PART 4SUPPLEMENTAL POWERS

Powers in relation to relevant navigations or watercourses

article 18 + 18.—(1) Subject to Schedule 14 (protective provisions) the undertaker may, for the purpose of or in connection with the carrying out and maintenance of the authorised development, regardless of any interference with any private rights—

article 18 1 a + (a)temporarily alter, interfere with, occupy and use the banks, bed, foreshores, waters and walls of a relevant navigation or watercourse;

article 18 1 b + (b)remove or relocate any moorings so far as may be reasonably necessary for the purposes of carrying out and of maintaining the authorised development;

article 18 1 c + (c)temporarily moor or anchor vessels and structures;

article 18 1 d + (d)construct, place, maintain and remove temporary works and structures within the banks, bed, foreshores, waters and walls of a relevant navigation or watercourse; and

article 18 1 e + (e)interfere with the navigation of the relevant navigation or watercourse,

in such manner and to such extent as is reasonably necessary in connection with the carrying out and maintenance of the authorised development.

(2) Except in the case of emergency, the undertaker must use reasonable endeavours to notify the owner of any mooring affected by the proposal to exercise the powers conferred by paragraph (1)(b) before the exercise of those powers.

(3) The undertaker must pay compensation to any person entitled to compensation who suffers any loss or damage from the exercise of the powers conferred by paragraph (1).

(4) Any dispute as to a person’s entitlement to compensation under paragraph (3), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

term relevant navigation + (5) In this article “relevant navigation” means the river Thames within the Order limits or which may be affected by the authorised development.

Discharge of water

article 19 + 19.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance or use of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker under paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers)(1) of the Water Industry Act 1991.

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The undertaker must not make any opening into any public sewer or drain except—

article 19 4 a + (a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

article 19 4 b + (b)where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker must not, in carrying out or maintaining works under this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) If a person who receives an application for consent under paragraph (3) or approval under paragraph (4)(a) fails to notify the undertaker of a decision within 28 days of receiving an application, that person will be deemed to have granted consent or given approval, as the case may be, provided the application includes the statement required under paragraph (8).

(8) Any application for consent under paragraph (3) or approval under paragraph (4)(a) must include a statement that the provisions of paragraph (7) apply to that application.

(9) Subject to article 53 (disapplication of legislative provisions, etc.), nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit)(2) of the Environmental Permitting (England and Wales) Regulations 2016.

(10) In this article—

article 19 10 a + (a)term main river + “main river” means watercourses shown as such on the statutory main river maps held by the Environment Agency and the Department for Environment Food and Rural Affairs;

article 19 10 b + (b)term public sewer or drain + “public sewer or drain” means a sewer or drain which belongs to Homes England, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a sewerage undertaker or an urban development corporation; and

article 19 10 c + (c)other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(3) have the same meaning as in that Act.

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)(4) 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)(5) 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)(6) 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)(7) 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.

Authority to survey and investigate the land

article 21 + 21.—(1) The undertaker may for the purposes of the construction, operation or maintenance of the authorised development enter on any land shown within the Order limits or which may be affected by the authorised development and—

article 21 1 a + (a)survey or investigate the land (including any watercourses, groundwater, static water bodies or vegetation on the land);

article 21 1 b + (b)without limitation on the scope of sub-paragraph (a), make any excavations, trial holes. boreholes, and other investigations in such positions on the land as the undertaker thinks fit to investigate the extent or the nature of the surface layer, subsoil, ground water, underground structures, foundations, and plant or apparatus and remove soil and water samples and discharge water from sampling operations on to the land;

article 21 1 c + (c)without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land, including making any excavations or trial holes on the land for such purposes; and

article 21 1 d + (d)place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes and boreholes.

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land and that notice must indicate the nature of the activity that the undertaker intends to carry out.

(3) Any person entering land under this article on behalf of the undertaker—

article 21 3 a + (a)must, if so required, before or after entering the land, produce written evidence of their authority to do so; and

article 21 3 b + (b)may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes or boreholes.

(4) No trial holes or boreholes are to be made under this article—

article 21 4 a + (a)in land located within a highway boundary without the consent of the relevant local highway authority; or

article 21 4 b + (b)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld or delayed.

(5) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such 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.

(6) If either a relevant local highway authority or street authority which receives an application for consent fails to notify the undertaker of its decision within 28 days of receiving the application for consent—

article 21 6 a + (a)under paragraph (4)(a) in the case of a relevant local highway authority; or

article 21 6 b + (b)under paragraph (4)(b) in the case of a street authority,

that authority will be deemed to have granted consent provided the application includes the statement required under paragraph (8).

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

(8) Any application for consent under paragraph (4) must include a statement that the provisions of paragraph (6) apply to that application.

Removal of human remains

term the specified land + article 22 + 22.—(1) In this article “the specified land” means the land within the Order limits.

