PART 5POWERS OF ACQUISITION AND POSSESSION OF LAND

Statutory undertakers

article 37 + 37.—(1) Subject to the provisions of Schedule 14 (protective provisions), article 28 (compulsory acquisition of rights and imposition of restrictive covenants), article 33 (acquisition of subsoil or airspace only), article 35(10) (temporary use of land for carrying out the authorised development), and paragraph (2), the undertaker may—

article 37 1 a + (a)acquire compulsorily, or acquire existing or new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and

article 37 1 b + (b)extinguish the rights or the benefit of a restrictive covenant of, or remove or reposition apparatus belonging to, statutory undertakers over or within the Order land.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

article 37 2 a + (a)Part 3 (street works in England and Wales) of the 1991 Act; and

article 37 2 b + (b)article 38 (apparatus and rights of statutory undertakers in stopped up streets).

(3) Subject to paragraph (4), where the power in paragraph (1)(b) is exercised in relation to any Order land in respect of which the undertaker takes temporary possession under article 35 (temporary use of land for carrying out the authorised development), the undertaker may only extinguish rights or restrictive covenants in respect of apparatus belonging to statutory undertakers removed or decommissioned where—

article 37 3 a + (a)the undertaker, in agreement with the statutory undertaker, gives a notice to the landowner of the rights or restrictive covenants proposed to be extinguished; and

article 37 3 b + (b)that notice has been provided prior to giving up temporary possession under article 35.

(4) The extinguishment of a right or restrictive covenant under paragraph (3) does not—

article 37 4 a + (a)relieve the need for the undertaker to comply with, or otherwise affect the application of, article 35(5) of this Order; or

article 37 4 b + (b)give rise to any cause of action relating to the presence on or in the land of any foundations and the undertaker is not required to remove foundations when giving up temporary possession.

(5) Subject to paragraph (6) and (7), the undertaker must, unless otherwise agreed by the landowner and any relevant statutory undertaker, when all of the specified works listed in column (1) of the table below have been completed, by exercise of the power in paragraph (1)(b) or otherwise—

article 37 5 a + (a)extinguish or otherwise terminate any rights and restrictive covenants which have been created, acquired or imposed for the purpose of the corresponding work listed in the column (2) of the table below; and

article 37 5 b + (b)notwithstanding article 35(5), remove any apparatus which has been installed as part of the corresponding work listed in the column (2) of the table below.

(6) The obligation in paragraph (5) applies in respect of rights and restrictive covenants which have been created, acquired or imposed and to apparatus installed for or which belongs to a statutory undertaker when, subject to the provisions of Schedule 14 (protective provisions), appropriate facilities and rights in respect of any specified work in column (1) of the table above have been granted to the relevant statutory undertaker.

(7) The obligation on the undertaker to remove apparatus in relation to paragraph (5) does not apply if the statutory undertaker is required to remove the apparatus under Schedule 14 (Protective Provisions) or by virtue of an agreement with that statutory undertaker.

(8) Insofar as the power under paragraph (1) is used to acquire easements or other new rights or impose restrictive covenants in subsoil, it is subject to article 33(8) (acquisition of subsoil or airspace only).