PART 4SUPPLEMENTAL POWERS

Protective work to land and buildings

article 20 + 20.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any land and any building on that land which may be affected by the authorised development as 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 land 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 land at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage, and place on, leave on and remove from the land and building any apparatus and equipment for use in connection with the survey.

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

article 20 4 a + (a)enter the land and any building on that land; and

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

and if it is reasonably required, the undertaker may take possession, or exclusive possession, of the building and any land or part thereof for the purpose of carrying out the protective works.

(5) Before exercising—

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

article 20 5 b + (b)a right under paragraph (3) to enter any land or building on that land;

article 20 5 c + (c)a right under paragraph (4)(a) to enter land or any building on that land ; or

article 20 5 d + (d)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 land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 64 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building 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) Where—

article 20 8 a + (a)protective works are carried out under this article to land or a building; and

article 20 8 b + (b)within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Where the undertaker exercises the power under paragraph (1) in relation to a building listed under section 1 of the Planning (Listed Buildings and Conservation Areas)(1) Act 1990, the undertaker must, except in an emergency—

article 20 9 a + (a)serve the notice served on owners and occupiers of a building or land under paragraph (5) on the local planning authority and Historic England; and

article 20 9 b + (b)have due regard to any response received from the local planning authority or Historic England within the period specified in the notice under paragraph (5).

(10) Subject to article 67 (no double recovery), nothing in this article relieves the undertaker from any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance)(2) of the 2008 Act.

(11) Any compensation payable under paragraph (7) or (8) is 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.

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

term protective works + (13) In this article “protective works” means—

article 20 13 a + (a)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to land and any building on that land by the carrying out, maintenance or use of the authorised development;

article 20 13 b + (b)any works the purpose of which is to remedy any damage which has been caused to the land or any building on that land by the carrying out, maintenance or use of the authorised development; and

article 20 13 c + (c)any works the purpose of which is to secure the safe operation of the authorised development or to prevent or minimise the risk to such operation being disrupted.