PART 5POWERS OF ACQUISITION 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, but subject to article 27 (time limit for exercise of authority to acquire land compulsorily)—

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

article 35 1 a i + (i)the land specified in column (1) of Schedule 11 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule relating to the part of the authorised development specified in column (3) of that Schedule; and

article 35 1 a ii + (ii)subject to paragraph (11), 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 (other than a notice of entry or a declaration in connection with the acquisition of rights and/or the imposition of restrictive covenants only);

article 35 1 b + (b)remove any apparatus, buildings, landscaping and vegetation from that land;

article 35 1 c + (c)construct temporary works (including the provision of means of access) and buildings on that land; and

article 35 1 d + (d)construct any works on that land as are mentioned in Schedule 1 (authorised development).

(2) Not less than 28 days (or such period less than 28 days as may be requested by the undertaker and which is then approved by the owner of the land) 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 and that notice must state the works, facilities or other purpose for which the undertaker intends to take possession of the land.

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

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

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

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

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such period of notice as is reasonably practical in the circumstances.

(4) The undertaker may not, without the agreement of the owners 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 completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 11, or

article 35 4 b + (b)in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by 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 in relation to that land.

(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; but the undertaker is not required to—

article 35 5 a + (a)replace a building removed under this article;

article 35 5 b + (b)restore the land on which any permanent works have been constructed under paragraph (1)(d);

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

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

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

article 35 5 f + (f)restore the land on which any soil reprofiling work has occurred; or

article 35 5 g + (g)remove any temporary works which have planning permission (where required) in place and where their retention has been agreed with 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 as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (5) does not prevent the undertaker giving up possession of the land.

(9) Subject to article 67 (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 development, other than loss or damage for which compensation is payable under paragraph (6).

(10) 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 10 a + (a)acquiring rights or imposing restrictions over any part of that land under article 28(2) (compulsory acquisition of rights and imposition of restrictive covenants) to the extent that such land is listed in column (1) of Schedule 8 (land of which only new rights etc. may be acquired);

article 35 10 b + (b)acquiring any part of the subsoil of or airspace over (or rights in the subsoil of or airspace over) that land under article 33(2) (acquisition of subsoil or airspace only) to the extent that such land is listed in column (1) of Schedule 10 (land in which only subsoil or new rights in and above subsoil and surface may be acquired); or

article 35 10 c + (c)extinguishing rights or restrictive covenants over any land subject to temporary possession in respect of removed or decommissioned apparatus under article 37(3) (statutory undertakers).

(11) The undertaker may not take temporary possession under paragraph (1)(a)(ii) of the surface of the land comprised in plots 14-04, 14-05, 14-06, 14-07, 14-08, 14-09, 14-10, 14-12, 14-13, 14-14, 14-15, 15-10, 15-11, 15-12, 15-13, 15-14, 15-15, 15-16, 15-20, 16-42 and 16-43 listed in Schedule 10.

(12) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(13) The undertaker may not take temporary possession of plots 15-09, 15-16, 15-17 and 15-21, land relating to the Milton Compound, until an agreement is made with the Mayor’s Office for Policing and Crime and the RSPB regarding the safe operation of the Metropolitan Police firing range.

(14) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in paragraph (1).

(15) Section 13(4) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use 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(5) (application of compulsory acquisition provisions) of the 2008 Act.