The Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015

Made: 5th February 2015

Coming into force: 26th February 2015

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 117, 120 and 122 of, and paragraphs 1 to 3, 10 to 17, 19, 22, 23, 26, 33, 36 and 37 of Part 1 of Schedule 5 to, the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

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This Order may be cited as the Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015 and comes into force on 26th February 2015.

Interpretation

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• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961[^f00004];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00005];

• “the 1980 Act” means the Highways Act 1980[^f00006];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00007];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00008];

• “the 2008 Act” means the Planning Act 2008;

• “authorised development” means the development and associated development described in Schedule 1 (authorised development) and any other development authorised by this Order, which is development within the meaning of section 32 (meaning of development) of the 2008 Act;

• “the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

• “building” includes any structure or erection or any part of a building, structure or erection;

• “carriageway” has the same meaning as in the 1980 Act;

• “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

• “electronic transmission” means a communication transmitted— by means of an electronic communications network; or by other means but while in electronic form;

• “environmental impact assessment” means the assessment of the environmental impact of the authorised development, the findings of which are recorded in the environmental statement and all other environmental information submitted during the examination;

• “the environmental statement” means the environmental statement submitted under regulation 5(2)(a) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009[^f00009] and 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;

• “the land plan” means the plan certified as the land plan by the Secretary of State for the purposes of this Order;

• “limits of deviation” means the limits of deviation referred to in article 5 (limits of deviation);

• “local planning authority” means the Cornwall Council;

• “maintain” includes inspect, repair, adjust, alter, remove or reconstruct and any derivative of “maintain” is to be construed accordingly;

• “Order land” means the land shown on the land plan which is land or rights to be acquired or used and described in the book of reference;

• “the Order limits” means the limits shown on the works plan within which the authorised development may be carried out;

• “owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981[^f00010];

• “the sections” means the sections identified in the definition of “approved plans” contained in requirement 1(1) (interpretation) and certified as the sections by the Secretary of State for the purposes of this Order;

• “the Special Category Replacement Land plans” means the plans certified as the Special Category Replacement Land plans by the Secretary of State for the purposes of this Order;

• “statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land) of the 2008 Act;

• “street” means a street within the meaning of section 48 (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

• “street plan” means the plan certified as the street plan by the Secretary of State for the purposes of this Order;

• “the tribunal” means the Lands Chamber of the Upper Tribunal;

• “undertaker” means the person who has the benefit of this Order in accordance with articles 6 (benefit of Order) and 7 (consent to transfer benefit of Order);

• “watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

• “the works plan” means the plan identified in the definition of “approved plans” contained in requirement 1(1) and certified as the works plan by the Secretary of State for the purposes of this Order.

• (2) References in this Order to rights over land include references to rights to do or to place and maintain, anything in, on or under land or in the airspace above its surface.

• (3) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

• (4) For the purposes of this Order, all areas described in square metres in the book of reference are approximate.

• (5) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the street plans as the case may be.

• (6) References in this Order to numbered works are references to the works as numbered in Schedule 1 (authorised development).

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

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Subject to the provisions of this Order and to the requirements in Schedule 2 (requirements) the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

Maintenance of authorised development

4

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.

Limits of deviation

5

In carrying out those works numbered 1 to 5 (inclusive) in Schedule 1 (authorised development) the undertaker may—

• (a) deviate laterally from the lines or situations of the authorised development shown on the works plan to the extent of the limits of deviation shown on that plan; and

• (b) deviate vertically from the levels shown on the sections to any extent not exceeding 1 metre upwards or downwards.

Benefit of Order

6

Subject to article 7 (consent to transfer benefit of Order), the provisions of this Order have effect solely for the benefit of the Cornwall Council.

Consent to transfer benefit of Order

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• (1) The undertaker may—

• (a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed 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 and such related statutory rights as may be so agreed.

• (2) Where an agreement 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 a transfer or grant under this article, except where the transfer or grant is made to the Secretary of State.

PART 3 — STREETS

Power to alter layout etc. of streets

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• (1) The undertaker may for the purposes of the authorised development alter the layout of or carry out any works in the streets specified in column (2) of Schedule 3 (streets subject to alteration of layout) in the manner described in relation to that street in column (3).

