PART 5POWERS OF ACQUISITION AND POSSESSION OF LAND

Compulsory acquisition of land

25.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or is incidental to it, or is required as replacement land (as defined in article 40 (special category land)).

(2) This article is subject to articles 27 (time limit for exercise of authority to acquire land compulsorily), 28(2) (compulsory acquisition of rights and imposition of restrictive covenants) and 35(11) (temporary use of land for carrying out the authorised development).

Compulsory acquisition of land – incorporation of the mineral code

26.  Parts 2 and 3 of Schedule 2 (minerals)(1) to the Acquisition of Land Act 1981 are incorporated in this Order subject to the modifications that—

(a)paragraph 8(3) is not incorporated;

(b)for the “acquiring authority” substitute “the undertaker”;

(c)for “undertaking” substitute “authorised development”; and

(d)for “compulsory purchase order” substitute “this order”.

Time limit for exercise of authority to acquire land compulsorily

27.—(1) After the end of the period of 8 years beginning with the day on which this Order is made—

(a)no notice to treat is to be served under Part 1 of the 1965 Act as modified by this Order; and

(b)no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 31 (application of the 1981 Act),

in relation to the Order land for the purposes of this Order.

(2) The authority conferred by article 35 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights and imposition of restrictive covenants

28.—(1) Subject to paragraphs (2) to (5), the undertaker may acquire such rights over the Order land, or impose restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 25 (compulsory acquisition of land) by creating them as well as acquiring rights already in existence.

(2) In the case of the Order land specified in column (1) of Schedule 8 (land of which only new rights, etc. may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of restrictive covenants, as may be required for or in connection with the authorised development for the purposes specified in relation to that land in column (2) of that Schedule.

(3) The powers of paragraph (1) may be exercised by a statutory undertaker instead of by the undertaker in any case where the undertaker has given its prior consent to that in writing, and that consent may be given subject to terms and conditions.

(4) Where in consequence of paragraph (3), a statutory undertaker exercises the powers in paragraph (1) in place of the undertaker, except in relation to the payment of compensation the liability for which must remain with the undertaker, that person is to be treated for the purposes of this Order and by any person as being the undertaker in relation to the acquisition of the rights and the imposition of the restrictive covenants in question.

(5) The power conferred by paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 8 for the benefit of statutory undertakers or for the benefit of any other person—

(a)does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 8 as may be required for the benefit of any other statutory undertaker or any other person; and

(b)must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 8 as are required for the benefit of any other statutory undertaker or any other person.

(6) Subject to Schedule 2A (counter-notice requiring purchase of land not in notice to treat)(2) to the 1965 Act, as modified by paragraph 5(8) of Schedule 9 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants), where the undertaker acquires a right over land or the benefit of a restrictive covenant, the undertaker is not required to acquire a greater interest in that land.

(7) Schedule 9 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Private rights over land

29.—(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished—

(a)from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b)on the date of entry on the land by the undertaker under section 11(1) (power of entry)(3) of the 1965 Act,

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or the burden of the restrictive covenant—

(a)as from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement;

(b)on the date of entry onto the land by the undertaker under section 11(1) of the 1965 Act; or

(c)on carrying out any activity authorised by the Order which interferes with or breaches those rights,

whichever is the earlier.

(3) Subject to the provisions of this article, all private rights over land owned by the undertaker that are within the Order limits are extinguished on carrying out any activity authorised by this Order which interferes with or breaches those rights.

(4) Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(5) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with the terms of section 152 (compensation in case where no right to claim in nuisance)(4) of the 2008 Act to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(6) This article does not apply in relation to any right to which section 138 (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.)(5) of the 2008 Act or article 37 (statutory undertakers) applies.