(2) Before the undertaker carries out any development or works within the Order limits which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Subject to paragraph (14), before any such remains are removed from the specified land the undertaker must give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—

article 22 3 a + (a)publishing a notice once in each of two successive weeks in a newspaper circulating in the relevant area of the authorised project; and

article 22 3 b + (b)displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant local planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

article 22 6 a + (a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

article 22 6 b + (b)removed to, and cremated in, any crematorium,

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(8) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question is to be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(9) If—

article 22 9 a + (a)within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or

article 22 9 b + (b)such notice is given and no application is made under paragraph (8) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or

article 22 9 c + (c)within 56 days after any order is made by the county court under paragraph (8) any person, other than the undertaker, specified in the order fails to remove the remains; or

article 22 9 d + (d)it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (10) the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be reinterred in individual containers which must be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains in accordance with the terms of this article, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

article 22 11 a + (a)a certificate of re-interment or cremation is to be sent by the undertaker to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

article 22 11 b + (b)a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) is to be sent by the undertaker to the relevant local planning authority mentioned in paragraph (4).

(12) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(13) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(14) No notice is required under paragraph (3) before the removal of any human remains where the undertaker is satisfied—

article 22 14 a + (a)that the remains were interred more than 100 years ago; and

article 22 14 b + (b)that no relative or personal representative of the deceased is likely to object to the remains being removed in accordance with this article.

(15) In the case of remains in relation to which paragraph (14) applies, the undertaker—

article 22 15 a + (a)may remove the remains; and

article 22 15 b + (b)must apply for direction from the Secretary of State under paragraph (12) as to their subsequent treatment.

(16) Nothing in this article affects the application of paragraph 9 of Schedule 2 to this Order.

(17) Section 25 of the Burial Act 1857 (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State)(8) does not apply to a removal carried out in accordance with this article or in accordance with paragraph 9 of Schedule 2 to this Order.

(18) Section 239 (use and development of burial grounds) of the 1990 Act applies—

article 22 18 a + (a)in relation to land, other than a right over land, acquired for the purposes of the authorised development (whether or not by agreement), so as to permit use by the undertaker in accordance with the provisions of this Order; and

article 22 18 b + (b)in relation to a right over land so acquired (whether or not by agreement), or the temporary use of land pursuant to articles 35 (temporary use of land for carrying out the authorised development) or 36 (temporary use of land for maintaining the authorised development), so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order,

term any other enactment + term statutory undertaker + term regulations made for the purposes of sections 2383 and 4 and 2392 + and in section 240(1) (provisions supplemental to ss. 238 and 239) of the 1990 Act reference to “regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as applicable to land or a right over land acquired under this Order, paragraphs (2) to (15) of this article, and in section 240(3) of the 1990 Act reference to a “statutory undertaker” includes the undertaker and reference to “any other enactment” includes this Order.

(19) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950(9) do not apply to the authorised development.

(20) In this article—

article 22 20 a + (a)references to a relative of the deceased are to a person who is a—

article 22 20 a i + (i)husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased; or

article 22 20 a ii + (ii)child of a brother, sister, uncle or aunt of the deceased.

article 22 20 b + (b)references to a personal representative of the deceased are to a person or persons who is the lawful executor of the estate of the deceased or is the lawful administrator of the estate of the deceased.

Felling or lopping of trees and removal of hedgerows

article 23 + 23.—(1) The undertaker may fell or lop any tree or shrub, within or overhanging land within the Order limits, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

article 23 1 a + (a)from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

article 23 1 b + (b)from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within or overhanging land within the Order limits that is required to be removed.

term hedgerow + (5) In this article “hedgerow” includes a hedgerow to which the Hedgerow Regulations 1997(10) apply and includes important hedgerows.

Trees subject to tree preservation orders

article 24 + 24.—(1) Subject to paragraph (2), the undertaker may fell or lop any tree made subject to a tree preservation described in Schedule 7 (trees subject to tree preservation orders) or cut back its roots or undertake such other works described in column (2) of that Schedule relating to the relevant part of the authorised development described in column (3) of that Schedule or any tree within or overhanging land within the Order limits subject to a tree preservation order which was made after the date this Order is made.

(2) The undertaker may only exercise the powers referred to in paragraph (1) if it reasonably believes it to be necessary in order to prevent the tree or shrub—

article 24 2 a + (a)from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

article 24 2 b + (b)from constituting a danger to persons using the authorised development.

(3) In carrying out any activity authorised by paragraph (1)—

article 24 3 a + (a)the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity;

article 24 3 b + (b)the duty contained in section 206(1) (replacement of trees) of the 1990 Act will not apply although where possible the undertaker must seek to replace any trees which are removed; and

article 24 3 c + (c)the undertaker must consult (with sufficient particulars to identify the tree) the relevant planning authority prior to that activity taking place.

(4) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(5) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.