Infrastructure Planning PART 1 Preliminary Citation and commencement 1 This Order may be cited as the Network Rail (Redditch Branch Enhancement) Order 2013 and comes into force on 21st November 2013. Interpretation 2 1 In this Order— “the 1961 Act ” means the Land Compensation Act 1961 ; “the 1965 Act ” means the Compulsory Purchase Act 1965 ; “the 1980 Act ” means the Highways Act 1980 ; “the 1981 Act ” means the Compulsory Purchase (Vesting Declarations) Act 1981 ; “the 1984 Act ” means the Road Traffic Regulation Act 1984 ; “the 1990 Act ” means the Town and Country Planning Act 1990 ; “the 1991 Act ” means the New Roads and Street Works Act 1991 ; “the 2003 Act ” means the Communications Act 2003 ; “the 2008 Act” means the Planning Act 2008; “the 2009 Regulations ” means the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009; “the access to works and traffic regulation plan” means the access to works and traffic regulation plan certified by the Secretary of State as the access to works and traffic regulation plan for the purposes of this Order; “address” includes any number or address used for the purposes of electronic transmission; “the archaeological and historic impact assessment report” means the archaeological and historic impact assessment report certified by the Secretary of State as the archaeological and historic impact assessment report for the purposes of this Order; “authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development), which is development within the meaning of section 32 of the 2008 Act; “the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order; “building” includes any structure or erection or any part of a building, structure or erection; “carriageway” has the same meaning as in the 1980 Act; “commencement” means the first carrying out of a material operation within the meaning of section 56(4) of the 1990 Act for the construction of the authorised development and commence and commenced are to be construed accordingly; “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act; “the design drawings” means the drawings titled (1) Engineering plans including existing services and new services, drainage and surface water management, (2) Section drawings, (3) Alvechurch station general arrangement, and (4) Landscaping plans, each submitted under regulation 5(2)(o) of the 2009 Regulations and together certified as the design drawings by the Secretary of State for the purposes of the Order; “the ecological impact assessment report” means the ecological impact assessment report certified by the Secretary of State as the ecological impact assessment report for the purposes of this Order; “electronic communications code” has the meaning given in section 137(8) of the 2003 Act “electronic transmission” means a communication transmitted— by means of an electronic communications network; or by other means but while in electronic form; “the environmental reports” means the archaeological and historic impact assessment report; the ecological impact assessment report; the flood risk assessment; the land quality report; the noise assessment report; the visual impacts report and landscape plan/strategy; and the waste management plan; “first open for use” means the date on which Work No. 1 is first used for revenue earning purposes by the passage of passenger carrying railway vehicles; “the flood risk assessment” means the flood risk assessment including a river basin management impact assessment and plan certified by the Secretary of State as the flood risk assessment for the purposes of this Order; “footpath” has the same meaning as in the 1980 Act; “the footpath stopping up and diversion plan” means the plan certified as the footpath stopping up and diversion plan by the Secretary of State for the purposes of this Order; “highway” has the same meaning as in the 1980 Act; “highway authority” means Worcestershire County Council as local highway authority or any successor highway authority; “implementation plan” means a written plan agreed between Network Rail and the highway authority for creation of the agreed alternative footpaths; “the land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order; “the land quality report” means the land quality report certified by the Secretary of State as the land quality report for the purposes of this Order; “lead local flood authority” means the North Worcestershire Water Management Team and any successor flood authority; “limits of deviation” means the limits of deviation referred to in article 6; “maintain” includes to inspect, repair, adjust, alter, remove, reconstruct or replace and any derivative of “maintain” is to be construed accordingly; “Network Rail” means Network Rail Infrastructure Limited, company number 02904587 registered at Kings Place, 90 York Way, London N1 9AG; “the noise assessment report” means the noise assessment report certified by the Secretary of State as the noise assessment report for the purposes of this Order; “Order land” means the land shown on the land plans which is within the limits of land to be acquired or used and described in the book of reference; “the Order limits” means the limits of deviation shown on the works plans and the limits of land to be acquired or used shown on the land plans; “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981 ; “relevant planning authority” means Bromsgrove District Council or any successor planning authority; “statutory undertaker” means any statutory undertaker for the purposes of section 127(8), 128(5) or 129(2) of the 2008 Act; “street” means a street within the meaning of section 48 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street; “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act; “traffic authority”, for the purposes of article 36 (procedure in relation to further approvals etc. , other than under Part 2 of Schedule 1), has the same meaning as in Part 3 of the 1991 Act; “ the tribunal ” means the Lands Chamber of the Upper Tribunal; “the visual impacts report and landscape plan/strategy” means the visual impacts report and landscape plan/strategy certified by the Secretary of State as the visual impacts report and landscape plan/strategy for the purposes of this Order; “ watercourse ” includes all streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; “the waste management plan” means the waste management plan certified by the Secretary of State as the waste management plan for the purposes of this Order; and “the works plan” means the plan certified as the works plan by the Secretary of State for the purposes of this Order. 