(7) Paragraphs (1) to (4) have effect subject to—

(a)any notice given by the undertaker before—

(i)the completion of the acquisition of the land or the acquisition of the rights or the imposition of the restrictive covenants over or affecting the land;

(ii)the undertaker’s appropriation of it;

(iii)the undertaker’s entry onto it; or

(iv)the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right specified in the notice; and

(b)any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(8) If any such agreement as is referred to in paragraph (7)(b)—

(a)is made with a person in or to whom the right is vested or belongs; and

(b)is expressed to have effect also for the benefit of those deriving title from or under that person,

it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(9) References in this article to private rights over land include any right of way, trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Modification of Part 1 of the 1965 Act

30.—(1) Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied to this Order by section 125 (application of compulsory acquisition provisions)(6) of the 2008 Act is modified as follows.

(2) In section 4A(1) (extension of time limit during challenge)(7) for “section 23 of the Acquisition of Land Act 1981 (application to the High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the eight year period mentioned in article 27 (time limit for exercise of authority to acquire land compulsorily) of the A122 (Lower Thames Crossing) Development Consent Order 2025”.

(3) In section 11A (powers of entry: further notice of entry)(8)—

(a)in subsection (1)(a), after “land” insert “under that provision”;

(b)in subsection (2), after “land” insert “under that provision”.

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 27 (time limit for exercise of authority to acquire land compulsorily) of the A122 (Lower Thames Crossing) Development Consent Order 2025”.

(5) In Schedule 2A (counter-notice requiring purchase of land not in notice to treat)(9)—

(a)for paragraphs 1(2) and 14(2) substitute—

“(2) But see article 33(4) (acquisition of subsoil or airspace only) of the A122 (Lower Thames Crossing) Development Consent Order 2025, which excludes the acquisition of subsoil or airspace only from this Schedule.”; and

(b)after paragraph 29, insert—

“PART 4INTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include exercising the powers under articles 13 (use of private roads), 20 (protective work to land and buildings), 21 (authority to survey and investigate the land), 35 (temporary use of land for carrying out the authorised development) or 36 (temporary use of land for maintaining the authorised development) of the A122 (Lower Thames Crossing) Development Consent Order 2025.”

(6) In respect of Plots 28/08, 29/253, 29/254, 29/258, 29/259, 29/260 and 29/261 shown in the land plans, and without limitation to the powers under article 35 (temporary use of land for carrying out the authorised development), section 8 (other provisions as to divided land) of, and Schedule 2A to, the 1965 Act, must be construed to ensure—

(a)the freehold owner of those plots may serve a notice to require the undertaker to acquire the landowner’s interest in respect of the Whitecroft Care Home where any part of the authorised development has begun; and

(b)the undertaker must accept a notice served under sub-paragraph (a) and thereafter serve—

(i)notice of entry under section 11 (powers of entry) of the 1965 Act; or

(ii)a declaration under section 4 (execution of declaration) of the 1981 Act,

in respect of land and interests in those plots and the Whitecroft Care Home owned by the landowner as though it were an acceptance for the purposes of paragraph 11 of Schedule 2A to the 1965 Act.

Application of the 1981 Act

31.—(1) The 1981 Act applies as if this Order were a compulsory purchase order.

(2) The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

(3) In section 1 (applic ation of Act)—

(a)in subsection (1), omit the words “in themselves”; and

(b)for subsection (2) substitute—

“(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.”.

(4) For section 4(1) (execution of declaration), substitute—

“(1) The acquiring authority may execute in respect of any of the land which they are authorised to acquire by the compulsory purchase order a declaration in the prescribed form vesting the land in themselves, or in the case of land or a right that they are authorised to acquire for the benefit of a statutory undertaker or local authority, in the statutory undertaker or local authority in question, from the end of such period as may be specified in the declaration (not being less than 3 months from the date on which the service of notices required by section 6 is completed).”

(5) In section 5(2) (earliest date for execution of declaration)(10) omit the words from “, and this subsection” to the end.

(6) Omit section 5A (time limit for general vesting declaration)(11).

(7) In section 5B(1) (extension of time limit during challenge)(12) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008 the eight year period mentioned in article 27 (time limit for exercise of authority to acquire land compulsorily) of the A122 (Lower Thames Crossing) Development Consent Order 2025.”

