PART 4SUPPLEMENTAL POWERS

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 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) of the Water Industry Act 1991(1).

(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 pursuant to paragraph (1) 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 other than in accordance with a consent granted by the Environment Agency.

(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 or solution.

(7) This article does not authorise a groundwater activity or a water discharge activity for which an environmental permit would be required under regulation 12(1)(b) (requirement for an environmental permit) of the 2016 Regulations.

(8) In this article—

article 19 8 a + (a)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;

article 19 8 b + (b)other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(2) have the same meaning as in that Act; and

article 19 8 c + (c)term main river + “main river” means watercourses as defined under section 113(1)(3) (interpretation of Part IV) of the Water Resources Act 1991 and shown as such on the statutory main river maps held by the Environment Agency and the Department for Environment, Food and Rural Affairs.

(9) 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.

(10) Subject to paragraphs (11) and (12), an application for consent under paragraph (3) or for approval under paragraph (4)(a) must contain a written statement that the provisions of paragraph (9) apply to that application.

(11) The Environment Agency is deemed to have granted consent under paragraph (3) where the watercourse, public sewer or drain belongs to the Environment Agency and an environmental permit under regulation 12(1)(b) (requirement for an environmental permit) of the 2016 Regulations has been granted in respect of the discharge.

(12) A sewerage undertaker is deemed to have granted consent to the discharge of trade effluent into a public sewer under paragraph (3) where the public sewer belongs to the sewerage undertaker and consent under section 118 (consent required for discharge of trade effluent into public sewer) of the Water Industry Act 1991 has been granted in respect of the discharge.

Protective work to 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 building 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 building 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 building 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 building any apparatus and equipment for use in connection with the survey.

(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—

article 20 4 a + (a)enter the building and any land within its curtilage; 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).

(5) Before exercising—

article 20 5 a + (a)a right under paragraph (1) to carry out protective works to a building;

article 20 5 b + (b)a right under paragraph (3) to enter a building and land within its curtilage;

article 20 5 c + (c)a right under paragraph (4)(a) to enter a building and land within its curtilage; 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 52 (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 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) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152(4) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) 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.

(11) Section 13(5) (refusal to give possession to acquiring authority) of the 1965 Act applies to entry onto, or possession 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(6) (application of compulsory acquisition provisions) of the 2008 Act.

term protective works + (12) In this article “protective works” in relation to a building means—

article 20 12 a + (a)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the carrying out, maintenance or use of the authorised development;

article 20 12 b + (b)any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development; and

article 20 12 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 this Order 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 to 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 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 to 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, boreholes or excavations.

(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.

(3) The notice required under paragraph (2) must indicate the nature of the survey or investigation that the undertaker intends to take.

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

article 21 4 a + (a)must, if so required, before or after entering the land, produce written evidence of their authority to do so; and

article 21 4 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, boreholes or excavations.

(5) No trial holes, boreholes or excavations are to be made under this article—

article 21 5 a + (a)in land located within a highway boundary without the consent of the highway authority; or

article 21 5 b + (b)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld or delayed.

(6) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority 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.

(7) If either a 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 7 a + (a)under paragraph (4)(a) in the case of a highway authority; or

article 21 7 b + (b)under paragraph (4)(b) in the case of a street authority,

that authority will be deemed to have granted consent.

(8) Any application made under paragraph (4)(a) or paragraph (4)(b) must include a written statement that the provisions of paragraph (7) apply to the application.

(9) Section 13 (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 (application of compulsory acquisition provisions) of the 2008 Act

Felling, lopping and removal of trees, shrubs and hedgerows

article 22 + 22.—(1) Subject to paragraph 9 or 10 of Schedule 2 (requirements) to this Order, the undertaker may fell, lop or remove any tree, shrub or hedgerow 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, shrub or hedgerow—

article 22 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 22 1 b + (b)from constituting a danger to persons using the authorised development.

(2) The powers in sub-paragraph (1) may not be exercised in relation to any tree, shrub or hedgerow which is—

article 22 2 a + (a)situated within a conservation area (designated under section 69 (designation of conservation areas) of the Planning (Listed Buildings and Conservation Areas) Act 1990(7));

article 22 2 b + (b)subject to a tree preservation order made under Part 8 (special controls) of the 1990 Act and the Town and Country Planning (Tree Preservation) (England) Regulations 2012(8),

unless that tree, shrub or hedgerow has been identified in a scheme or plan submitted under paragraph 9 (landscaping design) or paragraph 10 (landscape and biodiversity management plan) of Schedule 2 to this Order along with written details of the proposed works, and the relevant planning authority has provided written approval of that scheme or plan.

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

(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 hedgerow + (5) In this article “hedgerow” has the same meaning as in the Hedgerow Regulations 1997(9) and includes important hedgerows.

Removal of human remains

term the specified land + article 23 + 23.—(1) In this article “the specified land” means any land within the Order limits.

(2) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it is to 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 is to give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article by—

article 23 3 a + (a)publishing a notice for two successive weeks in a newspaper circulating in the area of the authorised development; and

article 23 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 is to send a copy of the notice to the relevant 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 remains in question can be identified, that person may cause such remains to be—

article 23 6 a + (a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

article 23 6 b + (b)removed to, and cremated in, any crematorium,

and that person is to, 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 is to pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under powers conferred by 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 is to remove the remains and as to the payment of the costs of the application.

(9) If—

article 23 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 23 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 23 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 23 9 d + (d)it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (10) the undertaker is to 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 are to be re-interred in individual containers which are to 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, the undertaker is to 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 powers conferred by this article—

article 23 11 a + (a)a certificate of re-interment or cremation is to be sent by the undertaker to the Registrar General 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 23 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 planning authority.

(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 for Justice.

(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 23 14 a + (a)that the remains were interred more than 100 years ago; and

article 23 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 23 15 a + (a)may remove the remains;

article 23 15 b + (b)must apply for direction from the Secretary of State under paragraph (12) as to their subsequent treatment; and

article 23 15 c + (c)must deal with the remains in such manner, and subject to such conditions, as the Secretary of State directs.

(16) In this article—

article 23 16 a + (a)references to a relative of the deceased are to a person who—

article 23 16 a i + (i)is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased; or

article 23 16 a ii + (ii)is, or is a child of, a brother, sister, uncle or aunt of the deceased; and

article 23 16 b + (b)references to a personal representative of the deceased are to a person or persons who—

article 23 16 b i + (i)is the lawful executor of the estate of the deceased; or

article 23 16 b ii + (ii)is the lawful administrator of the estate of the deceased.

(17) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857(10) does not apply to a removal carried out in accordance with this article.