Infrastructure Planning, England Citation 1 This Order may be cited as the Rookery South (Resource Recovery Facility) Order 2011. 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 1990 Act ” means the Town and Country Planning Act 1990 ; “the 1991 Act ” means the New Roads and Street Works Act 1991 ; “the 2008 Act” means the Planning Act 2008; “the authorised development” means the development and associated development described in Part 1 of Schedule 1 and any other development authorised by this Order, 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 decision-maker 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; “the code of construction practice” means the code of construction practice certified by the decision-maker as the code of practice for the purposes of this Order; “commence” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised development other than operations consisting of site clearance, demolition work, archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary means of enclosure, or the temporary display of site notices or advertisements and “commencement” is to be construed accordingly; “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act; “the decision-maker” has the same meaning as in section 103 of the 2008 Act; “the design and access statement” means the design and access statement certified by the decision-maker as the design and access statement for the purposes of this Order; “highway” and “highway authority” have the same meaning as in the 1980 Act; “the land plans” means the plans certified as the land plans by the decision-maker for the purposes of this Order; “limits of deviation” means the limits of deviation for the scheduled works comprised in the authorised development shown on the works plans; “local highway authority” has the same meaning as in section 329(1) of the 1990 Act; “maintain” includes maintain, inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct, decommission, demolish, replace and improve and “maintenance” is to be construed accordingly; “the Order land” means the land shown on the land plans which is within the Order limits and described in the book of reference; “the Order limits” means the limits shown on the Order limits plan and works plans within which the authorised development may be carried out; “the Order limits plan” means the plan certified as the Order limits plan by the decision-maker for the purposes of this Order; “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981 ; “the relevant planning authority” means Central Bedfordshire Council in relation to land in its area and Bedford Borough Council in relation to land in its area, and “the relevant planning authorities” means both of them; “requirement” means a requirement set out in Part 2 of Schedule 1; “the rights of way plan” means the plan certified as the rights of way plan by the decision-maker for the purposes of this Order; “the scheduled works” means the works specified in Part 1 of Schedule 1, or any part of them as the same may be varied pursuant to article 3; “the sections” means the sections certified as the sections by the decision-maker for the purposes of this Order; “statutory undertaker” means any person falling within 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; “the tribunal” means the Lands Chamber of the Upper Tribunal; “the undertaker” means, in relation to any provision of this Order, Covanta Rookery South Limited and any other person who has the benefit of that provision in accordance with article 7 or section 156 of the 2008 Act; “watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain and also includes the water body or water bodies contained in Rookery North Pit, Stewartby; and “the works plans” means the plans certified as the works plans by the decision-maker for the purposes of this Order. 2 References in this Order to a numbered Work are references to the Work so numbered in Part 1 of Schedule 1. 3 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 air-space above its surface. 4 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 to be taken to be measured along that work. Development consent etc. granted by the Order 3 1 Subject to the provisions of this Order and to the requirements the undertaker is granted development consent for the authorised development to be carried out within the Order limits. 2 The authorised development may be constructed in the lines or situations shown on the works plans and, subject to the provisions of the requirements, in accordance with the drawings specified in the requirements. 3 The works comprised in the authorised development may be constructed within the limits of deviation. 4 In constructing or maintaining the scheduled works, the undertaker may— a deviate laterally from the lines or situations shown on the works plans within the limits of deviation; and b deviate vertically from the levels shown for those works on the sections to any such extent downwards as may be necessary, convenient or expedient provided that the stack shall not be lower in height than 135.25 metres above ordnance datum. 5 Nothing in this Order or the Town and Country Planning (General Permitted Development) (England and Wales) Order 1995 in its application to the authorised development permits─ a development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the 1990 Act or any requirement otherwise than where expressly authorised by either Order; b any part of Work No. 1 (other than the stack comprised in that work) to exceed the height of the building shown on the plans listed in requirement 6. Procedure in relation to approvals etc. under requirements 4 1 Where an application is made to the relevant planning authorities or either of them for any consent, agreement or approval required by a requirement, 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 planning permission— a sections 78 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. 3 For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant this article, the undertaker is deemed to be a holder of a licence under section 6 of the Electricity Act 1989 . Maintenance of authorised development 5 1 Subject to the other terms of this Order, including the requirements, the undertaker may maintain the authorised development, except to the extent that an agreement made under this Order provides otherwise. 2 Subject to paragraph (3) and the requirements, the power to maintain the authorised development includes the power to carry out and maintain such of the following as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction or operation of the authorised development, namely— a works to alter the position of apparatus below ground level, including mains, sewers, drains and cables including below ground structures associated with that apparatus within the Order limits; b works of decommissioning and demolition. 3 This article only authorises the carrying out of maintenance of works within the Order limits. Operation of generating station 6 1 The undertaker is authorised to operate the generating station comprised in the authorised development. 2 This article does not relieve the undertaker of any requirement to obtain any permit or licence or any other obligation under any other legislation that may be required to authorise the operation of a generating station. Benefit of the Order 7 1 Except as provided for by this article, section 156(1) of the 2008 Act applies to the grant of development consent by this Order. 