Infrastructure Planning PART 1 Introduction Citation and commencement 1 This Order may be cited as the Meaford Gas Fired Generating Station Order 2016 and comes into force on 2nd August 2016. Interpretation 2 1 In this Order— “ 1961 Act ” means the Land Compensation Act 1961 ; “ 1965 Act ” means the Compulsory Purchase Act 1965 ; “ 1980 Act ” means the Highways Act 1980 ; “ 1981 Act ” means the Compulsory Purchase (Vesting Declarations) Act 1981 ; “ 1984 Act ” means the Road Traffic Regulation Act 1984 ; “ 1990 Act ” means the Town and Country Planning Act 1990 ; “ 1991 Act ” means the New Roads and Street Works Act 1991 ; “2008 Act” means the Planning Act 2008; “access rights of way plan” means the plan identified with document reference number 2.4 and certified as the access rights of way plan by the Secretary of State for the purposes of this Order; “apparatus” has the same meaning as in Part 3 of the 1991 Act; “authorised development” means the development described in Schedule 1 (authorised development) to this Order which is development within the meaning of section 32 of the 2008 Act; “book of reference” means the book of reference with document reference number 4.3 and certified by the Secretary of State as the book of reference for the purposes of this Order; “building” includes any structure or erection or any part of a building, structure or erection; “carriageway” has the same meaning as in the 1980 Act; “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act; “date of final commissioning” means the date on which the authorised development commences operation by generating power on a commercial basis; “design and access statement” means the design and access statement certified as such by the Secretary of State for the purposes of this Order; “environmental statement” means the environmental statement certified as such by the Secretary of State 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 and in respect of the latter, will be Staffordshire County Council unless otherwise stated; “the land plan” means the plan submitted as revision 1 dated September 2015 and certified as the land plan by the Secretary of State for the purposes of this Order; “limits of deviation” means, in respect of numbered works 1 to 7 inclusive the outer limits of the corresponding numbered area shown on the works plans; “maintain” includes inspect, repair, adjust, alter, remove, reconstruct or replace the authorised development, provided such works do not give rise to any materially new or materially different environmental effects to those identified in the Environmental Statement, and any derivative of “maintain” must be construed accordingly; “ Meaford Energy Limited ” means Meaford Energy Limited (Company Registration Number 08575649) whose registered office is at Park Point, 17 High Street, Longbridge, Birmingham B31 2UQ; “ National Grid ” 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 required for, or affected by, the authorised development shown on the land plan and described in the book of reference; “Order limits” means the limits shown on the works plans within which the authorised development may be carried out; “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981 ; “relevant planning authority” means Stafford Borough Council as the planning authority for the area in which the authorised development is situated; “requirements” means those matters set out in Schedule 2 (requirements) to this Order; “ SP Manweb ” means SP Manweb Plc (company number 02366937) whose registered office is at 3 Prenton Way, Prenton CH43 3ET; “statutory undertaker” means any person falling within section 127(8) of the 2008 Act and shall include a public communications provider as defined by 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 “street” includes any 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; “traffic authority” has the same meaning as in the 1984 Act; “undertaker” means Meaford Energy Limited, which is the named undertaker, or any other person who for the time being has the benefit of this Order in accordance with article 7 of this Order; “watercourse” includes all rivers, streams, creeks, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; “works plans” means the plans with document reference number 2.3 and certified as the works plans by the Secretary of State for the purposes of this Order; and “ WPD ” means Western Power Distribution (West Midlands) Plc whose registered office is Avonbank, Feeder Road, Bristol BS2 0TB. 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 references in this Order to the imposition of restrictions are references to restrictions over land which interfere with the interests or rights of another and are for the benefit of land over which rights are created and acquired under this Order. 3 All distances, directions and lengths referred to in this Order are approximate and distances between lines and points on a numbered work comprised in the authorised development and shown on the works plans and access rights of way plan are 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 (authorised development) 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 Schedule 1 and a reference to “Work No. 1” or “numbered work 1” means numbered works 1A to 1E inclusive, a reference to “Work No.2” or “numbered work 2” means numbered works 2A and 2B inclusive and reference to “Work No.5” and “numbered work 5” means numbered works 5A and 5B inclusive. 5 The expression “includes” is to be construed without limitation. 6 All areas described in square metres in the book of reference are approximate. 7 References to any statutory body include that body’s successor bodies as they from time to time have jurisdiction over the authorised development. PART 2 PRINCIPAL POWERS Development consent etc. granted by the Order 3 1 The undertaker is granted development consent for the authorised development, as set out in Schedule 1 (authorised development), subject to the provisions of this Order including the requirements set out in Schedule 2 (requirements). 2 Subject to paragraph (3) , each numbered work must be situated on the corresponding numbered area shown on the works plans. 3 In constructing each numbered work, the undertaker may deviate within the corresponding numbered area shown on the works plans up to the limits of deviation. 4 Development consent is only granted for development within the Order limits. 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, and only to the extent assessed in the environmental statement. 