The M20 Junction 10a Development Consent Order 2017

(1) Parish(es)	(2) Road name, number and length	(3) Measures
Ashford, Sevington	A2070 Bad Munstereifel Road (northbound). From point A to point B on sheets 1 and 3 of the traffic regulation measures plans, for a total distance of 369 metres.	Clearway (to include verges, hard shoulders and slip roads)
Ashford, Sevington	A2070 Bad Munstereifel Road (southbound). From point E to point F on sheets 1 and 3 of the traffic regulation measures plans, for a total distance of 369 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington	A2070 Bad Munstereifel Road (northbound). From point K to point L on sheet 3 of the traffic regulation measures plans, for a total distance of 341 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington	A2070 Bad Munstereifel Road (southbound). From point M to point N on sheet 3 of the traffic regulation measures plans, for a total distance of 333 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington	New A2070 roundabout circulatory carriageway. For the whole length of the circulatory carriageway around the new A2070 roundabout, a length of 200 metres. As shown on sheet 3 of the traffic regulation measures plans.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option A only. New A2070 link road (eastbound). From point H to point G on sheets 2 and 3 of the traffic regulation measures plans, for a total distance of 636 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option A only. New A2070 link road (westbound). From point I to point J on sheets 2 and 3 of the traffic regulation measures plans, for a total distance of 657 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option B only. New A2070 link road (eastbound). From point H to point R on sheet 4 of the traffic regulation measures plans, for a total distance of 288 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option B only. New A2070 link road (eastbound). From point O to point G on sheet 4 of the traffic regulation measures plans, for a total distance of 282 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option B only. New A2070 link road (westbound). From point I to point P on sheet 4 of the traffic regulation measures plans, for a total distance of 302 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option B only. New A2070 link road (westbound). From point Q to point J on sheet 4 of the traffic regulation measures plans, for a total distance of 288 metres.	Clearway (to include verges, hard shoulders and slip roads)
Sevington, Mersham	In the event of construction of the A2070 Option B only. New Stour Park roundabout circulatory carriageway. For the whole length of the circulatory carriageway around the new Stour Park roundabout, a length of 200 metres. As shown on sheet 4 of the traffic regulation measures plans.	Clearway (to include verges, hard shoulders and slip roads)

PART 7 — REVOCATIONS & VARIATIONS OF EXISTING TRAFFIC REGULATION ORDERS

(1) Parish(es)	(2) Road name, number and length	(3) Title of Order	(4) Revocations or Variations
Ashford, Sevington	A2070 Bad Munstereifel Road. From point C to point D on sheets 1 and 3 of the traffic regulation measures plans, a total distance of 748 metres.	The Kent County Council (Various Road, Ashford) (Prohibition of Waiting) (Clearway) Order 1995	Order to be varied to remove the existing clearway over this length.

PART 8 — FOOTPATHS, CYCLE TRACKS AND FOOTWAYS

(1) Area	(2) Length of Footpath/Cycle track/Footway
Ashford Borough	337 metres combined footway and cycle track from point A to point B on the rights of way and access plans.
Ashford Borough	90 metres combined footway and cycle track from point C to point D on the rights of way and access plans.
Ashford Borough	288 metres cycle track with a right of way on foot from point E to point F on the rights of way and access plans.
Ashford Borough	In the event of construction of the A2070 Option A only, 1298 metres combined footway and cycle track from point F to point G on the rights of way and access plans.
Ashford Borough	In the event of construction of the A2070 Option B only, 874 metres combined footway and cycle track from point F to point N on the rights of way and access plans.
Ashford Borough	In the event of construction of the A2070 Option B only, 537 metres combined footway and cycle track from point O to point G on the rights of way and access plans.
Ashford Borough	425 metres cycle track with a right of way on foot from point G to point H on the rights of way and access plans.
Ashford Borough	50 metres footpath from point I to point K on the rights of way and access plans.
Ashford Borough	291 metres cycle track with a right of way on foot from point J to point K on the rights of way and access plans.
Ashford Borough	210 metres combined footway and cycle track from point K to point L on the rights of way and access plans.
Ashford Borough	81 metres combined footway and cycle track from point M to point N on the rights of way and access plans.