2 References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the airspace above its surface. 3 All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work. 4 References in this Order to points identified by letters, with or without numbers, are to be construed as references to points so lettered on the relevant plans. 5 References in this Order to numbered works are references to the works as numbered in Part 1 of Schedule 1. Incorporation of the Railway Clauses Acts 3 1 The following provisions of the Railways Clauses Consolidation Act 1845 are incorporated in this Order— section 46 (crossing of roads – level crossings), subject to paragraph (4); section 58 (company to repair roads used by them), except for the words from “and if any question” to the end; section 61 (company to make sufficient approaches and fences to highways crossing on the level); section 68 (accommodation works by company); section 71 (additional accommodation works by owners), except for the words “or directed by such justices to be made by the company” and “or, in case of difference, as shall be authorised by two justices”; sections 72 and 73 (supplementary provisions relating to accommodation works); section 77 (presumption that minerals excepted from acquisition of land); sections 78 to 83, 85 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923 ; and section 105 (carriage of dangerous goods on railway), except for the words from “and if any person” to “for every such offence”. 2 The following provisions of the Railways Clauses Act 1863 are incorporated in this Order— sections 5 and 7 (level crossings); and section 12 (signals, watchmen etc.). 3 In those provisions, as incorporated in this Order— “the company” means Network Rail; “goods” includes any thing conveyed on the railway authorised to be constructed by this Order; “lease” includes an agreement for a lease; “prescribed”, in relation to any such provision means prescribed by this Order for the purposes of that provision; “the railway” means any railway authorised to be constructed by this Order and any other authorised development; and “the special Act ” means this Order. 4 In section 46 of the Railways Clauses Consolidation Act 1845, as incorporated in this Order, for the proviso there is substituted “provided always that, with the consent of the highway authority and subject to such conditions as the authority may reasonably impose, the railway may be carried across a highway on the level”. PART 2 Principal powers Development consent etc. granted by the Order 4 1 Subject to the provisions of this Order and to the requirements in Part 2 (requirements) of Schedule 1 (authorised development and requirements) Network Rail is granted development consent for the authorised development to be carried out within the Order limits. 2 Subject to article 6 (limits of deviation) the authorised development comprising the numbered works in Schedule 1 may only be constructed in the lines and situations shown on the works plan and the levels shown on the section drawings. Maintenance of authorised development 5 Network Rail may at any time maintain the authorised development, except to the extent that this Order or an agreement made under this Order provides otherwise. Limits of deviation 6 In carrying out the authorised development comprising the works numbered in Schedule 1 (authorised development and requirements), Network Rail may— a deviate laterally from the lines or situations of the authorised development shown on the works plan to the extent of the limits of deviation shown on that plan; and b deviate vertically from the levels of the authorised development shown on the section drawings— i to any extent not exceeding 1 metre upwards; or ii to any extent downwards as may be found to be necessary or convenient. Benefit of Order 7 1 The provisions of this Order conferring powers on Network Rail have effect solely for the benefit of Network Rail. 2 Paragraph (1)— a is subject to paragraph (5) of article 17 (compulsory acquisition of rights) of this Order; and b does not apply to the benefit of the consent granted by this Order for works for the benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development. PART 3 Streets Street works 8 1 Network Rail may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 2 (streets subject to street works) as is within the Order limits and may— a break up or open the street, or any sewer, drain or tunnel under it; b tunnel or bore under the street; c place apparatus under the street; d maintain apparatus in the street or change its position; and e execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d). 2 In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act. Public rights of way 9 1 With effect from the date of commencement, the sections of the public rights of way (being footpaths) specified in column (3) of Parts 1 and 2 of Schedule 3 (footpaths to be stopped up) and shown marked in red on the footpath stopping up and diversion plan are extinguished. 2 With effect from the date on which Work No. 1 is first open for use, an alternative section of footpath specified in column (4) of Part 1 of Schedule 3 and as shown marked by vertical zebra hatching on the footpath stopping up and diversion plan is created in accordance with the specification required by the relevant part of the implementation plan. 3 Subject to paragraph (4), with effect from the date of commencement, the sections of the public rights of way (being footpaths) described in Parts 1 and 2 of Schedule 4 (footpaths to be temporarily suspended) and shown marked in orange on the footpath stopping up and diversion plan may be temporarily suspended until the date on which Work No.1 is first open for use. 4 The sections of footpath referred to in column (3) of Part 1 of Schedule 4 may not be temporarily suspended until an alternative section of temporary footpath described in Column (4) of Part 1 of Schedule 4 and as shown marked green on the footpath stopping up and diversion plan is provided in accordance with the relevant part of the implementation plan. 5 With effect from the date on which Work No. 1 is first open for use the section of temporary alternative footpath described in Column (4) of Part 1 of Schedule 4 is to be extinguished. 