2 This article only authorises the carrying out of maintenance works within the Order limits. Operation of authorised development 5 1 The undertaker is authorised to operate and use 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 under any other legislation that may be required from time to time to authorise the operation of a generating station. Benefit of Order 6 1 Subject to paragraph (2) and article 7 (consent to transfer benefit of Order), the provisions of this Order have effect solely for the benefit of the undertaker. 2 Paragraph (1) does not apply to— a numbered work 2A(i) and numbered work 2A(ii) for which consent is granted by this Order for the benefit of the undertaker and National Grid; and b numbered work 3 for which consent is granted by this Order for the benefit of the undertaker and WPD. Consent to transfer benefit of Order 7 1 Subject to paragraph (4) , the undertaker, and National Grid in relation to numbered work 2A(i) and numbered work 2A(ii) and WPD in relation to numbered work 3, may— a transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order (including any of the numbered works) and such related statutory rights as may be agreed between the undertaker, National Grid or WPD (as the case may be) and the transferee; or b grant to another person (“the lessee”) for a period agreed between the undertaker, National Grid or WPD (as the case may be) and the lessee any or all of the benefit of the provisions of this Order (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 or National Grid or WPD (as the case may be), except in paragraph (3) include references to the transferee or 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, National Grid or WPD (as the case may be). 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 the holder of a licence under section 6 of the Electricity Act 1989 or section 7 of the Gas Act 1986 ; 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 any claim that no compensation shall be payable. 5 Where paragraph (4) applies, the undertaker must notify the Secretary of State in writing before transferring or granting any benefit referred to in paragraph (1). Application and modification of legislative provisions 8 Schedule 3 (modification of compensation and compulsory purchase enactments for creation of new rights) has effect for the purpose of modifying the enactments referred to in that Schedule in their application in relation to the compulsory acquisition under this Order of a right over land by the creation of a new right. 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 persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order is to 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) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974 ; b is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or c the defendant shows that the nuisance 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 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), is not to 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. PART 3 STREETS 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 specified in column (2) of Schedule 4 (streets subject to permanent alteration of layout) in the manner specified in relation to that street in column (3). 2 Regardless of the specific powers conferred by paragraph (1) but subject to paragraphs (3) and (4) , the undertaker may, for the purposes of constructing and maintaining the authorised development alter the layout of any street within the Order limits 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 any passing place. 3 The undertaker must restore any street that has been temporarily altered under this article to the reasonable satisfaction of the street authority. 4 The powers conferred by paragraph (2) must not be exercised without the consent of the street authority. 5 If a street authority which receives an application for consent under paragraph (4) fails to notify the undertaker of its decision before the end of the period of eight weeks beginning with the date on which the application was made, it is deemed to have granted consent. 6 Paragraphs (3) , (4) and (5) do not apply where the undertaker is the street authority for a street in which the works are being carried out. Street works 11 1 The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 5 (streets subject to street works) as is within the Order limits and may — a break up or open the street, or any sewer, drain or tunnel under it; b drill, tunnel or bore under the street; c place and keep apparatus in the street; d maintain apparatus in the street or change its position; and e execute any works required for or incidental to any works referred to in sub-paragraphs (a) , (b) , (c) and (d) . 2 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 Where the undertaker is not the street authority, 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. Temporary prohibition or restriction of use of streets 12 1 The undertaker, during and for the purposes of carrying out the authorised development, may temporarily alter, divert, prohibit the use of or restrict the use of any street and may for any reasonable time— a divert the traffic from the street; and b subject to paragraph (3) , prevent all persons from passing along the street. 2 Without prejudice to the scope of paragraph (1) , the undertaker may use any street where the use has been prohibited or restricted under the powers conferred by this article and within the Order limits as a temporary working site. 3 The undertaker must provide reasonable access for non-motorised users (including pedestrians) going to or from premises abutting a street affected by the temporary alteration, diversion, prohibition or restriction of a street under this article if there would otherwise be no such access, and ensure that relevant provision is made for residents to park and for services to access properties which may be affected by the temporary alteration, diversion, prohibition or restriction of a street under this article. 4 Without prejudice to the generality of paragraph (1) , the undertaker may temporarily alter, divert, prohibit the use of or restrict the use of the streets specified in column (2) of Schedule 6 (temporary prohibition or restriction of the use of streets) to the extent specified in column (3) of that Schedule. 5 The undertaker must not temporarily alter, divert, prohibit the use of or restrict the use of— a any street specified in column (2) of Schedule 6 (temporary prohibition or restriction of the use of streets) without first consulting the street authority; and b any other street without the consent of the street authority which may attach reasonable conditions to any consent. 