Infrastructure Planning PART 1 PRELIMINARY Citation and commencement 1 This Order may be cited as the Drax Power (Generating Stations) Order 2019 and comes into force on 25th October 2019. 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 2008 Act ” means the Planning Act 2008 ; “ access and rights of way plans ” means the plans of that name identified in the Table 17in Schedule 14 (documents and plans to be certified) and which are certified by the Secretary of State as the access and rights of way plans for the purposes of this Order; “ address ” includes any number or address used for the purposes of electronic transmission; “ AOD ” means above ordnance datum; “ AGL ” means above ground level; “ apparatus ” has the same meaning as in Part 3 of the 1991 Act except that it further includes pipelines (and parts of them), aerial markers, cathodic protection test posts, field boundary markers, transformer rectifier kiosks, electricity cables, telecommunications equipment and electricity cabinets; “ authorised development ” means the development and associated development described in Schedule 1 (authorised development) which is development within the meaning of section 32 of the 2008 Act; “ book of reference ” means the document of that name identified in the table in Schedule 14 and which is 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; “ carbon capture readiness reserve space ” means the area comprised in Work No. 10 shown on the works plans; “ carriageway ” has the same meaning as in the 1980 Act; “ the CHP statement ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the CHP statement for the purposes of this Order; “ commence ” means carry out a material operation, as defined in section 155 of the 2008 Act (which explains when development begins), comprised in or for the purposes of the authorised development other than the permitted preliminary works (except where stated to the contrary) and “commencement”, “commenced” and cognate expressions are to be construed accordingly; “ commissioning ” means the process of assuring that all systems and components of each of numbered works 1A and 2A (which are installed or whose installation is near to completion) are tested to verify that they function and are operable in accordance with the design objectives, specifications and operational requirements of the undertaker and “commission” and other cognate expressions, in relation to numbered works 1A and 2A, are to be construed accordingly; “ compulsory acquisition notice ” means a notice served in accordance with section 134 of the 2008 Act; “ date of Work No. 1A full commissioning ” means the date on which the commissioning of numbered work 1A is completed as notified by the undertaker to the relevant planning authority pursuant to Requirement 4(2) of Schedule 2; “ date of Work No. 2A full commissioning ” means the date on which the commissioning of numbered work 2A is completed as notified by the undertaker to the relevant planning authority pursuant to Requirement 4(3) of Schedule 2; “ design parameters ” means the parameters set out in Schedule 13 (design parameters) “ Drax Power Limited ” means Drax Power Limited (Company Registration Number 04883589) whose registered office is at Drax Power Station, Selby, North Yorkshire YO8 8PH; “ Electricity Acts ” means the Electric Lighting Act 1909 , the Electricity (Supply) Act 1919 and the Electricity Act 1989 ; “ electronic transmission ” means a communication transmitted— by means of an electronic communications network; or by other means but while in electronic form; “ the environmental statement ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the environmental statement for the purposes of this Order; “ the flood risk assessment ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the flood risk assessment for the purposes of this Order; “ footpath ” and “ footway ” have the same meaning as in the 1980 Act; “ highway ” and “ highway authority ” have the same meaning as in the 1980 Act; “ the land plans ” means the plans of that name identified in the table in Schedule 14 and which are certified by the Secretary of State as the land plans for the purposes of this Order; “ limits of deviation ” means the limits of deviation shown for each work number on the works plans; “ maintain ” includes inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part of, but not remove, reconstruct or replace the whole of, the authorised development provided that any such activities do not give rise to any materially new or materially different environmental effects which are worse than those assessed in the environmental statement and “maintenance” and “maintaining” are to be construed accordingly; “ NGET ” means National Grid Electricity Transmission plc (Company Registration Number 02366977) whose registered office is at 1 to 3 Strand, London, WC2N 5EH; “ NGG ” means National Grid Gas plc (Company Registration Number 02006000) whose registered office is at 1 to 3 Strand, London WC2N 5EH; “ Order land ” means the land delineated and marked as such on the land plans; “ Order limits ” means the limits shown on the works plans within which the authorised development may be carried out; “ the outline construction environmental management plan ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction environmental management plan for the purposes of this Order; “ the outline construction traffic management plan ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction traffic management plan for the purposes of this Order; “ the outline construction worker travel plan ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction worker travel plan for the purposes of this Order; “ the outline landscape and biodiversity strategy ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline landscape and biodiversity strategy for the purposes of this Order; “ the outline public right of way management plan ” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline public right of way management plan for the purposes of this Order; “ the outline surface water drainage strategy ” means the outline surface water drainage strategy in section 6.0 of the flood risk assessment; “ owner ”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981 ; “ permitted preliminary works ” means, subject to article 7(2), all or any of— environmental surveys, geotechnical surveys, intrusive archaeological surveys and other investigations for the purpose of assessing ground conditions, demolition of buildings and removal of plant and machinery; above ground site preparation for temporary facilities for the use of contractors; the provision of temporary means of enclosure and site security for construction; the temporary display of site notices or advertisements; or site clearance (including vegetation removal, demolition of existing buildings and structures); “ Planning Acts ” means the Town and Country