6 Section 31 (withdrawal of notices to treat) of the Land Compensation Act 1961 does not apply to any part of any of the Order land that is subject to a public right of way. 7 If on the date of commencement Network Rail has not taken entry on land that formed part of a public right of way referred to in paragraph (1) or vested in itself such land then Network Rail is deemed on commencement to have taken entry onto such land for the purposes of section 11(1) of the 1965 Act. Application of the 1991 Act 10 1 Works carried out under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 of the 1991 Act (street works in England and Wales) as major transport works if— a they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) of that Act (which defines what highway authority works are major highway works); or b they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64 of the 1980 Act (dual carriageways and roundabouts). 2 The provisions of the 1991 Act mentioned in paragraph (3) (which, together with other provisions of that Act, apply in relation to the carrying out of street works) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to the carrying out of street works under article 8 (street works) whether or not the carrying out of such works constitutes street works within the meaning of that Act. 3 The provisions of the 1991 Act referred to in paragraph (2) are— section 54 (advance notice of certain works), subject to paragraph (4); section 55 (notice of starting date of works), subject to paragraph (4); section 57 (notice of emergency works); section 59 (general duty of street authority to co-ordinate works); section 60 (general duty of undertakers to co-operate); section 68 (facilities to be afforded to street authority); section 69 (works likely to affect other apparatus in the street); section 76 (liability for cost of temporary traffic regulation); section 77 (liability for cost of use of alternative route); and all such other provisions as apply for the purposes of the provisions mentioned above. 4 Sections 54 and 55 of the 1991 Act as applied by paragraph (2) have effect as if references in section 57 of that Act to emergency works included a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency. Access to works 11 Network Rail may, for the purposes of the authorised development— a form and lay out means of access, or improve existing means of access, in the locations specified in columns (1) and (2) of Schedule 5 (access to works) and shown on the access to works and traffic regulation plan; and b with the approval of the relevant planning authority after consultation with the highway authority, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as Network Rail reasonably requires for the purposes of the authorised development. Agreements with street authorities 12 1 A street authority and Network Rail may enter into agreements with respect to— a the construction of any new street, including any structure carrying the street over or under a railway authorised by the Order; b the maintenance of the structure of any bridge or tunnel carrying a street over or under any authorised railway; c any stopping up, alteration or diversion of a street under the powers conferred by this Order; or d the carrying out in the street of any of the works referred to in article 8(1) (street works). 2 Such an agreement may, without limitation on the scope of paragraph (1)— a make provision for the street authority to carry out any function under this Order which relates to the street in question; b include an agreement between Network Rail and the street authority specifying a reasonable time for the completion of the works; and c contain such terms as to payment and otherwise as the parties consider appropriate. PART 4 Supplemental powers Discharge of water 13 1 Network Rail may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out, operation 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 Network Rail pursuant to paragraph (1) must be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (right to communicate with public sewers). 3 Network Rail 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. 4 Network Rail must not make any opening into any public sewer or drain except— a in accordance with plans approved by the person to whom the sewer or drain belongs; and b where that person has been given the opportunity to supervise the making of the opening. 5 Network Rail must not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river. 6 Network Rail must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension. 7 Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010 . 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 watercourses , used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act. Authority to survey and investigate land 14 1 Network Rail 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— a survey or investigate the land; b without limitation on the scope of sub-paragraph (a), make trial holes in such positions on the land as Network Rail thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples; c without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land; and 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. 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 Any person entering land under this article on behalf of Network Rail— a must, if so required, before or after entering the land produce written evidence of authority to do so; and 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. 4 No trial holes may be made under this article— a on land located within the highway boundary without the consent of the highway authority; or b in a private street without the consent of the street authority. 5 Network Rail 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, under Part 1 of the 1961 Act (determination of questions of disputed compensation). PART 5 Powers of acquisition Compulsory acquisition of land 15 1 Network Rail may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate, or is incidental to, it. 2 This article is subject to paragraph (2) of article 17 (compulsory acquisition of rights) and paragraph (8) of article 23 (temporary use of land for carrying out the authorised development). Time limit for exercise of authority to acquire land compulsorily 16 1 After the end of the period of 5 years beginning on the day on which the Order is made— a no notice to treat may be served under Part 1 of the 1965 Act; and b no declaration may be executed under section 4 of the 1981 Act as applied by article 19 (Application of Compulsory Purchase (Vesting Declarations) Act 1981). 