6 If a street authority fails to notify the undertaker of its decision within eight weeks of receiving an application for consent under paragraph (5)(b) that street authority is deemed to have granted consent. Traffic Regulation 13 1 Without limiting the scope of the specific powers conferred by article 12 but subject to the provisions of this article and the consent of the traffic authority in whose area the road concerned is situated, the undertaker may, in so far as may be expedient or necessary for the purposes of or in connection with construction of the authorised development, at any time prior to when the authorised development first becomes operational— a permit, prohibit or restrict the stopping, parking, waiting, loading or unloading of vehicles on any road; and b make provision as to the direction or priority of vehicular traffic on any road, either at all times or at times, on days or during such periods as may be specified by the undertaker. 2 The undertaker must not exercise the powers in article 12 or paragraph (1) of this article unless it has— a given not less than 4 weeks’ notice in writing of its intention so to do 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 in the case of sub-paragraph (a) . 3 Any prohibition, restriction or other provision made by the undertaker under article 12 or paragraph (1) of this article has effect as if duly made by, as the case may be— a the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act; or b the local authority in whose area the road is situated as an order under section 32 of the 1984 Act, and the instrument by which it is effected 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) . 4 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. 5 If the traffic authority fails to notify the undertaker of its decision within eight weeks of receiving an application for consent under paragraph (1) the traffic authority is deemed to have granted consent. Access to works 14 1 The undertaker may, for the purposes of the authorised development— a form and layout the permanent means of access, or improve existing means of access, in the location specified in Schedule 4 (streets subject to permanent alteration of layout); 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 the 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; b the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order; c the maintenance of the structure of any bridge or tunnel carrying a street; or d any alteration, diversion, prohibition or restriction in the use of a street authorised by this Order. 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. PART 4 SUPPLEMENTAL POWERS Discharge of water 16 1 Subject to paragraphs (2) to (6), 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) must be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (right to communicate with public sewers). 3 The undertaker may 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 may 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 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 any water discharge activities or groundwater activities for which a licence is required pursuant to regulation 12(b) of the Environmental Permitting (England and Wales) Regulations 2010 . 7 In this article— a “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, 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 part of Order land identified in Part I of the book of reference or on any land 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, before or after entering the land, produce written evidence of their authority to do so; and b may take on to the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes. 4 No trial holes 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, but such consent must not be unreasonably withheld. 5 If either the highway authority or street authority which receives an application for consent fails to notify the undertaker of its decision within eight weeks of receiving the application for consent— a under paragraph (4)(a) in the case of the highway authority; or b under paragraph (4)(b) in the case of the street authority, that authority is deemed to have granted consent. 6 The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, in accordance with Part 1 (determination of questions of disputed compensation) of the 1961 Act. PART 5 POWERS OF ACQUISITION Compulsory acquisition of rights 18 1 The undertaker may create and acquire compulsorily the rights over the Order land and impose the restrictions affecting the Order land described in Part 1 of the book of reference and shown on the land plan. 2 Subject to section 8 of the 1965 Act (provisions as to divided land), as substituted by paragraph 5 of Schedule 3 (modification of compensation and compulsory purchase enactments for creation of new rights) to this Order, where the undertaker creates and acquires a right over land or imposes a restriction under paragraph (1) , the undertaker is not required to acquire a greater interest in that land. 3 Schedule 3 (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 or the imposition of a restriction. 4 In any case where the creation and acquisition of rights or the imposition of a restriction under paragraph (1) 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 or impose such restrictions to the statutory undertaker in question. 5 The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (4) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker. Application of the Compulsory Purchase (Vesting Declarations) Act 1981 19 1 The 1981 Act 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 shall be substituted— 1 Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order, the acquiring authority must include the particulars specified in subsection (3) in a notice which is— a given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and b published in a local newspaper circulating in the area in which the land is situated. . 4 In that section, in subsection (2), for “(1)(b)” there is substituted “(1)” and after “given” there is inserted “and published”. 5 In that section, for subsections (5) and (6) there is substituted— 5 For the purposes of this section, a person has a relevant interest in land if— a that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or b that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month. . 