Planning Act 1947 , the Town and Country Planning Act 1962 , the Town and Country Planning Act 1971 , and the 1990 Act; “ plot ” means the plots listed in the book of reference and shown on the land plans; “ relevant planning authority ” means the district planning authority for the area in which the land to which the provisions of this Order apply is situated; “ Requirements ” means those matters set out in Schedule 2 (Requirements) and “ Requirement ” means any one of the Requirements; “ stage 1 ” means numbered works 1, 3A, 4A, 5, 6, 7, 8A, 9 (only in so far as applicable to numbered work 1), 11 (only in so far as applicable to numbered work 1), 12A, 13 and 14 and as further described in the environmental statement; “ stage 2 ” means numbered works 2, 3B, 4B, 8B, 9 (only in so far as applicable to numbered work 2), 11 (only in so far as applicable to numbered work 2), 12B and as further described in the environmental statement; “ statutory undertaker ” means any person falling within section 127(8) of the 2008 Act and includes a public communications provider defined by section 151(1) of the Communications Act 2003 ; “ 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 any footpath and any part of a street; “ street authority ”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act; “ street works ” means the works listed in article 9(1); “ Upper Tribunal ” means the Lands Chamber of the Upper Tribunal; “ undertaker ” means ... the person who has the benefit of this Order in accordance with article 6; “ watercourse ” includes every river, stream, creek, ditch, drain, canal, cut, culvert, dyke, sluice, sewer and passage through which water flows except a public sewer or drain; “ the works plans ” means the plans of that name identified in the table in Schedule 14 and which are certified by the Secretary of State as the works plans 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 air-space above its surface and to any trusts or incidents (including restrictive covenants) to which the land is subject and references to the creation or acquisition of new rights include the imposition of restrictive covenants which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or over which rights are created and acquired under this Order or is otherwise comprised in this Order. 3 All distances, directions and lengths referred to in this Order are approximate and distances between lines and/or points on a numbered work comprised in the authorised development and shown on the works plans and access rights of way plans are to be taken to be measured along that work. 4 References in this Order to numbered works are references to the works comprising the authorised development as numbered in Schedule 1 and shown on the works plans and a reference in this Order to a work designated by a number, or by a combination of letters and numbers (for example, “Work No. 1A” or “numbered work 1A”), is a reference to the work so designated in that Schedule and a reference to “Work No. 1” or “ numbered work 1 ” means numbered works 1A to 1D inclusive and the same principle applies to such numbered works that contain letters. 5 In this Order, the expression “ includes ” is to be construed without limitation. 6 In this Order, references to any statutory body include that body's successor bodies. 7 All areas described in square metres in the book of reference are approximate. PART 2 PRINCIPAL POWERS 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 Each numbered work maybe situated only within the corresponding numbered area shown on the works plans and within the limits of deviation. Maintenance of authorised development 4 1 The undertaker may at any time maintain the authorised development except to the extent that this Order or an agreement made under this Order provides otherwise. 2 This article authorises the carrying out of maintenance works only within the Order limits. Operation of authorised development 5 1 The undertaker is authorised to use and operate the generating stations comprised in the authorised development. 2 This article does not relieve the undertaker of any other requirement to obtain any permit or licence or any obligation under any legislation that may be required to authorise the operation of a generating station. Benefit of the Order 6 Subject to article 7 (consent to transfer ... benefit of the Order), the provisions of this Order have effect solely for the benefit of Drax Power Limited save for— a Work No. 6A in relation to which the provisions of this Order have effect for the benefit of Drax Power Limited and NGG; and b Work No 8 in relation to which the provisions of this Order have effect for the benefit of Drax Power Limited and NGET. Consent to transfer benefit of the Order 7 1 Subject to paragraph (4), the undertaker may— a transfer to another person (“ the transferee ”) any or all of the benefit of the provisions of this Order which resides for the time being in the undertaker (including any of the numbered works) 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 between the undertaker and the lessee any or all of the benefit of the provisions of this Order which resides for the time being in the undertaker (including any of the numbered works) and such related statutory rights as may be so agreed. 2 Where a transfer or grant has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3), include references to the transferee or the lessee. 3 The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) 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. 4 The consent of the Secretary of State is required for the exercise of the powers of paragraph (1) except where— a the transferee or lessee is— i the holder of a licence under section 6 of the Electricity Act 1989 ; ii in relation only to a transfer or lease of Work No. 6 or Work No. 7, the holder of a licence under section 7 of the Gas Act 1986 ; or iii in relation to a transfer or lease of any works within a highway, a highway authority responsible for the highways within the Order land; or b the time limits for all 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 claims that have been made have all been compromised or withdrawn; iii compensation has been paid in final settlement of all such claims; iv payment of compensation into court in lieu of settlement of all such claims has taken place; or v it has been determined by a tribunal or court of competent jurisdiction in respect of all such claims that no compensation is payable. 5 Where the consent of the Secretary of State is not required under paragraph (4), the undertaker must notify the Secretary of State in writing before transferring or granting a benefit referred to in paragraph (1). 