2 The authority conferred by article 23 (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 Network Rail 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 17 1 Subject to paragraph (2) Network Rail may acquire compulsorily such rights over the Order land as may be required for any purpose for which that land may be acquired under article 15 (compulsory acquisition of land) by creating them as well as by acquiring rights already in existence. 2 In the case of the Order land specified in column (1) of Schedule 6 (land in which only new rights etc., may be acquired) Network Rail’s powers of compulsory acquisition are limited to the acquisition of such new rights in the land as may be required for the purpose specified in relation to that land in column (2) of that Schedule. 3 Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights) where Network Rail acquires a right over land Network Rail is not required to acquire a greater interest in that land. 4 Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights) 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. 5 In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, Network Rail may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question. 6 The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (5) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by Network Rail. 7 Subject to paragraph (8), where the power in paragraph (5) is transferred to a statutory undertaker and the statutory undertaker— a is liable to pay compensation for the exercise of that power, and b fails to discharge that liability, the liability is enforceable against Network Rail. 8 Nothing in this article affects any agreement between Network Rail and any statutory undertaker receiving the benefit of any power under paragraph (5). Private rights 18 1 Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished— a as from the date of acquisition of the land by Network Rail, whether compulsorily or by agreement; or b on the date of entry on the land by Network Rail under section 11(1) of the 1965 Act (power of entry), whichever is the earliest. 2 Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights under the Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right— a as from the date of the acquisition of the right by Network Rail, whether compulsorily or by agreement; or b on the date of entry on the land by Network Rail under section 11(1) of the 1965 Act in pursuance of the right, whichever is the earliest. 3 Subject to the provisions of this article, all private rights over land owned by Network Rail which, being within the limits of land which may be acquired or used shown on the land plans and required for the purposes of this Order, are extinguished on the appropriation of the land by Network Rail for any of those purposes. 4 Subject to the provisions of this article, all private rights over land of which Network Rail takes temporary possession under this Order are suspended and unenforceable for as long as Network Rail 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 of the 2008 Act to be determined, in case of dispute, under Part 1 of the 1961 Act. 6 This article does not apply in relation to any right to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 25 (statutory undertakers) applies. 7 Paragraphs (1) to (4) have effect subject to— a any notice given by Network Rail before— i the completion of the acquisition of the land or the acquisition of rights over or affecting the land; ii Network Rail’s appropriation of it; iii Network Rail’s entry onto it; or iv Network Rail’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 Network Rail 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 Reference in this article to private rights over land includes reference to any trusts or incidents to which the land is subject. Application of Compulsory Purchase (Vesting Declarations) Act 1981 19 1 The 1981 Act applies as if this Order were a compulsory purchase order. 2 The 1981 Act, as so applied, has effect with the following modifications. 3 In section 3 (preliminary notices) for subsection (1) there is substituted— 1 Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order the acquiring authority must include the particulars specified in subsection (3) in a notice which is— a given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and b published in a local newspaper circulating in the area in which the land is situated. . 4 In that section, in subsection (2), for “(1)(b)” there is substituted “(1)” and after “given” there is inserted “and published”. 5 In that section, for subsections (5) and (6) there is substituted— 5 For the purposes of this section, a person has a relevant interest in land if— a that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or b that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month. . 6 In section 5 (earliest date for execution of declaration)— a in subsection (1), after “publication” there is inserted “in a local newspaper circulating in the area in which the land is situated”; and b subsection (2) is omitted. 7 In section 7 (constructive notice to treat) in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” is omitted. 8 References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order. Acquisition of subsoil or airspace only 20 1 Network Rail may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in article 15 (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 Where Network Rail acquires any part of or rights in the subsoil of or the airspace over land under paragraph (1), Network Rail is not required to acquire an interest in any other part of the land. 3 Paragraph (2) does not prevent article 21 (acquisition of part of certain properties) from applying where Network Rail acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory. Acquisition of part of certain properties 21 1 This article applies instead of section 8(1) of the 1965 Act (other provisions as to divided land) (as applied by section 125 of the 2008 Act) where— a a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and b a copy of this article is served on the owner with the notice to treat. 