• (2) Regardless of the specific powers conferred by paragraph (1) but subject to paragraph (3) the undertaker may, for the purposes of constructing and maintaining the authorised development, alter the layout of any street within the Order limits and the layout of any street having a junction with such a street; and, without limitation on the scope of this paragraph, the undertaker may—

• (a) increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street;

• (b) alter the level or increase the width of any such kerb, footway, cycle track or verge;

• (c) reduce the width or the carriageway in the street; and

• (d) make and maintain passing places or lay-bys.

• (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) are not to be exercised without the consent of the street authority; but such consent must not be unreasonably withheld.

• (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 28 days 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

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• (1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 4 (streets subject to street works) as is within the Order limits and may—

• (a) break up or open the street, or any sewer, drain or tunnel under it;

• (b) tunnel or bore under the street;

• (c) place apparatus 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) 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.

Construction and maintenance of new or altered streets

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• (1) Subject to paragraph (2), the streets authorised to be constructed, altered or diverted under this Order are to be public highways and are to be maintained by and at the expense of the highway authority.

• (2) Where a street which is not and is not intended to be a public highway is constructed, altered, or diverted under this Order, the street (or part of the street as the case may be), when completed to the reasonable satisfaction of the street authority, unless otherwise agreed, is to be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

• (3) In any action against the undertaker in respect of damage resulting from its failure to maintain a street to which paragraph (2) applies, section 58 (special defence in action against a highway authority for damages for non-repair of highway)[^f00011] of the 1980 Act applies as if that street were a highway maintainable at the public expense.

Classification of roads

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• (1) From the date on which the undertaker notifies the Secretary of State that the new dual carriageway referred to in Work No. 1 has been completed and open to through traffic—

• (a) the Secretary of State is to be the highway authority for this road; and

• (b) it is classified as a trunk road for the purposes of any enactment or instrument which refers to highways classified as trunk roads.

• (2) From the date on which the undertaker commences the authorised development the section of road denoted D4/1 on the street plan—

• (a) ceases to be part of the A30 trunk road as if it had ceased to be a trunk road by virtue of an order under section 10(2) of the 1980 Act; and

• (b) is classified as part of the U6131 as if such classification had been made under section 12(3) (general provision as to principal and classified roads) of the 1980 Act.

Stopping up of streets

12

• (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 streets specified in columns (1) and (2) of Parts 1, 2, 3 and 4 of Schedule 5 (streets to be stopped up) to the extent specified, by reference to the letters and numbers shown on the works plan, in column (3) of those Parts of that Schedule.

• (2) No street specified in columns (1) and (2) of Parts 1 and 2 of Schedule 5 (being a street or private access to be stopped up for which a substitute is to be provided) is to be wholly or partly stopped up under this article unless—

• (a) the new street to be substituted for it, which is specified in column (4) of those Parts of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

• (b) a temporary alternative route for the passage of such traffic as could have used the street 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 street until the completion and opening of the new street in accordance with sub-paragraph (a).

• (3) No street specified in columns (1) and (2) of Parts 3 and 4 of Schedule 5 (being a street or private access to be stopped up for which no substitute is to be provided) is to be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the land which abuts on either side of the street to be stopped up.

• (4) The condition referred to in paragraph (3) is that—

• (a) the undertaker is in possession of the land; or

• (b) there is no right of access to the land from the street concerned; or

• (c) there is reasonably convenient access to the land otherwise than from the street concerned; or

• (d) the owners and occupiers of the land have agreed to the stopping up.

• (5) Where a street has been stopped up under this article—

• (a) all rights of way over or along the street 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 street as is bounded on both sides by land owned by the undertaker.

• (6) 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.

• (7) This article is subject to article 32 (apparatus and rights of statutory undertakers in stopped-up streets).

Temporary prohibition or restriction of use of streets

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• (1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily alter, divert, prohibit 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 limitation on 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 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.

• (4) The undertaker must not temporarily alter, divert, or prohibit or restrict the use of any street, without the consent of the street authority, which may attach reasonable conditions to any consent, but such consent must not be unreasonably withheld, except that this paragraph does not apply where the undertaker is the street authority.

• (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 of the 1961 Act.

• (6) If, within 28 days of receiving an application for consent under paragraph (4), a street authority fails to notify the undertaker of its decision that street authority is deemed to have granted consent.

Access to works

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The undertaker may, for the purposes of the authorised development—

• (a) form and lay out means of access, or improve existing means of access, in the location specified in columns (1) and (2) of Schedule 6 (access to works); and

• (b) with the approval of the local planning authority after consultation with the highway authority (where the highway authority is not the undertaker), 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

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• (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;