2 The undertaker may— a transfer to another person (the “transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed in writing between the undertaker and the transferee; or b grant to another person (the “lessee”) for a period agreed in writing between the undertaker and the lessee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed. 3 Where an agreement has been made in accordance with paragraph (2) references in this Order to the undertaker, except in paragraph (4), include references to the transferee or lessee. 4 The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (2) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker. 5 The consent of the Secretary of State, being the Secretary of State who would be responsible for determining an application for development consent with the subject matter of this Order, is required for the exercise of the powers of paragraph (2) except where— a the transferee or lessee is— i a statutory undertaker; ii a principal council, a joint authority or a joint waste authority in England as defined in the Local Government Act 1972 ; iii an authority designated under the Waste Regulation and Disposal (Authorities) Order 1985 ; or iv a person having security over any part of the undertaking of the undertaker in respect of Work No. 1 in relation to contractual arrangements relating to a contract between the undertaker and a person referred to in sub-paragraphs (i) to (iii); b the time limits for claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and— i no such claims have been made; ii any such claim has been made and has been compromised or withdrawn; iii compensation has been paid in final settlement of any such claim; iv payment of compensation into court in lieu of settlement of any such claim has taken place; or v it has been determined by a tribunal or court of competent jurisdiction in respect of any such claim that no compensation shall be payable; or c the transfer or lease relates to any part of the authorised development except Work No. 1. 6 The provisions of articles 9 to 12, 14 to 25 and 30 have effect only for the benefit of Covanta Rookery South Limited and a person who is a transferee or lessee as referred to in paragraph (2) and is also— a the transferee or lessee of the land occupied by Work No. 1; b in respect of Works No. 6A to 6H, a person who holds a licence under section 6(1) of the Electricity Act 1989, or who is not required to hold such a licence by virtue of an exemption order under section 5 of that Act; c in respect of articles 15 and 18, the transferee or lessee of the land occupied by Work No. 2; or d in respect of functions under article 10 relating to a street, a street authority. 7 Where a person who is the transferee or lessee as referred to in paragraph (2)— a is liable to pay compensation by virtue of any provision of this Order; and b fails to discharge that liability, the liability is enforceable against the undertaker in respect of Work No. 1. Guarantees in respect of payment of compensation 8 1 The authorised development must not be commenced and the undertaker must not begin to exercise the powers of articles 17 to 27 of this Order unless either a guarantee in respect of the liabilities of the undertaker to pay compensation under this Order or an alternative form of security for that purpose is in place which has been approved by the relevant planning authorities. 2 A guarantee given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the guarantor by any person to whom such compensation is payable. Defence to proceedings in respect of statutory nuisance 9 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 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 the undertaker 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 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— i relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development which is being used in accordance with a scheme of monitoring and attenuation of noise agreed with the Central Bedfordshire Council as described in requirement 19; or ii is a consequence of the use of the authorised development and that it cannot reasonably be avoided. 2 Section 61(9) of the Control of Pollution Act 1974 (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) and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded) do not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development. Street works 10 1 The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 2 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 in the street; d maintain apparatus in the street or change is position; and e execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d). 2 The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act. 3 The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1). 4 In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act. Public rights of way 11 1 With effect from the date upon which authorised development is first commenced the section of each public right of way specified in columns (1) and (2) of Part 1 of Schedule 3 and shown on the rights of way plan is extinguished to the extent specified in column (3) of that Part of that Schedule. 2 With effect from the date of satisfaction by the local highway authority that a public right of way specified in columns (1) and (2) of Part 2 of Schedule 3 has been improved to the standard defined in the implementation plan, the public right of way in question is deemed to have the status specified in column (3) of that Part of that Schedule. 3 In this article “implementation plan” means the written plan agreed between the undertaker and the local highway authority for the improvement of the public right of way in question. Temporary stopping up of streets 12 1 The undertaker, during and for the purposes of carrying out the authorised development, may temporarily stop up, alter or divert any street and may for any reasonable time— a divert the traffic from the street; and b subject to paragraph (2), prevent all persons from passing along the street. 2 The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration or diversion of a street under this article if there would otherwise be no such access. 3 Without prejudice to the generality of paragraph (1), the undertaker may temporarily stop up, alter or divert the street specified in columns (1) and (2) of Schedule 4 to the extent specified, by reference to the letters and numbers shown on the works plan, in column (3) of that Schedule. 4 The undertaker must not temporarily stop up, alter or divert— a the street specified as mentioned in paragraph (3) without first consulting the local highway authority; and b any other street without the consent of the local highway authority which may attach reasonable conditions to any consent. 5 Any person who suffers loss by the suspension of any private rights of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation). Access to works 13 The undertaker may, for the purposes of carrying out the authorised development— a form and lay out means of access, or improve existing means of access, in the location specified in columns (1) and (2) of Schedule 5; 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 the undertaker reasonably requires for the purposes of the authorised development. Agreements with street authorities 14 1 A street authority and the undertaker may enter into agreements with respect to— a any stopping up, alterations or diversion of a street authorised by this Order; or b the carrying out in the street of any of the works referred to in article 10(1). 