(8) In section 6(1)(b) (notices after execution of declaration)(13), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(9) In section 7(1)(a) (constructive notice to treat)(14), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(10) In section 8 (vesting, and right to enter and take possession)(15), after subsection (3), insert—

“(4) In this section references to the acquiring authority include any statutory undertaker or local authority referred to in section 4(1).”.

(11) In section 10(1) (acquiring authority’s liability arising on vesting of the land), after “vested in an acquiring authority” insert “or a statutory undertaker or local authority”.

(12) For section 11(1) (recovery of compensation overpaid)(16), substitute—

“(1) This section applies where after the execution of a general vesting declaration a person (“the claimant”) claims compensation in respect of the acquisition of an interest in land by virtue of the declaration, and the acquiring authority pay compensation in respect of that interest.”.

(13) In Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration)(17), for paragraph 1(2) substitute—

“(2) But see article 33(4) (acquisition of subsoil or airspace only) of the A122 (Lower Thames Crossing) Development Consent Order 2025, which excludes the acquisition of subsoil or airspace only from this Schedule.”.

(14) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and as modified by this Order) to the compulsory acquisition of land under this Order.

Modification of the 2017 Regulations

32.—(1) The Schedule to the 2017 Regulations is modified as follows.

(2) In paragraph (3) of Form 1, after “from the date on which the service of notices required by section 6 of the Act is completed”, insert—

“(1A) The [insert land or rights or both] described in Part [  ] of the Schedule hereto as being for the benefit of third parties and more particularly delineated on the plan annexed hereto vests in the statutory undertaker or local authority in question as from the end of the period of [insert period of 3 months or longer] from the date on which the service of notices required by section 6 of the Act is completed.”.

(3) References in Form 2 to “in themselves” is substituted with “in themselves and any identified third parties”.

(4) In paragraph (b) of the notes on use of Form 2—

(a)after “Insert the name of the authority” insert “and where the context requires insert a reference to third parties”; and

(b)omit “Thereafter rely on that definition wherever “(b)” appears in the text.”.

Acquisition of subsoil or airspace only

33.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or of the airspace over the land referred to in paragraph (1) of article 25 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) In the case of the Order land specified in columns (1) and (2) of Schedule 10 (land in which only subsoil or new rights in and above subsoil and surface may be acquired) the undertaker’s powers of compulsory acquisition are limited to—

(a)the acquisition of such subsoil; and

(b)subject to paragraph (8), the acquisition of such easements or other new rights and the imposition of restrictive covenants in the remaining subsoil and over the surface of the land including rights and restrictive covenants for the benefit of a statutory undertaker,

as the undertaker may require for or in connection with the purposes specified in relation to that land in column (3) of that Schedule.

(3) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over land referred to in paragraphs (1) or (2), the undertaker is not required to acquire an interest in any other part of the land.

(4) The following do not apply in connection with the exercise of the power under paragraph in relation to subsoil or airspace only—

(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 30 (modification of Part 1 of the 1965 Act));

(b)Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c)section 153(4A) (blighted land: proposed acquisition of part interest; material detriment test)(18) of the 1990 Act.

(5) Paragraphs (3) and (4) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

(6) References in paragraph (2)(a) to subsoil are references to the subsoil lying at and below the depths specified in column (2) of Schedule 10 beneath the level of the surface of the land, and references to the remaining subsoil in paragraph (2)(b) are references to the part of the subsoil lying above the shallowest part of the subsoil acquired under paragraph (2)(a) but below the level of the surface of the land.

(7) For the purposes of paragraph (6) and Schedule 10, “the level of the surface of the land” means—

(a)in the case of any land on which a building is erected, the level of the surface of the ground adjoining the building;

(b)in the case of a river (except in the case of the river Thames as provided in sub-paragraph (c)), dock, canal, navigation, watercourse or other water area, the level of the surface of the ground covered by water;

(c)in the case of the river Thames comprised in plots 15-10, 15-11, 15-12, 16-42 and 16-43, the level of Ordnance Datum Newlyn; or

(d)in any other case, ground surface level,

at the time of this Order coming into force.