6 The notification referred to in paragraph (5) must state— a the name and contact details of the person to whom the benefit of the powers will be transferred or granted; b subject to paragraph (7), the date on which the transfer will take effect; c the powers to be transferred or granted; d pursuant to paragraph (3), the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted; and e where relevant, a plan showing the works or areas to which the transfer or grant relates. 7 The date specified under paragraph (6)(b) must not be earlier than the expiry of five working days from the date of the receipt of the notice. 8 The notice given under paragraph (6) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice. Application and modification of statutory provisions 8 1 The provisions of the Neighbourhood Planning Act 2017 insofar as they relate to temporary possession of land under articles 28 (temporary use of land for carrying out the authorised development) and 29 (temporary use of land for maintaining the authorised development) do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction, operation or maintenance of any part of the authorised development. 2 As from the date on which the authorised development (including the permitted preliminary works) is commenced any approval, grant, permission, authorisation or agreement made under the Planning Acts or Electricity Acts prior to that date will cease to have effect but only insofar as such approval, grant, permission, authorisation or agreement is inconsistent with the authorised development or anything approved under the Requirements to be carried out within the Order limits. 3 The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction, operation or maintenance of the authorised development— a section 23 (prohibition of obstructions, etc. in watercourses) of the Land Drainage Act 1991 ; and b any byelaws made under section 66 (powers to make byelaws) of the Land Drainage Act 1991. PART 3 STREETS Street works 9 1 The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 3 (streets subject to street works) and may— a break up or open the street, or any sewer, drain or tunnel under it; b drill, tunnel or bore under the street; c place and keep apparatus in the street; d maintain apparatus in the street, change its position or remove it; e construct a bridge over the street; and f execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c), (d) and (e). 2 The authority given by paragraph (1) is a statutory right or licence for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act and section 176 (restrictions on construction of bridges over highways) of the 1980 Act. 3 Where the undertaker is not the street authority, sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1). 4 In this article, “ bridge ” has the same meaning as in section 176(8) of the 1980 Act. Power to alter layout, etc., of streets 10 1 The undertaker may for the purposes of the authorised development alter the layout of or carry out any works in the street— a in the case of permanent works as specified in column (2) of Part 1 of Schedule 4 ( ... permanent alteration of layout) in the manner specified in relation to that street in column (3); and b in the case of temporary works as specified in column (2) of Part 2 of Schedule 4 ( ... temporary alteration of layout) in the manner specified in relation to that street in column (3). 2 Without prejudice to the specific powers conferred by paragraph (1) but subject to paragraphs (3) and (4), the undertaker may, for the purposes of constructing, operating or maintaining the authorised development, alter the layout of any street and, without limitation on the scope of this paragraph, the undertaker may— a alter the level or increase the width of any kerb, footway, cycle track or verge; and b make and maintain passing places. 3 The undertaker must restore any street that has been temporarily altered under this Order to the reasonable satisfaction of the street authority. 4 The powers conferred by paragraph (2) may not be exercised without the consent of the street authority. 5 Paragraphs (3) and (4) do not apply where the undertaker is the street authority for a street in which the works are being carried out. Construction and maintenance of new or altered means of access 11 1 Those parts of each means of access specified in Part 1 of Schedule 5 (those parts of the access to be maintained at the public expense) to be constructed under this Order must be completed to the reasonable satisfaction of the highway authority and, unless otherwise agreed by the highway authority, must be maintained by and at the expense of the undertaker for a period of 12 months from their completion and from the expiry of that period by and at the expense of the highway authority. 2 Those parts of each means of access specified in Part 2 of Schedule 5 (those parts of the access to be maintained by the street authority) to be constructed under this Order and which are not intended to be a public highway must be completed to the reasonable satisfaction of the street authority and must be maintained by and at the expense of the undertaker for a period of 12 months from their completion and from the expiry of that period by and at the expense of the street authority. 3 Those restoration works carried out pursuant to article 10(3) (power to alter layout, etc., of streets) identified in Part 3 of Schedule 5 (those works to restore the temporary accesses which will be maintained by the street authority) which are not intended to be a public highway must be completed to the reasonable satisfaction of the street authority and must be maintained by and at the expense of the street authority. 4 In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic. 5 For the purposes of a defence under paragraph (4), a court must in particular have regard to the following matters— a the character of the street including the traffic which was reasonably to be expected to use it; b the standard of maintenance appropriate for a street of that character and used by such traffic; c the state of repair in which a reasonable person would have expected to find the street; d whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and e where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed, but for the purposes of such a defence it is not relevant that the undertaker had arranged for a competent person to carry out or supervise the maintenance of that part of the street to which the action relates unless it is also proved that the undertaker had given that person proper instructions with regard to the maintenance of the street and that those instructions had been carried out. 6 Nothing in this article— a prejudices the operation of section 87 of the 1991 Act (prospectively maintainable highways) and the undertaker is not by reason of any duty under that section to maintain a street to be taken to be a street authority in relation to that street for the purposes of Part 3 of that Act; or b has effect in relation to street works with regard to which Part 3 of the 1991 Act applies . Temporary stopping up of streets and