6 is completed).”

(6) In section 5(2) (earliest date for execution of declaration) omit the words from “, and this subsection” to the end.

(7) In section 5B(16) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order)” substitute “section 118 of the 2008 Act (legal challenges relating to applications for orders granting development consent).

(8) In section 6(17) (notices after execution of declaration), in subsection (1)(b) for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(9) In section 7(18) (constructive notice to treat), in subsection (1)(a), omit the words “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(10) In section 8(19) (vesting and right to enter and take possession), after subsection (3), insert—

“(4) In this section references to the acquiring authority include any third party referred to in section 4(1).”

(11) In section 10(20) (acquiring authority’s liability arising on vesting of the land), in subsection (1), after “vested in an acquiring authority” insert “or a third party”.

(12) In section 11(21) (recovery of compensation overpaid), for subsection (1) substitute—

“(1) This section applies where after the execution of a general vesting declaration a person (“the claimant”) claims compensation in respect of the acquisition of an interest in land by virtue of the declaration, and the acquiring authority pay compensation in respect of that interest”.

(13) In Schedule A1(22) (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—

“(2) But see article 29 (acquisition of subsoil only) and article 30 (acquisition of land limited to subsoil lying more than 7 metres beneath surface) of the Cambridge Waste Water Treatment Plant Relocation Order 2025, which excludes the acquisition of subsoil only from this Schedule”.

(14) References to the 1965 Act in the 1981 Act must be construed as references to the 1965 Act as applied by section 125(23) (application of compulsory acquisition provisions) of the 2008 Act and as modified by article 34 (modification of Part 1 of the 1965 Act) to the compulsory acquisition of land under this Order.

Modification of Part 1 of the 1965 Act

34.—(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied to this Order by section 125(24) (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows—

(2) In section 4A(1)(25) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order)” substitute “section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent)”.

(3) In section 11A(26) (powers of entry: further notice of entry)—

(a)in subsection (1)(a), after “land” insert “under that provision”; and

(b)in subsection (2), after “land” insert “under that provision”.

(4) In Schedule 2A(27) (counter-notice requiring purchase of land not in notice to treat) after paragraph 29, insert—

(a)for paragraphs 1(2) and 14(2) substitute—

“(2) But see article 29(3) (acquisition of subsoil only) and article 30(6) (acquisition of land limited to subsoil lying more than 7 metres beneath surface) of the Cambridge Waste Water Treatment Plant Relocation Order 2025, which exclude the acquisition of subsoil only from this Schedule”; and

(b)at the end insert—

“PART 4INTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include doing so under article 35 (temporary use of land for carrying out the authorised development) or 36 (temporary use of land for maintaining the authorised development) of the Cambridge Waste Water Treatment Plant Relocation Order 2025”.

Temporary use of land for carrying out the authorised development

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

(a)enter on and take temporary possession of—

(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

(ii)any other Order land in respect of which no notice of entry has been served under section 11(28) (powers of entry) of the 1965 Act and no declaration has been made under section 4(29) (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);

(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;

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

(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;

(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;

(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;

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

(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—

(a)the authorised development or any of its parts;

(b)the public; or

(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—

(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

(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—

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

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

(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);

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

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

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

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

(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(30) (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—

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

(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(31) (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(32) (application of compulsory acquisition provisions) of the 2008 Act.

Temporary use of land for maintaining the authorised development

36.—(1) Subject to paragraph (2) the undertaker may—

(a)enter on and take temporary possession of any land within the Order land if such possession is reasonably required for the purpose of maintaining the authorised development;

(b)enter on any land within the Order land 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 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 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 reasonable satisfaction of the owners of the land.

(6) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of 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) Nothing in this article affects any liability to pay compensation under section 152(33) (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 maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (6).

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

(a)the authorised development or any of its parts;

(b)the public; or

(c)the surrounding environment.

(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(34) (refusal to give possession to acquiring authority) of the 1965 Act applies 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(35) (application of compulsory acquisition provisions) of the 2008 Act.

Disregard of certain interests and improvements

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

(a)any interest in land; or

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

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

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

Set-off for enhancement in value of retained land

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

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil), under article 28 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal is to set off against the value of the rights or restrictive covenants so acquired—

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

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

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

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

No double recovery

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

Compulsory acquisition of land – incorporation of the mineral code

40.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(36) are incorporated in this Order subject to the following modifications—

(a)for “the acquiring authority” substitute “the undertaker”;

(b)for the “undertaking” substitute “authorised development”; and

(c)for “compulsory purchase order” substitute “this Order”.

Statutory undertakers

41.  Subject to the provisions of Schedule 15 (protective provisions) and article 28 (compulsory acquisition of rights and imposition of restrictive covenants) the undertaker may—

(a)acquire compulsorily, or acquire new rights or impose restrictive covenants over, the land belonging to statutory undertakers shown on the land plans within the Order land; and

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

Recovery of costs of new connections

42.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 41 (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 41, 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 Part 3 (street works in England and Wales) of the 1991 Act applies.

(4) In this article—

“public communications provider” has the same meaning as in section 151(1) (interpretation of chapter 1) of the Communications Act 2003(37); and

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

Rights under or over streets

43.—(1) The undertaker may enter onto and use so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or air-space for those purposes.

(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, tunnel or underground building; or

(b)any cellar, vault, arch, projection, 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 which is entered onto and used under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

(6) The undertaker must as soon as reasonably practicable and in any case no later than 14 days before entering the subsoil or airspace, serve notice of the use under this article, on the owner and or occupier of the subsoil or airspace proposed to be used, and such notice must be accompanied by plans showing in sufficient detail the subsoil and airspace to be used under this article and upon written request the undertaker will supply a copy of such notice and plans to the local authority and (if different) the local highway authority.

(7) If at any time following the use pursuant to paragraph (1) the subsoil or airspace is no longer required to be used under this article for the purposes of the authorised development—

(a)the undertaker will serve notice on the owner that the subsoil or airspace is no longer required;

(b)upon service of notice to the owner the right of the undertaker to use the subsoil or airspace given by paragraphs (1) and (2) will cease; and

(c)the undertaker (or if different the owner for the time being of the part of the authorised development occupying the subsoil or airspace) will within a reasonable time following the written request of the owner to do so, remove its equipment from the subsoil or airspace and restore the subsoil or airspace to the reasonable satisfaction of the owner and deliver up vacant possession of it.