(8) The undertaker may not acquire easements or other new rights or impose restrictive covenants under paragraph (2)(b) on, over or under the riverbed of the river Thames for the protection of the tunnels.

Rights under or over streets

34.—(1) The undertaker may enter on, appropriate and use so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a)any subway or underground building; or

(b)any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out the authorised development

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)—

(a)enter on and take temporary possession of—

(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

(ii)subject to paragraph (11), any other Order land in respect of which no notice of entry has been served under section 11(19) (powers of entry) of the 1965 Act and no declaration has been made under section 4(20) (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);

(b)remove any apparatus, buildings, landscaping and vegetation from that land;

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

(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—

(a)any person carrying out the authorised development or any of its parts;

(b)the public; or

(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—

(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

(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—

(a)replace a building removed under this article;

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

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

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

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

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

(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(21) (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—

(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);

(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

(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(22) (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(23) (application of compulsory acquisition provisions) of the 2008 Act.

Temporary use of land for maintaining the authorised development

36.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a)subject to paragraph (11), enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development;

(b)subject to paragraph (11), enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

(c)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

(a)any house or garden belonging to a house; or

(b)any building (other than a house) if it is for the time being occupied.

(3) 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 upon 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.

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

(a)the operation of the authorised development or any of its parts;

(b)the public; or

(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.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(6) 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.

(7) 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 powers conferred by this article.

(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation must be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(9) Nothing in this article affects any liability to pay compensation under section 152 (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 execution of any works, other than loss or damage for which compensation is payable under paragraph (7).

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

(11) The undertaker may not take temporary possession under paragraph (1)(a) and (1)(b) 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 in Schedule 10 (land in which only subsoil or new rights in and above soil are surface may be acquired).

(12) Section 13 (refusal to give possession to the acquiring authority) of the 1965 Act applies to the temporary use of 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.

(13) In this article “the maintenance period”, in relation to any part of the authorised development means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use save that in relation to landscaping “the maintenance period” means such period as may be approved in a landscaping and ecology management plan pursuant to paragraph 5 of Schedule 2 (requirements).

Statutory undertakers

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—

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

(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—

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

(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—

(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

(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—

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

(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—

(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

(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).

Apparatus and rights of statutory undertakers in stopped up streets

38.—(1) Where a street is stopped up under article 14 (permanent stopping up of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 14 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or

(b)provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the statutory utility in or in connection with—

(a)the execution of the relocation works required in consequence of the stopping up of the street; and

(b)the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

(a)apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 (street works in England and Wales) of the 1991 Act, but instead—

(a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b)the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this article—

“relocation works” means work executed, or apparatus provided, under paragraph (2); and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of Chapter 1)(24) of the Communications Act 2003.

Recovery of costs of new connections

39.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 37 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 37, any person who is—

(a)the owner or occupier of premises the drains of which communicated with that sewer; or

(b)the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 38 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 (street works in England and Wales) of the 1991 Act applies.

(4) In this article—

“public communications provider” has the same meaning as in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003; and

“public utility undertaker” means a gas, water, electricity or sewerage undertaker.

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(25) (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(26) 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(27), section 193 of the Law of Property Act 1925(28), 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.

Disregard of certain improvements, etc.

41.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal must not take into account—

(a)any interest in land; or

(b)any enhancement of the value of any interest in land by reason of any building erected, works carried out or improvement or alteration made on the relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised development was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works constructed or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.

Set off for enhancement in value of retained land

42.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 28 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—

(a)any increase in the value of the land over which the new rights are required; and

(b)any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised development.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2) as if this Order were a local enactment for the purposes of that Act.

Crown rights

43.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any licensee to use, enter upon or in any manner interfere with any land or rights of any description—

(a)belonging to His Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

(b)belonging to His Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

(c)belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any power under this Order for the compulsory acquisition of any interest in any Crown land (as defined in the 2008 Act) for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.