public rights of way 12 1 The undertaker, during and for the purposes of carrying out and maintaining the authorised development, may temporarily stop up, prohibit the use of, restrict the use of, alter or divert any street or public right of way and may for any reasonable time— a divert the traffic or a class of traffic from the street or public right of way; and b subject to paragraph (2), prevent all persons from passing along the street or public right of way. 2 The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street or public right of way affected by the temporary stopping up, prohibition, restriction, alteration or diversion of a street or public right of way 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, prohibit the use of, restrict the use of, alter or divert— a the streets specified in column (2) of the table in Part 1 of Schedule 6 (streets to be temporarily stopped up) to the extent specified in column (3) of that table; and b the public rights of way specified in column (2) of the table in Part 2 of Schedule 6 (public rights of way to be temporarily stopped up) to the extent specified in column (3) of that table. 4 The undertaker must not temporarily stop up, prohibit the use of, restrict the use of, alter or divert— a any street or public right of way specified in paragraph (3) without first consulting the street authority; and b any other street or public right of way without the consent of the street authority, and the street authority may attach reasonable conditions to any such consent. 5 Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act. 6 Without prejudice to the scope of paragraph (1), the undertaker may use any street or public right of way which has been temporarily stopped up under the powers conferred by this article and within the Order limits as a temporary working site. 7 Without prejudice to the requirements of paragraph (4), the undertaker must not exercise the powers in paragraphs (1) and (3) in relation to a road unless it has— a given not less than 4 weeks' notice in writing of its intention to do so 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 the undertaker's intention under sub-paragraph (a). 8 Any prohibition, restriction or other provision made by the undertaker under paragraph (1) or (3) of this article in relation to a road has effect as if duly made by the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act, and the instrument by which it is effected 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). 9 In this article— a subject to sub-paragraph (b) expressions used in this article and in the 1984 Act have the same meaning; and b a “ road ” means a road that is a public highway maintained by and at the expense of the traffic authority. Permanent stopping up of public rights of way 13 1 Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the public rights of way specified in column (2) of Schedule 7 (public rights of way to be permanently stopped up) to the extent specified, by reference to the letters and numbers shown on the access and rights of way plans, in column (3) of that Schedule. 2 No public right of way specified in columns (2) and (3) of the table in Schedule 7 is to be wholly or partly stopped up under this article unless— a it is necessary for the undertaker to take such action in order to prepare the carbon capture readiness reserve space for the installation and operation of carbon capture equipment; and b either— i the new public right of way to be substituted for it, which is specified in column (4) of that table in Schedule 7, has been completed in accordance with the details approved under Requirement 9 and is open for use; or ii a temporary alternative route for the public who could have used the public right of way to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the public right of way, until the completion and opening of the new public right of way in accordance with sub-paragraph (b) (i) . 3 Where a public right of way has been stopped up under this article— a all rights of way over or along the public right of way so stopped up are extinguished; and b the undertaker may appropriate and use for the purposes of the authorised development so much of the site of the public right of way as is bounded on both sides by land owned by the undertaker. 4 Any person who suffers loss by the suspension or extinguishment 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. Access to works 14 The undertaker may, for the purposes of the authorised development— a form and lay out the permanent means of access, or improve existing means of access, in the locations specified in Part 1 of Schedule 4 ( ... permanent alteration of layout); b form and lay out the temporary means of access in the location specified in Part 2 of Schedule 4 ( ... temporary alteration of layout); and c 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 15 1 A street authority and the undertaker may enter into agreements with respect to— a the construction of any new street including any structure carrying the street over or under any part of the authorised development; b the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order; c the construction and maintenance of the structure of any bridge or tunnel carrying a street (including any footbridge over a street); d any stopping up, prohibition, restriction, alteration or diversion of a street authorised by this Order; e the undertaking in the street of any of the works referred to in article 11(1) (construction and maintenance of new or altered means of access); or f the adoption by a street authority which is the highway authority of works— i undertaken on a street which is existing publicly maintainable highway; or ii which the undertaker and highway authority agree are to be adopted as publicly maintainable highway. 2 If such an agreement provides that the street authority must undertake works on behalf of the undertaker the 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 specify 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 16 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 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 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. 6 This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters requires a licence pursuant to the Environmental Permitting (England and Wales) Regulations 2016 . 7 In this article— a “ public sewer or drain ” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964 (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation; 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. Authority to survey and investigate the land 17 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 or upon which entry is required in order to carry out monitoring or surveys in respect of 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 fourteen 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 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 are to 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. 