6 In section 5 (earliest date for execution of declaration)— a in subsection (1), after “publication” there is inserted “in a local newspaper circulating in the area in which the land is situated”; and b subsection (2) is omitted. 7 In section 7 (constructive notice to treat), in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” are omitted. 8 References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 must be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of rights under this Order. Time limit for exercise of authority to acquire rights compulsorily 20 1 After the end of the period of 5 years beginning on the day on which the Order is made— a no notice to treat may be served under Part 1 of the 1965 Act; and b no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 19 (application of the Compulsory Purchase (Vesting Declarations) Act 1981). 2 The authority conferred by article 25 (temporary use of land for carrying out the authorised development) must cease 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. Statutory authority to override easements and other rights 21 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(1) 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, caused by the carrying out or use of the authorised development 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. 4 Subsection (2) of section 10 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 applies to the construction of paragraph (2) (with any necessary modifications). Acquisition of subsoil or airspace only 22 1 The undertaker may acquire compulsorily such rights in the subsoil of, or the airspace over, the Order land referred to in paragraph (1) of article 18 (compulsory acquisition of rights) as may be required for any purpose for which rights or restrictions over that Order land may be created and acquired or imposed under that provision instead of acquiring any greater interest in that land. 2 Where the undertaker acquires any rights in the subsoil of, or the airspace over, the Order land under paragraph (1) , the undertaker is to not be required to acquire an interest in any other part of the Order land. Private rights 23 1 Subject to the provisions of this article, all private rights and restrictive covenants over land subject to the compulsory creation and acquisition of rights or the imposition of restrictions under this Order are suspended and are unenforceable or, where so notified by the undertaker to the person with the benefit of such private rights or restrictive covenants, extinguished insofar as in either case their continuance would be inconsistent with the exercise by the undertaker of the right acquired or the burden of the restriction imposed— a as from the date of the creation and acquisition of the right or the benefit of the restriction 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 earliest. 2 Subject to the provisions of this article, all private rights and restrictive covenants over the Order land and which is either— a leased by the undertaker pursuant to the lease; or b subject to rights by agreement for the benefit of the undertaker, are suspended and are unenforceable in so far as their continuance would be inconsistent with any activity authorised by this Order. 3 Subject to the provisions of this article, all private rights and restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for so 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. 4 Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenant under this Order is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. 5 This article does not apply in relation to any right to which article 26 (statutory undertakers) applies. 6 Paragraphs (1) , (2) and (4) shall have effect subject to— a any notice given by the undertaker before— i the completion of the creation and acquisition of rights or the imposition of restrictions over or affecting the land; ii the undertaker’s appropriation of it; iii the undertaker’s entry onto it; or iv the undertaker’s temporary possession of it, that any or all of those paragraphs shall not apply to any right specified in the notice; and b any agreement made, in so far it relates to the authorised development, at any time between the undertaker and the person in or to whom the right or restrictive covenant in question is vested, belongs or benefits. 7 If any such agreement as is referred to in paragraph (6)(b) — a is made with a person in or to whom the right or restrictive covenant is vested, belongs or benefits; 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. 8 References in this article to private rights and restrictive covenants over land includes any trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support. 9 In this article— “the lease” means the lease to be entered into by the undertaker pursuant to an option agreement dated 31 March 2015 made between (1) St Modwen Properties I Sarl; and (2) Meaford Land Limited as for a term of no less than seventy five years certain or such other lease as may be entered into from time to time for the benefit of the undertaker to construct, operate and maintain the authorised development. Rights under or over streets 24 1 The undertaker may enter upon and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace 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 the undertaker being required to acquire any part of the street or any easement or right in the street. 3 Paragraph (2) must 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 The undertaker must repair and make good at its own expense and to the reasonable satisfaction of the street authority any damage caused to a street or to any bridge apparatus, highway structure or street furniture in the street belonging to the street authority by virtue of its occupation and appropriation of the subsoil of, or airspace over, the street under this article. 5 Subject to paragraph (6) , 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, shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. 6 Compensation is not payable under paragraph (5) 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 possession of so much of the land specified in columns (1) and (2) of Schedule 9 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; b remove any fences, debris and vegetation from that land; and c construct any works specified in relation to that land in column (3) of Schedule 9, or any other mitigation works. 