PART 5POWERS OF ACQUISITION AND POSSESSION OF LAND

Special category land

40.—(1) On the exercise by the undertaker of the relevant Order powers, subject to paragraph (5) the specified special category land and any rights over that land is not to vest in the undertaker (or any specified person) until—

(a)the replacement land has been acquired in the undertaker’s name or is otherwise in the name of the persons who owned the specified special category land on the date those powers are exercised;

(b)the Secretary of State has certified (following consultation by the undertaker with the relevant planning authority) has approved a scheme for the provision of the replacement land including a timetable for the implementation of the scheme has been received from the undertaker; and

(c)the relevant planning authority has certified that the scheme has been implement to its satisfaction.

(2) On the requirements of paragraph (1) being satisfied—

(a)the specified special category land is to vest in the undertaker (or any specified person) and be discharged from all rights, trusts and incidents to which it was previously subject; and

(b)the rights to be acquired over the specified special category land are to vest in the undertaker (or any specified person) and the specified special category land is to be discharged from all rights, trusts and incidents to which it was previously subject but only in so far as their continuance would be inconsistent with the exercising by the undertaker of the Order rights.

(3) The undertaker must implement the scheme certified by the Secretary of State under paragraph (1) and on the date on which the replacement land is laid out and provided in accordance with that scheme, the replacement land is to vest in the person(s) in whom the specified special category land was vested on the date of the exercise of the Order powers (if that replacement land is not already owned by those persons) and is to be subject to the same rights, trusts and incidents as attached to the specified special category land.

(4) As soon as reasonably practicable after paragraph (3) takes effect in relation to the Orsett Fen common land and the Tilbury Green common land respectively, the undertaker must apply under section 14(1) (statutory dispositions) of the Commons Act 2006 and paragraph 8 of Schedule 4 (applications pursuant to section 14: statutory dispositions) to the Commons Registration (England) Regulations 2014(2) to amend the relevant register of common land accordingly.

(5) Paragraphs (1) and (2) do not have effect in relation to the Tilbury Green common land, or the Orsett Fen common land respectively if at the time of the exercise of the relevant Order powers over that land, that land has been de-registered as common land.

(6) A scheme certified under sub-paragraph (1)—

(a)must comply with the outline LEMP; and

(b)may be certified in relation to part of the specified special category land, and paragraphs (1) and (2) are to have effect accordingly, so long as the certified scheme provides for the replacement land required in respect of the relevant Order land.

(7) On the exercise by the undertaker of the relevant Order powers, so much of the excepted land as is required for the purposes of the exercise of those powers is discharged from all rights, trusts and incidents to which it was previously subject, so far as their continuance would be inconsistent with the exercise of those powers.

(8) In this article—

“the excepted land” means the land identified as—

“the Orsett Fen common land” means the land identified as plots 35-13, 35-14, 35-60, 37-01, 38-55 and 38-58 in the book of reference and the special category land plans;

“the relevant Order powers” means the powers exercisable over the special category land by the undertaker under article 25 (compulsory acquisition of land) or article 28 (compulsory acquisition of rights and imposition of restrictive covenants);

“the specified special category land” means the land, or any part of that land, identified as plots 03-14, 04-88, 04-144, 04-250, 04-264, 04-265, 04-274, 13-03, 20-63, 23-106, 29-02, 29-09, 29-282, 29-283, 33-18, 33-35, 35-14, 35-60, 37-01, 38-58, 43-07, 43-08, 43-09, 43-22, 43-23, 43-24, 43-25, 43-31, 43-33, 43-39, 43-106, 43-109, 43-110, 44-12, 44-51, 46-06, 46-08, 46-09, 46-11, 46-12, 46-13, 46-18 and 46-55 in the book of reference and the special category land plans, being the land in respect of which the Secretary of State is satisfied that section 131(4) or section 132(4) of the 2008 Act applies;

“the replacement land” means the land identified as plots 03-43, 03-54, 03-85, 11-79, 13-94, 20-70, 20-78, 20-79, 23-117, 29-01, 29-12, 29-16, 29-18, 29-19, 33-04, 33-13, 34-14, 34-16, 34-18, 35-52, 35-57, 37-04, 38-62, 42-19, 42-26, 42-33, 43-04, 44-19, 46-19, 47-29, 47-32 and 47-33 in the book of reference and on the special category land plans, being the replacement for the special category land;

“right, trusts, and incidents” means all such provisions attaching to the land, and in respect of the Tilbury Green common land, the Walton Common and Parsonage Common, and the Orsett Fen common land includes all such provisions attaching to that land contained in or having effect under the 1825 Act, the Commons Regulation (West Tilbury) Provisional Order Confirmation Act 1893(3), section 193 of the Law of Property Act 1925(4), and the Commons Act 2006;

“specified person” means a person other than the undertaker for whose benefit the replacement land or rights are being acquired and includes the owner of special category land on the date of the exercise of the relevant powers or a statutory undertaker;

“the Tilbury Green common land” means the land identified as plots 20-63, 20-75, 20-76, 23-106 and 23-120 in the book of reference and the special category land plans; and

“the Walton Common and Parsonage Common” means the land identified as plots 21-25 and 23-170 in the book of reference and the special category land.