2 Such an agreement may, without prejudice to the generality 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 the undertaker and 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. Discharge of water 15 1 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 pursuant to paragraph (1) is to be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (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 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, 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 any watercourse forming part of a main river. 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 38 of the Environmental Permitting Regulations (England and Wales) 2010 (offences of polluting water). 8 In this article— a “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority or a sewerage undertaker; and b other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act. 9 This article has effect in relation to watercourses or drains that are created or to be created as part of any restoration scheme applicable to Rookery South Pit and authorised by a review of old minerals permissions pursuant to section 96 of the Environment Act 1995 reference number BC/CM/2000/08. Authority to survey and investigate the land 16 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— a survey or investigate the land; b without prejudice to the generality of sub-paragraph (a), make trial holes 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; c without prejudice to the generality 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 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 holes. 4 No trial holes must be made under this article— a in 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, but such consent must not be unreasonably withheld. 5 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 of the 1961 Act. Compulsory acquisition of land 17 1 The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate it, or as is incidental to it. 2 As from the date on which a compulsory acquisition notice under section 134(3) of the 2008 Act is served or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, that land or that part of it which is vested (as the case may be) is discharged from all rights, trusts and incidents to which it was previously subject. 3 Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. 4 This article is subject to article 25. Power to override easements and other rights 18 1 Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker, by its successor pursuant to a transfer or lease under article 7 of this Order, by any person deriving title under them or by any of their servants or agents) is authorised by this Order for the purposes of this article if it is authorised by the Order apart from this article and done in accordance with the terms of this Order, notwithstanding that it involves— a an interference with an interest or right to which this article applies; or b a breach of a restriction as to the user of land arising by virtue of a contract. 2 In this article “authorised activity” means— a the erection, construction or carrying out, or maintenance of any building or work on land; b the erection, construction, or maintenance of anything in, on, over or under land; or c the use of any land. 3 The interests and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by the virtue of a contract having that effect. 4 Where any interest or right to which this article applies is interfered with or any restriction breached by any authorised activity in accordance with the terms of this article the interest or right is extinguished, abrogated or discharged at the time that the interference or breach in respect of the authorised activity in question commences. 5 In respect of any interference, breach, extinguishment, abrogation or discharge in pursuance of this article, compensation— a is payable under section 7 or 10 of the 1965 Act; and b is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where— i the compensation is to be estimated in connection with a purchase under that Act; or ii the injury arises from the execution of works on or use of land acquired under that Act. 6 Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1). 7 This article does not apply in respect of any agreement, restriction, obligation or other provision contained in a deed made pursuant to section 106 of the 1990 Act or section 278 of the 1980 Act. Time limit for exercise of authority to acquire land compulsorily 19 1 After the end of the period of 5 years beginning on the day on which this Order is made— a no notice to treat may be served under Part 1 of the 1965 Act; and b no declarations may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 21. 2 The authority conferred by article 25 ceases at the end of the period referred to in paragraph (1), save that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period if the land was entered and possession was taken before the end of that period. Compulsory acquisition of rights 20 1 The undertaker may acquire compulsorily the existing rights and create and acquire compulsorily the new rights described in the book of reference and shown on the land plans. 2 As from the date on which a compulsory acquisition notice is served or the date on which a new right is vested in the undertaker, whichever is the later, the land over which any new right is acquired is discharged from all rights trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right. 3 Subject to section 8 of the 1965 Act as substituted by article 23, where the undertaker acquires an existing right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land. 4 Any person who suffers loss as a result of the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. Application of the Compulsory Purchase (Vesting Declarations) Act 1981 21 1 The Compulsory Purchase (Vesting Declarations) Act 1981 applies as if this Order were a compulsory purchase order. 2 The Compulsory Purchase (Vesting Declarations) Act 1981, 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 shall 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)” are omitted. 8 References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 are to be construed as references to that Act as applied by section 125 of the 2008 Act (application of compulsory acquisition provisions) to the compulsory acquisition of land under this Order. Acquisition of subsoil only 22 1 The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in paragraph (1) of article 17 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 the undertaker acquires any part of, or rights in, the subsoil of land under paragraph (1), the undertaker is not required to acquire an interest in any other part of the land. 3 Paragraph (2) does not prevent article 23 from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory. 4 Nothing in this article requires the undertaker to acquire any estate, right or interest in any adopted highway. Acquisition of part of certain properties 23 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 the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states 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 is required to 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 may be required to sell only the land subject to the notice to treat is, unless the undertaker agrees to take the land subject to the counter-notice, to 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 where the land subject to the notice to treat consists 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 is required to 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 where the land subject to the notice to treat consists 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 the undertaker is authorised to acquire compulsorily under this Order. 