PART 4SUPPLEMENTAL POWERS

Discharge of water

17.—(1) Subject to sub-paragraphs (3) and (4) below 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 project and for that purpose may inspect, 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 pursuant to sub-paragraph (1) is determined as if it were a dispute under section 106 of the Water Industry Act 1991(1) (right to communicate with public sewers).

(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 carry out any works to any public sewer or drain pursuant to sub-paragraph (1) except—

(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

(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 pursuant to this article, damage or interfere with the bed or banks of, or construct any works in, under, over or within eight metres of, any watercourse forming part of a main river, or within 16 metres of a tidally influenced main river without the prior written consent of 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.

(7) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by regulation 12 (requirement for a permit) of the Environmental Permitting (England and Wales) Regulations 2016(2).

(8) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board or a local authority; and

(b)other expressions, excluding watercourse, used both in this article and in the Environmental Permitting (England and Wales) Regulations 2016 and the Water Resources Act 1991 have the same meaning as in those statutory provisions.

(9) If a person who receives an application for consent or approval fails to notify the undertaker of a decision within 28 days of receiving an application for consent under sub-paragraph (3) or approval under paragraph (4) that person is deemed to have granted consent or given approval, as the case may be.

Protective work to buildings

18.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a)at any time before or during the carrying out of any part of the authorised project in the vicinity of the building; or

(b)after the completion of that part of the authorised project in the vicinity of the building at any time up to the end of the period of five years beginning with the day on which that part of the authorised project first becomes operational.

(3) For the purpose of determining how the powers under this article are to be exercised, the undertaker may enter and survey any building falling within sub-paragraph (1) and any land within its curtilage.

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

(a)enter the building and any land within its curtilage; and

(b)where the works cannot be carried out reasonably conveniently without entering land that is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a)a power under sub-paragraph (1) to carry out protective works to a building;

(b)a power under sub-paragraph (3) to enter a building and land within its curtilage;

(c)a power under sub-paragraph (4)(a) to enter a building and land within its curtilage; or

(d)a power under sub-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 the power 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 sub-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 of 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 46 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which powers under this article have been exercised for any loss or damage arising to them by reason of the exercise of the powers.

(8) Where—

(a)protective works are carried out under this article to a building; and

(b)within the period of five years beginning with the day on which the part of the authorised project carried out in the vicinity of the building first becomes operational 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 project,

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 of the 2008 Act (compensation in case where no right to claim in nuisance).

(10) Any compensation payable under sub-paragraph (7) or (8) must be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(11) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession of land under this article to the same extent as it applies in respect of the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

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

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

(b)any works the purpose of which is to remedy any damage that has been caused to the building by the carrying out, maintenance or use of the authorised project.

Authority to survey and investigate the land onshore

19.—(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 project or land on which surveys and investigations are required for the monitoring of the authorised project or for the carrying out of ground, ecological or archaeological investigations and—

(a)survey or investigate the land including aerial surveys carried out by drone;

(b)without prejudice to the generality of sub-paragraph (a), survey, monitor and or investigate the land and any buildings or structures on that land for the purpose of investigating the potential effects of the authorised project on that land or buildings or structures on that land or for enabling the construction, operation use and maintenance of the authorised project;

(c)without prejudice to the generality of sub-paragraph (b) make trial pits or boreholes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(d)without prejudice to the generality of sub-paragraph (a), carry out ecological or archaeological investigations on such land, including the digging of trial trenches in such positions on the land as the undertaker thinks fit to carry out archaeological and site investigations; and

(e)place on, leave on and remove from the land apparatus and welfare facilities for use in connection with the survey monitoring and or investigation of land, the making of trial pits or boreholes and or the carrying out of ecological and or archaeological investigations.

(2) No land may be entered or equipment placed or left on or removed from the land under sub-paragraph (1) unless at least 14 days’ notice has been served on every owner or occupier of the land.

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

(a)must, if so required on entering the land, produce written evidence of their authority to do so; and

(b)may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial pits or boreholes.

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

(a)in land forming a railway without the consent of Network Rail;

(b)in land held by or in right of the Crown without the consent of the Crown;

(c)in land located within the highway boundary without the consent of the highway authority; or

(d)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld or delayed.

(5) Following completion of any activities being undertaken pursuant to this article the undertaker must remove all equipment, apparatus and welfare facilities placed on the land in connection with such activities as soon as practicable, and the land must be restored to its original condition.

(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, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) If a street authority or highway authority that receives an application for consent or approval fails to notify the undertaker of a decision within 28 days of receiving an application for consent under sub-paragraph 4(c) or (d), that person is deemed to have granted consent or given approval, as the case may be.

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

Public rights of navigation

20.—(1) Subject to sub-paragraph (2), the rights of navigation over the places in the sea where any of the permanent structures are located within territorial waters will be suspended.

(2) The suspension of the rights of navigation over the places identified in sub-paragraph (1) will take effect 14 days after the undertaker has submitted a plan to the Secretary of State, Trinity House, the Maritime Coastguard Agency and the MMO showing the precise locations of the foundations of each of any such permanent structure to be constructed as part of the authorised development within territorial waters.

(3) In respect of the location of any individual permanent structure sub-paragraph (1) will cease to have effect as soon as that permanent structure has been decommissioned in accordance with a decommissioning programme approved under section 106 (approval of decommissioning programmes) of the 2004 Act and permanently removed, and the relevant rights of navigation will resume.

(4) The plan submitted in accordance with sub-paragraph (2) will be published by the undertaker as required by the Secretary of State.

(5) In this article 20 “permanent structures” means wind turbine generators and offshore substations including their foundations.

Temporary suspension of public access to access land

21.—(1) This provision applies to the access land described in Schedule 6 (temporary suspension of public access to access land).

(2) The undertaker may, in connection with the authorised project temporarily—

(a)interfere with such parts of the access land as are affected by the authorised project by constructing, maintaining or decommissioning the relevant part of the authorised project as the undertaker considers necessary or expedient; and

(b)close to the public such parts of the access land as are affected by the authorised project during construction, maintenance or decommissioning of the relevant part of the authorised project.

(3) No fewer than 28 days before exercising any power under sub-paragraph (2), the undertaker must notify the South Downs National Park Authority as relevant planning authority of its intention to exercise such powers.

(4) During the period of any closure referred to in sub-paragraph (2)(b), all rights of access to the public are to be suspended.

(5) The power conferred by sub-paragraph (2) must be exercised in a way which secures—

(a)that no more of the relevant part of the access land is closed to the public at any time than is necessary in the circumstances; and

(b)that all reasonable steps are taken to secure that the period of closure is kept to a minimum and that the minimum obstruction or interference is caused to the public which may be intending to use the part so closed.

(6) As soon as practicable following the exercise of any powers under sub-paragraph (2), any temporary works, plant, machinery and fencing must be removed and access to the access land restored.