PART 5POWERS OF ACQUISITION

Temporary use of land for maintaining the authorised project

32.—(1) Subject to sub-paragraph (2), at any time during the maintenance period relating to any part of the authorised project, the undertaker may—

(a)enter on and take temporary possession of any land within the Order land if such possession is reasonably required for the purpose of maintaining the authorised project; and

(b)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) Sub-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) Unless sub-paragraph (4) applies, the undertaker must serve notice of the intended entry on the owners and occupiers of the land not less than 28 days before entering on and taking temporary possession of land under this article.

(4) The undertaker is not required to serve notice under sub-paragraph (3) in the case of emergency where the undertaker has identified a potential risk to the safety of any of—

(a)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 sub-paragraph (1) subject to giving such 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 project 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 provisions of this article.

(8) Any dispute as to a person’s entitlement to compensation under sub-paragraph (6), or as to the amount of the compensation, must be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(9) Subject to article 52 (no double recovery) 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 execution of any works, other than loss or damage for which compensation is payable under sub-paragraph (7).

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

(11) Section 13 (refusal to give possession to 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 of the 2008 Act (application of compulsory acquisition provisions).

(12) In this article “the maintenance period”, in relation to any part of the authorised project, means—

(a)where the authorised development consists of the maintenance of any tree or shrub a period of 10 years beginning with the date on which that tree or shrub is first planted;

(b)in relation to any other part of the authorised project the period of five years beginning with the date on which the authorised project is brought into commercial operation; and

(c)any period falling between the date at which temporary possession is no longer permitted under article 31 (temporary use of land for carrying out the authorised project) and the date on which the authorised project is brought in to commercial operation.