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. 6 Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession of, land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act. Removal of human remains 18 1 Before the undertaker carries out any development or works which will or may disturb any human remains in the Order land it must remove those human remains from the Order land, or cause them to be removed, in accordance with the following provisions of this article. 2 Before any such remains are removed from the Order land the undertaker must give notice of the intended removal, describing the Order land and stating the general effect of the following provisions of this article, by— a publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised development; and b displaying a notice in a conspicuous place on or near to the Order land. 3 As soon as reasonably practicable after the first publication of a notice under paragraph (2) the undertaker must send a copy of the notice to the relevant planning authority. 4 At any time within fifty-six days after the first publication of a notice under paragraph (2) any person who is a personal representative or relative of any deceased person whose remains are interred in the Order land may give notice in writing to the undertaker of that person's intention to undertake the removal of the remains. 5 Where a person has given notice under paragraph (4), and the remains in question can be identified, that person may cause such remains to be— a removed and re-interred in any burial ground or cemetery in which burials may legally take place; or b removed to, and cremated in, any crematorium, and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (10). 6 If the undertaker is not satisfied that any person giving notice under paragraph (4) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question is to be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who is to remove the remains and as to the payment of the costs of the application. 7 The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article. 8 If— a within the period of fifty-six days referred to in paragraph (4) no notice under that paragraph has been given to the undertaker in respect of any remains in the Order land; or b such notice is given and no application is made under paragraph (6) within fifty-six days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of fifty-six days; or c within fifty-six days after any order is made by the county court under paragraph (6) any person, other than the undertaker, specified in the order fails to remove the remains; or d it is determined that the remains to which any such notice relates cannot be identified, subject to paragraph (10) the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be re-interred in individual containers which must be identifiable by a record prepared with reference to the original position of burial of the remains that they contain. 9 If the undertaker is satisfied that any person giving notice under paragraph (4) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains. 10 On the re-interment or cremation of any remains under this article— a a certificate of re-interment or cremation must be sent by the undertaker to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and b a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (8) must be sent by the undertaker to the relevant planning authority mentioned in paragraph (3). 11 The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State. 12 Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court. 13 Section 25 of the Burial Act 1857 (offence of removal of body from burial ground) is not to apply to a removal carried out in accordance with this article. PART 5 POWERS OF ACQUISITION Compulsory acquisition of land 19 1 The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate it, or is incidental to it, and may use any land so acquired for the purposes authorised by this Order or for any other purposes in connection with or ancillary to the authorised development. 2 As from the date on which a compulsory acquisition notice 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 This article is subject to article 22 (compulsory acquisition of rights etc.), article 25 (acquisition of subsoil only), article 28 (temporary use of land for carrying out the authorised development) and article 30 (statutory undertakers). Statutory authority to override easements and other rights 20 1 The carrying out or use of the authorised development and the doing of anything else authorised by this Order is authorised for the purpose specified in section 158(2) of the 2008 Act (nuisance: statutory authority), 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 use of land arising by virtue of contract. 2 The undertaker must pay compensation to any person whose land is injuriously affected by— a an interference with an interest or right to which this article applies; or b a breach of a restriction as to use of land arising by virtue of contract, authorised by virtue of this Order and the operation of section 158 of the 2008 Act. 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 any restrictions as to the use of land arising by virtue of a contract. 4 Section 10(2) of the 1965 Act applies to paragraph (2) by virtue of section 152(5) of the 2008 Act (compensation in case where no right to claim in nuisance). 5 Any rule or principle applied to the construction of section 10 of the 1965 Act must be applied to the construction of paragraph (2) (with any necessary modifications). Time limit for exercise of authority to acquire land compulsorily 21 1 After the end of the period of five years beginning on the day on which this Order is made— a no notice to treat is to be served under Part 1 of the 1965 Act; and b no declaration is to be executed under section 4 of the 1981 Act (execution of declaration) as applied by article 24 (application of the Compulsory Purchase (Vesting Declarations) Act 1981). 2 The authority conferred by article 28 (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 is to prevent 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 etc. 22 1 Subject to paragraph (2), the undertaker 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 19 (compulsory acquisition of land) by creating new rights as well as by acquiring rights already in existence. 2 In the case of the Order land specified in column (1) of the table in Schedule 8 (land in which only new rights etc. may be acquired) the undertaker may acquire compulsorily the existing rights over land and create and acquire compulsorily the new rights as are specified in column (2) of that table. 