2 In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on Network Rail a counter-notice objecting to the sale of the land subject to the notice to treat and stating that the owner is willing and able to sell the whole (“the land subject to the counter-notice”). 3 If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat. 4 If such a counter-notice is served within that period, the question whether the owner is required to sell only the land subject to the notice to treat must, unless Network Rail agrees to take the land subject to the counter-notice, be referred to the tribunal. 5 If on such a reference the tribunal determines that the land subject to the notice to treat can be taken— a without material detriment to the remainder of the land subject to the counter-notice; or b in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house, the owner must sell the land subject to the notice to treat. 6 If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken— a without material detriment to the remainder of the land subject to the counter-notice; or b in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house, the notice to treat is deemed to be a notice to treat for that part. 7 If on such a reference the tribunal determines that— a the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but b the material detriment is confined to a part of the land subject to the counter-notice, the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which Network Rail is authorised to acquire compulsorily under this Order. 8 If Network Rail agrees to take the land subject to the counter-notice, or if the tribunal determines that— a none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and b the material detriment is not confined to a part of the land subject to the counter-notice, the notice to treat is deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which Network Rail is authorised to acquire compulsorily under this Order. 9 Where by reason of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, Network Rail may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and if it does so must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal. 10 Where the owner is required under this article to sell only part of a house, building or manufactory or of land consisting of a house with a park or garden, Network Rail must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired. Rights under or over streets 22 1 Network Rail may enter upon and appropriate 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 air-space for those purposes or any other purpose ancillary to the authorised development. 2 Subject to paragraph (3), Network Rail may exercise any power conferred by paragraph (1) in relation to a street without Network Rail 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 Network Rail acquiring any part of that person’s interest in the land, and who suffers loss by the exercise of that power, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. 5 Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 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 23 1 Network Rail may, in connection with the carrying out of the authorised development— a enter on and take temporary possession of— i the land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and ii any other Order land in respect of which no notice of entry has been served under section 11 of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 of the 1981 Act; b remove any buildings and vegetation from that land; c construct temporary works (including the provision of means of access), security fencing and buildings on that land; and d construct any works specified in relation to that land in column 3 of Schedule 8, or any other mitigation works. 2 Not less than 28 days before entering on and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land. 3 Network Rail 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 (4) of Schedule 8; 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 Network Rail has, before 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. 4 Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but Network Rail is not required to— a replace a building removed under this article; b restore the land on which any works have been constructed under paragraph (1)(d) if the owners and any occupiers consent to the works remaining; or c remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development. 5 Network Rail 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. 6 Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act. 7 Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) 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 (5). 8 Network Rail may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that Network Rail is not precluded from— a acquiring new rights over any part of that land under article 17 (compulsory acquisition of rights); or b acquiring any part of the subsoil of or airspace over (or rights in the subsoil or of airspace over) that land under article 20 (acquisition of subsoil or airspace only). 9 Where Network Rail takes possession of land under this article, Network Rail is not required to acquire the land or any interest in it. 10 Section 13 of the 1965 Act (refusal to give possession to acquiring authority) 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). Temporary use of land for maintaining authorised development 24 1 Subject to paragraph (2), at any time during the maintenance period relating to any of the authorised development, Network Rail may— a enter upon and take temporary possession of any Order land if such possession is reasonably required for the purpose of maintaining the authorised development; 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 Paragraph (1) does not authorise Network Rail 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 before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land. 4 Network Rail 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. 5 Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land. 6 Network Rail 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. 