8 If the undertaker 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 the undertaker 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 that that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, 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, the undertaker 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 24 1 The undertaker may enter upon and appropriate so much of the subsoil of, or air space 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), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street. 3 Paragraph (2) does not apply in relation to— a any subway or underground building; or b any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street. 4 Subject to paragraph (5), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 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 (sharing cost of necessary measures) 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 25 1 The undertaker may, in connection with the carrying out of the authorised development— a enter on and take temporary possession of the land specified in columns (1) and (2) of Schedule 6 for the purpose specified in relation to that land in column (3) of that Schedule; b remove any buildings and vegetation from that land; and c construct temporary or permanent works (including the provision of means of access) and buildings on that land. 2 Not less than 14 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land. 3 The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article 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 (2) of Schedule 6 unless and to the extent that it is authorised to do so by the acquisition of rights over land or the creation of new rights over land pursuant to article 20 of this Order. 4 Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to replace a building removed under this article. 5 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 any power conferred by 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 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) 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 The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1) except that the undertaker is not precluded from— a acquiring new rights over any part of that land under article 20; or b acquiring any part of the subsoil (or rights in the subsoil) of that land under article 22. 9 Where the undertaker takes possession of land under this article, the undertaker cannot be 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. Temporary use of land for maintaining authorised development 26 1 Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may— a enter on and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development; 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 the undertaker to take temporary possession of— a any house or garden belonging to a house; or b any building (other than a house) if it is for the time being occupied. 3 Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land. 4 The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken. 5 Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land. 6 The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article. 7 Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act. 8 Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (6). 9 Where the undertaker takes possession of land under this article, the undertaker cannot be 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. 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 27 The undertaker may— a acquire compulsorily the land belonging to statutory undertakers shown on the land plans within the Order limits and described in the book of reference; b extinguish the rights of and remove or reposition apparatus belonging to statutory undertakers in, on or over land shown on the land plans and described in the book of reference; and c acquire compulsorily the new rights over land belonging to statutory undertakers shown on the land plans and described in the book of reference. Railway undertakings 28 1 Subject to the following provisions of this article, the undertaker may not under article 10 break up or open a street where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act)— a is under the control or management of, or is maintainable by, railway undertakers; or b forms part of a level crossing belonging to any such undertakers or to any other person, except with the consent of the undertakers or, as the case may be, of the person to whom the level crossing belongs. 2 Paragraph (1) does not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act. 3 A consent given for the purpose of paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but must not be unreasonably withheld or delayed. Application of landlord and tenant law 29 1 This article applies to— a any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and b any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use. 2 No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies. 3 Accordingly, no such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to— a exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter; b confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or c restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease. Operational land for purposes of the 1990 Act 30 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). Felling or lopping of trees 31 1 The undertaker may fell or lop any tree or shrub near any part of the authorised development, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development. 2 In carrying out any activity authorised by paragraph (1), the undertaker must 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, is to be determined under Part 1 of the 1961 Act. Certification of plans etc. 32 1 The undertaker must, as soon as practicable after the making of this Order, submit to the decision-maker copies of— a the book of reference; b the code of construction practice; c the design and access statement; d the land plans including plan number 3052/SK013 showing areas of land subject to restrictive covenants; e the Residual Waste Acceptance Scheme dated 8 July 2011; f the rights of way plan; g the works plans; h the sections; i the Order limits plan; j the travel plan within the meaning of requirement 39(1), for certification that they are true copies of the plans or 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. Protection of Network Rail Infrastructure Limited 33 Schedule 7 has effect. Arbitration 34 Any difference under any provision of this Order, unless otherwise provided for, is to 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 giving notice in writing to the other) by the decision-maker. Signed by authority of the Infrastructure Planning Commission Paul Hudson, Andrew Phillipson and Emrys Parry Members of the Panel Infrastructure Planning Commission 22nd November 2011