3 Subject to section 8 of the 1965 Act (other provisions as to divided land), Schedule 2A to the 1965 Act (counter-notice requiring purchase of land not in notice to treat) as substituted by paragraph 5(8) of Schedule 9 (modification of compensation and compulsory purchase enactments for creation of new rights), and section 12 of the 1981 Act (divided land), where the undertaker creates or acquires a right over land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land. 4 Schedule 9 (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) or (2) is required for the purposes of diverting, replacing or protecting the apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to create and 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 the undertaker. Private rights 23 1 Subject to the provisions of this article, all private rights and restrictions over land subject to compulsory acquisition under this Order are extinguished— a as from the date of acquisition of the land, or of the right, or of the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; b on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry); or c on commencement of any activity authorised by the Order which interferes with or breaches those rights, whichever is the earliest. 2 Subject to the provisions of this article, all private rights and restrictions over land subject to the compulsory acquisition of rights under this Order are suspended and unenforceable or, where so notified by the undertaker, extinguished in so far as in either case their continuance would be inconsistent with the exercise of the right— a as from the date of acquisition of the right by the undertaker, whether compulsorily or by agreement; or b on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry) in pursuance of the right, whichever is the earlier. 3 Subject to the provisions of this article, all private rights and restrictions over land owned by the undertaker within the Order land are extinguished on commencement of any activity authorised by this Order which interferes with or breaches such rights. 4 Subject to the provisions of this article, all private rights or restrictions over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land and so far as their continuance would be inconsistent with the exercise of the temporary possession of that land. 5 Any person who suffers loss by the extinguishment or suspension of any private right or restriction under this Order is entitled to compensation 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 or apparatus to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 30 (statutory undertakers) applies. 7 Paragraphs (1) to (4) have effect subject to— a any notice given by the undertaker before— i the completion of the acquisition of the land, the acquisition of rights over the land or the creation of rights over the land; ii the undertaker's appropriation of it; iii the undertaker's entry onto it; or iv the undertaker's taking temporary possession of it; that any or all of those paragraphs do not apply to any right specified in the notice; or b any agreement made at any time between the undertaker and the person in or to whom the right or restriction 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. Application of the Compulsory Purchase (Vesting Declarations) Act 1981 24 1 The 1981 Act applies as if this Order were a compulsory purchase order. 2 The 1981 Act, as applied by paragraph (1), has effect with the following modifications. 3 In section 1 (application of act) for subsection (2) substitute— 2 This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order. . 4 In section 5(2) (earliest date for execution of declaration), omit the words from “, and this subsection” to the end. 5 Omit section 5A (time limit for general vesting declaration). 6 In section 5B (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute— “ section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), the five year period mentioned in article 21 (time limit for exercise of authority to acquire land compulsorily) of the Drax Power (Generating Stations) Order 2019. ” . 7 In section 6 (notices after execution of declaration) for subsection (1)(b) substitute— b on every other person who has given information to the acquiring authority with respect to any of that land further to the invitation published and served under section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008, 8 In section 7 (constructive notice to treat) in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”. 9 In Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute— 2 But see article 25(3) (acquisition of subsoil only) of the Drax Power (Generating Stations) Order 2019 which excludes the acquisition of subsoil only from this Schedule. . 10 References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act and as modified by article 26 (modification of Part 1 of the Compulsory Purchase Act 1965). Acquisition of subsoil only 25 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 19 (compulsory acquisition of land) and paragraph (1) of article 22 (compulsory acquisition of rights etc.) as may be required for any purpose for which that land or rights over land may be created or acquired under those provisions 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 to be required to acquire an interest in any other part of the land. 3 The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil only— a Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act; b Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and c section 153(4A) (reference of objection to Upper Tribunal: general) of the 1990 Act. 4 Paragraphs (2) and (3) do not apply where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory. Modification of Part 1 of the Compulsory Purchase Act 1965 26 1 Part 1 of the 1965 Act, as applied to this Order by section 125 (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows. 2 In section 4A(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “ section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), the five year period mentioned in article 21 (time limit for exercise of authority to acquire land compulsorily) of the Drax Power (Generating Stations) Order 2019 ” . 3 In section 11A (powers of entry: further notices of entry)— a in subsection (1)(a) after “land” insert “ under that provision ” ; and b in subsection (2) after “land” insert “ under that provision ” . 4 In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “ article 21 (time limit for exercise of authority to acquire land compulsorily) of the Drax Power (Generating Stations) Order 2019 ” . 