7 Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, must be determined under Part 1 of the 1961 Act. 8 Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) 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 (6). 9 Where Network Rail takes possession of land under this article, it is not required to acquire the land or any interest in it. 10 Section 13 of the 1965 Act (refusal to give possession to the acquiring authority) 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). 11 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. Statutory undertakers and electronic communications code network operators 25 Subject to the provisions of Schedule 10 (protective provisions), Network Rail may— a acquire compulsorily, or acquire new rights over the land belonging to statutory undertakers and electronic communications code network operators shown on the land plans within the limits of the land to be acquired or used and described in the book of reference; and b extinguish the rights of, remove or reposition the apparatus belonging to statutory undertakers and electronic communications code network operators over or within the Order land. Recovery of costs of new connections 26 1 Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 25 (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 Network Rail 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 25, 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 Network Rail 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 In this article— “public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003; and “public utility undertaker” has the same meaning as in the 1980 Act. PART 6 Operations Operation and use of railways 27 1 Network Rail may operate and use the railway and any other elements of the authorised development as a system, or part of a system, of transport for the carriage of passengers and goods. 2 Nothing in this Order, or in any enactment incorporated with or applied by this Order, affects the operation of Part 1 of the Railways Act 1993 (the provision of railway services). Felling or lopping of trees 28 1 Network Rail 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— 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 b from constituting a danger to passengers or other persons using the authorised development. 2 In carrying out any activity authorised by paragraph (1), Network Rail may 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, must be determined under Part 1 of the 1961 Act. PART 7 Miscellaneous and general Operational land for purposes of the 1990 Act 29 Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as operational land for the purposes of that Act). Defence to proceedings in respect of statutory nuisance 30 1 Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order may be made, and no fine may be imposed, under section 82(2) of that Act if— a the defendant shows that the nuisance— i relates to premises used by Network Rail for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or section 65 (noise exceeding registered level), of the Control of Pollution Act 1974 ; or ii is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or b the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot be reasonably avoided. 2 Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), does not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the construction or maintenance of the authorised development. Traffic regulation 31 1 Subject to the provisions of this article, and the consent of the traffic authority in whose area the road concerned is situated, Network Rail may, at any time for the purposes of the construction of the authorised development permit or prohibit vehicular access in the manner specified in Schedule 9 (traffic regulation) on those roads specified in column (1) and to the extent otherwise described in column (2) of that Schedule. 2 Without limitation on the scope of the specific powers conferred by paragraph (1) but subject to the provisions of this article and the consent of the traffic authority in whose area the road concerned is situated, Network Rail may, in so far as may be expedient or necessary for the purposes of or in connection with construction of the authorised development, at any time prior to the opening of the authorised development for use— a revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act; b permit, prohibit or restrict the stopping, parking, waiting, loading or unloading of vehicles on any road; c authorise the use as a parking place of any road; d make provision as to the direction or priority of vehicular traffic on any road; and e permit or prohibit vehicular access to any road, either at all times or at times, on days or during such periods as may be specified by Network Rail. 3 Network Rail must not exercise the powers of paragraphs (1) and (2) unless it has— a given not less than 4 weeks’ notice in writing of its intention to do so to the chief officer of police and to the traffic authority in whose area the road is situated; and b advertised its intention in such manner as the traffic authority may specify in writing within 7 days of its receipt of notice of Network Rail’s intention in the case of sub-paragraph (a). 4 Any prohibition, restriction or other provision made by Network Rail under paragraph (1) or (2)— a has effect as if duly made by, as the case may be— i the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act; or ii the local authority in whose area the road is situated as an order under section 32 of the 1984 Act, and the instrument by which it is effected may specify savings and exemptions (in addition to those mentioned in Schedule 9 (traffic regulation)) to which the prohibition, restriction or other provision is subject; and b is deemed to be a traffic order for the purposes of Schedule 7 to the Traffic Management Act 2004 (road traffic contraventions subject to civil enforcement). 5 Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by Network Rail from time to time by subsequent exercise of the powers conferred by paragraph (2) at any time prior to the opening of the authorised development for use. 6 Before complying with the provisions of paragraph (3) Network Rail must consult the chief officer of police and the traffic authority in whose area the road is situated. 