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 final commissioning of the authorised development 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 Compulsory Purchase (Vesting Declarations) Act 1981 or has otherwise acquired the land subject to temporary possession. 4 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 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. 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 Nothing in this article precludes the undertaker from— a creating and acquiring new rights or imposing restrictions over any part of the Order land identified in part 1 of the book of reference under article 18 (compulsory acquisition of rights); or b acquiring any right in the subsoil or of airspace over any part of the Order land identified in part 1 of the book of reference under article 22 (acquisition of subsoil or airspace only) or article 24 (rights under or over streets). 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 Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 9 (land of which temporary possession may be taken). Statutory Undertakers 26 Subject to the provisions of Schedule 7 (protective provisions), the undertaker may— a extinguish or suspend the rights of, remove or reposition the apparatus belonging to statutory undertakers shown on the land plan and described in the book of reference; and b create and acquire compulsorily the rights or impose restrictions over land belonging to statutory undertakers as shown on the land plan and described in Part 1 of the book of reference. Apparatus and rights of statutory undertakers in streets subject to temporary prohibition or restriction 27 Where a street is temporarily altered or its use is temporarily prohibited or restricted under article 10 (power to alter layout, etc. of streets), article 12 (temporary prohibition or restriction of use of streets) any statutory utility 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 7 (protective provisions), as if this Order had not been made. Recovery of costs of new connection 28 1 Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 26 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is to be 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 26 (statutory undertakers) any person who is— a the owner or occupier of premises the drains of which communicated with the sewer; or b the owner of a private sewer which communicated with that sewer, is to be 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 In this paragraph— “public communication provider” has the same meaning as in section 151(1) of the Communications Act 2003; and “public utility undertaker” has the same meaning as in the 1980 Act. PART 6 MISCELLANEOUS AND GENERAL Felling or lopping of trees 29 1 The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub— a from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or b from constituting a danger to persons using the authorised development. 2 In carrying out any activity authorised by paragraph (1) , the undertaker shall 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, shall be determined under Part 1 of the 1961 Act. Application of landlord and tenant law 30 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 31 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 not being operational land). Protective provisions 32 Schedule 7 (protective provisions) has effect. Certification of plans etc. 33 1 The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of— a the book of reference; b the land plan; c the works plans; d the access rights of way plan; e the environmental statement; f the design and access statement; g the illustrative landscaping plan; h the illustrative foul and surface water drainage plan; and i the illustrative cross sections drawing, for certification that they are true copies of the documents referred to in this Order. 2 A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy. Service of notices 34 1 A notice or other document required or authorised to be served for the purposes of this Order may be served— a by post; b by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or c with the consent of the recipient and subject to paragraphs (6) to (8) by electronic transmission. 2 Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body. 3 For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise— a in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and b in any other case, the last known address of that person at the time of service. 4 Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by— a addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and b either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land. 5 Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement 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 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 part of that notice or other document the sender must provide such a copy as soon as reasonably practicable. 7 Any consent to the use of electronic transmission given by a person may be revoked by that person in accordance with paragraph (8) . 8 Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order— a that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and b such revocation is to be final and is to take 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. 10 In this article— “address” includes any number or address used for the purposes of electronic transmission; “electronic transmission” means a communication transmitted— by means of an electronic communications network, or by other means in electronic form. Procedure in relation to certain approvals 35 1 Where an application is made to or a request is made of the relevant planning authority, traffic authority, highway authority, street authority or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any of the provisions of the Order (not including the requirements), such consent, agreement or approval to be validly given, must be given in writing and must not be unreasonably withheld. 2 Schedule 8 (procedure for discharge of requirements) has effect in relation to all consents, agreements or approvals granted, refused or withheld in relation to the requirements in Schedule 2 (requirements). 3 The procedure set out in paragraph 3 of Schedule 8 (procedure for discharge of requirements) has effect in relation to any other consent, agreement or approval required under this Order. Arbitration 36 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. Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy Giles Scott Head of Energy Infrastructure Planning and Coal Liabilities Department for Business, Energy and Industrial Strategy 19th July 2016