5 In Schedule 2A (counter-notice requiring purchase of land not in notice to treat)— a for paragraphs 1(2) and 14(2) substitute— 2 But see article 25(3) (acquisition of subsoil only) of the Drax Power (Generating Stations) Order 2019, which excludes the acquisition of subsoil only from this Schedule. ; b after paragraph 29 insert— PART 4 INTERPRETATION 30 In this Schedule, references to entering on and taking possession of land do not include doing so under article 28 (temporary use of land for carrying out the authorised development) or article 29 (temporary use of land for maintaining the authorised development) or article 35 (protective works to buildings) of the Drax Power (Generating Stations) Order 2019. . Rights under or over streets 27 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 in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person's interest in the land, and who suffers loss by the exercise of that power, is to be 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 28 1 The undertaker may, in connection with the carrying out of the authorised development— a enter on and take temporary possession of— i so much of the land specified in column (1) of the table in Schedule 10 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that table; and ii any other Order land in respect of which no notice of entry has been served under section 11 of the 1965 Act (powers of entry) and no declaration has been made under section 4 of the 1981 Act (execution of declaration); b remove any buildings, fences, debris and vegetation from that land; c construct temporary works (including the provision of means of access) and buildings on that land; and d construct any works specified in relation to that land in column (2) of the table in Schedule 10 (land of which temporary possession may be taken), or any mitigation works. 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 fourteen 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 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 Work No. 1A full commissioning; or b in the case of land referred to in paragraph (1)(a)(ii) after the end of the period of one year beginning with the date of Work No. 1A full commissioning unless the undertaker has, before the end of that period, served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to the land or has otherwise acquired the land subject to temporary possession. 5 Unless the undertaker has served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to the land or has otherwise acquired the land subject to temporary possession, the undertaker must, before giving up possession of land of which temporary possession has been taken under this article, 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 or debris removed under this article. 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 any power 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, is to be determined under Part 1 of the 1961 Act. 8 Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5). 9 The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i). 10 Nothing in this article precludes the undertaker from— a creating and acquiring new rights over any part of the Order land identified in Schedule 8 (land in which only new rights etc. may be acquired) under article 22 (compulsory acquisition of rights etc.); or b acquiring any right in the subsoil of any part of the Order land under article 25 (acquisition of subsoil only) or article 27 (rights under or over streets). 11 Where the undertaker takes possession of land under this article, the undertaker is not to be required to acquire the land or any interest in it. 12 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). 13 Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 10 (land of which temporary possession may be taken). Temporary use of land for maintaining the authorised development 29 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 land if such possession is reasonably required for the purpose of maintaining the authorised development; b enter on any land within the Order land for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and c 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 twenty-eight 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 the 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 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 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 is not to 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 (application of compulsory acquisition provisions). 11 In this article “ the maintenance period ” means the period of five years beginning with the date of Work No. 1A full commissioning except in respect of any part of the authorised development which is comprised of landscaping where “ the maintenance period ” means such period as set out in the landscape and biodiversity strategy which is approved by the relevant planning authority pursuant to Requirement 8 beginning with the date on which that part of the landscaping is completed. Statutory undertakers 30 Subject to Schedule 12 (protective provisions), the undertaker may— a acquire compulsorily the land belonging to statutory undertakers within the Order land; b extinguish or suspend the rights of or restrictions for the benefit of, and remove or reposition the apparatus belonging to, statutory undertakers on, under or within the Order land; and c create and acquire compulsorily the new rights over land belonging to statutory undertakers within the Order land. Apparatus and rights of statutory undertakers in streets 31 Where a street is altered or diverted or its use is temporarily prohibited or restricted under article 9 (street works), article 10 (power to alter layout, etc. of streets), article 11 (construction and maintenance of new or altered means of access) or article 12 (temporary stopping up of streets and public rights of way) any statutory undertaker whose apparatus is under, in, on, along or across the street is to have the same powers and rights in respect of that apparatus, subject to Schedule 12 (protective provisions), as if this Order had not been made. Recovery of costs of new connections 32 1 Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 30 (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 the undertaker 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 30 (statutory undertakers), 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 the undertaker 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 This article does not have effect in relation to apparatus to which article 31 (apparatus and rights of statutory undertakers in streets) or Part 3 of the 1991 Act applies. 4 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. Compulsory acquisition of land – incorporation of the mineral code 33 Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981 are incorporated into this Order subject to the modifications that— a paragraph 8(3) is not incorporated; and b for “the acquiring authority” substitute “ the undertaker ” . PART 6 OPERATIONS Felling or lopping of trees and removal of hedgerows 34 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— 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; b from constituting a danger to persons using the authorised development; or c from obstructing or interfering with the passage of construction vehicles to the extent necessary for the purposes of construction of 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. 