7 Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act. Application of the Land Compensation Act 1973 32 1 Any regulations made by the Secretary of State under section 20 (sound proofing of buildings affected by public works) and 20A (power to make payments in respect of caravans and other structures affected by noise of public works) of the Land Compensation Act 1973 which apply to a railway provided or used in the exercise of statutory powers apply to the railway comprised in the authorised development as if that railway was provided or used in the exercise of statutory powers. 2 Section 28 (power to pay expenses) of the Land Compensation Act 1973 has effect as if any works comprised in the authorised development were public works for the purposes of that section. Certification of plans, etc. 33 1 Network Rail must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of— a the access to works and traffic regulation plan; b the book of reference; c the design drawings; d the environmental reports; e the footpath stopping up and diversion plan; f the land plans; and g the works plan for certification that they are true copies of the documents referred to in this Order. 2 A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy. Service of notices 34 1 A notice or other document required or authorised to be served for the purposes of this Order may be served— a by post; b by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or c with the consent of the recipient and subject to paragraphs (6) to (8) by electronic transmission. 2 Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body. 3 For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise— a in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and b in any other case, the last known address of that person at the time of service. 4 Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by— a addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and b either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land. 5 Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement may be taken to be fulfilled only where— a the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission; b the notice or document is capable of being accessed by the recipient; c the notice or document is legible in all material respects; and d the notice or document is in a form sufficiently permanent to be used for subsequent reference. 6 Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable. 7 Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8). 8 Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order— a that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and b such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given. 9 This article must not be taken to exclude the employment of any method of service not expressly provided for by it. 10 In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form. Arbitration 35 Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers. Procedure in relation to further approvals, etc., other than under Part 2 of Schedule 1 36 1 In this article— “plans” includes sections, drawings, specifications and particulars (including descriptions of methods of construction). 2 Where an application is made to the relevant planning authority, the highway authority, or the highway authority acting in the capacity of street authority or traffic authority, for any consent, agreement or approval required under any of the provisions of this Order (other than under Part 2 (requirements) of Schedule 1 (authorised development and requirements)) such application must, where appropriate, be accompanied by proper and sufficient plans of the proposal and such consent, agreement or approval must, if given, be in writing and may be given subject to such reasonable terms and conditions as the authority may require and may not be unreasonably withheld. 3 If, within 28 days after the application has been submitted to the authority in accordance with this article, it has not intimated its disapproval and the grounds of disapproval, the authority is deemed to have approved the content of the application. 4 In the event of any refusal or disapproval by the authority, Network Rail may resubmit a revised application, or revised plans in support of the original application, and, in that event, if the authority has not intimated its refusal or disapproval and the grounds of refusal or disapproval within 28 days of the revised application or of revised plans being submitted, it is deemed to have given its consent or agreement to, or its approval of, the revised application or plans. 5 Network Rail must not carry out the proposal until such plans have been approved (or deemed to have been approved) or settled by arbitration. 6 Where an application is made to the owner of a sewer or drain for any consent or approval required under article 13 (discharge of water), such consent or approval may not be unreasonably withheld or delayed. Further provisions, as to approvals, etc , under Part 2 of Schedule 1 37 1 Where the application is for a consent, agreement or approval required by a requirement under Part 2 (requirements) of Schedule 1 (authorised development and requirements), the following provisions apply, so far as they relate to a consent agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission, as if the requirement was a condition imposed on the grant of a planning permission— a sections 78 (other than paragraph (a) of subsection (2)) and 79 of the 1990 Act (right of appeal in relation to planning decisions); b any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission. 2 For the purposes of paragraph (1), a provision relates to a consent, agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission in so far as it makes provision in relation to an application for such a consent, agreement or approval, or the grant or refusal of such an application, or a failure to give notice of a decision on such an application. Protective provisions 38 Schedule 10 (protective provisions) has effect. Saving for regulated rights, etc. 39 Nothing in this Order affects any estate, right or interest granted by Network Rail in respect of a railway facility which is subject to an access contract within the meaning of Part 1 of the Railways Act 1993. Signed by authority of the Secretary of State for Transport Martin Woods Head of the Transport and Works Act Orders Unit Department for Transport 31st October 2013