4 The undertaker may, for the purposes of the authorised development subject to paragraph (2) remove any hedgerows within the Order limits that may be required for the purposes of carrying out the authorised development. 5 The undertaker may not pursuant to paragraph (1) or (4) fell or lop a tree or remove hedgerows within the extent of the publicly maintainable highway without the prior consent of the highway authority. 6 In this article “ hedgerow ” has the same meaning as in the Hedgerows Regulations 1997 . Protective works to buildings 35 1 Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient. 2 Protective works may be carried out— a at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or b after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of five years beginning with— i in respect of stage 1, completion of stage 1; and ii in respect of stage 2, completion of stage 2. 3 For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage. 4 For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))— a enter the building and any land within its curtilage; and b where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it). 5 Before exercising— a a right under paragraph (1) to carry out protective works to a building; b a right under paragraph (3) to enter a building and land within its curtilage; c a right under paragraph (4)(a) to enter a building and land within its curtilage; or d a right under paragraph (4)(b) to enter land, the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than fourteen days' notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out. 6 Where a notice is served under paragraph (5)(a), (5)(c) or (5)(d) the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of ten days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 43 (arbitration). 7 The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights. 8 Where— a protective works are carried out under this article to a building; and b within the period of five years beginning with the date of completion of the part of the authorised development carried out in the vicinity of the building it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development, the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them. 9 Nothing in this article relieves the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act (compensation for injurious affection). 10 Any compensation payable under paragraph (7) or (8) must be determined, in case of dispute, under Part 1 of the 1961 Act. 11 In this article “ protective works ” in relation to a building means— a underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the carrying out, maintenance or use of the authorised development; and b any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development. PART 7 MISCELLANEOUS AND GENERAL Protective provisions 36 Schedule 12 (protective provisions) has effect. Application of landlord and tenant law 37 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 38 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). Defence to proceedings in respect of statutory nuisance 39 1 Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (c), (d), (e), (fb), (g) or (h) of section 79(1) of that Act (statutory nuisances and inspections therefor) no order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance— a 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 sites), or a consent given under section 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974 ; or b is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or c is a consequence of the use of the authorised development and that it cannot reasonably be 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 does 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. Certification of plans etc. 40 1 The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of all documents and plans listed in the table in Schedule 14 (documents and plans to be certified) for certification that they are true copies of the documents referred to in this Order. 2 A plan or document so certified is to be admissible in any proceedings as evidence of the contents of the document of which it is a copy. Service of notices 41 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 (references to service by post) 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 that 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 an 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 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 the 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 is to 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 seven days of receipt that the recipient requires a paper copy of all or any 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 an electronic transmission 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 seven days after the date on which the notice is given. 9 This article does not exclude the employment of any method of service not expressly provided for by it. Procedure in relation to certain approvals etc. 42 1 Where an application is made to or request is made of any authority or body named in any of the provisions of this Order for any consent, agreement or approval required or contemplated by any of the provisions of the Order, such consent, agreement or approval to be validly given, must be given in writing and must not be unreasonably withheld or delayed. 2 Schedule 11 (procedure for discharge) has effect in relation to all consents, agreements or approvals granted, refused or withheld in relation to any provision of this Order. Arbitration 43 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 Secretary of State. Guarantees in respect of payment of compensation 44 1 The undertaker must not exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any land unless it has first put in place either— a a guarantee, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2); or b an alternative form of security, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2). 2 The provisions are— a article 19 (compulsory acquisition of land); b article 22 (compulsory acquisition of rights etc.); c article 23 (private rights); d article 27 (rights under or over streets); e article 28 (temporary use of land for carrying out the authorised development); f article 29 (temporary use of land for maintaining the authorised development); and g article 30 (statutory undertakers). 3 A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the guarantor or person providing the alternative form of security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person. 4 Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised. Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy Gareth Leigh Head of Energy Infrastructure Planning Department for Business, Energy and Industrial Strategy