SCHEDULE 4 — PERMANENT STOPPING UP OF HIGHWAYS AND PRIVATE MEANS OF ACCESS & PROVISION OF NEW HIGHWAYS AND PRIVATE MEANS OF ACCESS

In relating this Schedule to the rights of way and access plans, the provisions described in this Schedule are shown on the rights of way and access plans in the following manner—

• (a) Existing highways to be stopped up, as described in column (2) of Part 1 and Part 2 of this Schedule, are shown by thick black diagonal hatching (as shown in the key on the rights of way and access plans) over the extent of the area to be stopped up, which is described in column (3) of Part 1 and Part 2 of this Schedule.

• (b) New highways which are to be substituted for a highway to be stopped up (or which are otherwise to be provided), as are included in column (4) of Part 2 of this Schedule, are shown by red cross-hatching (for motorways and trunk roads), blue cross-hatching (for other classified roads and highways) and solid blue shading (for footpaths, footways and cycle tracks) (as shown in the key on the rights of way and access plans) and are given a reference label (a capital letter in a circle) and will be a road unless the word ‘footpath’, ‘bridleway’, ‘footway’ or ‘cycle track’ appears beneath its reference letter in column (4) of Part 2 of this Schedule.

• (c) Private means of access to be stopped up, as described in column (2) of Parts 3 and 4 of this Schedule, are shown by solid black shading (as shown in the key on the rights of way and access plans) over the extent of stopping up described in column (3) of Parts 3 and 4 of this Schedule, and are given a reference label (a lower case letter in a circle).

• (d) New private means of access to be substituted for a private means of access to be stopped up (or which are otherwise to be provided), as are included in column (4) of Part 3 of this Schedule, are shown by black line hatching (as shown in the key on the rights of way and access plans) and are given a reference label (a number in a circle).

PART 1 — HIGHWAYS TO BE STOPPED UP FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

(1) Area	(2) Highway to be stopped up	(3) Extent of stopping up
Mersham	Highfield Lane overbridge	From the junction with Kingsford Street to the junction with the A20 Hythe Road, a distance of 170 metres, shown on sheet 2 of the rights of way and access plans.
Ashford	Public right of way AU63C	From its crossing of the Old Mill Stream to where it meets public right of way AU53, a distance of 177 metres, shown on sheets 1 and 3 of the rights of way and access plans.
Sevington	Public right of way AE337A	From where it crosses the new A2070 link road to where it meets the Old Mill Stream, a distance of 260 metres, shown on sheet 3 of the rights of way and access plans.
Ashford	Public right of way AU65	From its crossing of the Old Mill Stream to where it meets public right of way AU53 to the north, a distance of 172 metres, shown on sheets 1 and 3 of the rights of way and access plans.
Ashford	Public right of way AU53	From where it crosses the Old Mill Stream to where it meets the M20 Junction 10 circulatory carriageway, a distance of 647 metres, shown on sheet 1 of the rights of way and access plans.
Mersham	Public right of way AE636	From where it meets the Old Mill Stream to where it meets Highfield Lane, a distance of 288 metres, shown on sheets 1, 2 and 3 of the rights of way and access plans.
Sevington	Public Right of Way AE338	From where it crosses the new A2070 link road to where it meets the Old Mill Stream, a distance of 120 metres, shown on the rights of way and access plans sheet 3.
Sevington	Public Right of Way AE339	From the Barrey Road/Church Road junction west of the A2070 Bad Munstereifel Road to where it meets Church Road again, east of the A2070 Bad Munstereifel Road, a distance of 184 metres, shown on sheet 3 of the rights of way and access plans.

PART 2 — HIGHWAYS TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED AND NEW HIGHWAYS WHICH ARE OTHERWISE TO BE PROVIDED

(1) Area	(2) Highway to be stopped up	(3) Extent of stopping up	(4) New highway to be substituted/provided
Mersham	A20 Hythe Road	From the junction with Highfield Lane to a point 157 metres west on the existing A20, shown on sheet 2 of the rights of way and access plans.	Reference C Re-aligned A20 Hythe Road west from the M20 Junction 10a circulatory carriageway shown on sheets 1 and 2 of the rights of way and access plans.
Mersham	A20 Hythe Road	From the junction with Highfield Lane to a point 190 metres east on the existing A20, shown on sheet 2 of the rights of way and access plans.	Reference D Re-aligned A20 Hythe Road east from the M20 Junction 10a circulatory carriageway shown on sheets 1 and 2 of the rights of way and access plans.
Ashford	M20 Junction 10 eastbound on slip	From the diverge from the M20 Junction 10 main circulatory carriageway to the merge with the M20 eastbound main carriageway shown on sheet 1 of the rights of way and access plans.	Reference E M20 Junction 10a eastbound on slip shown on sheet 2 of the rights of way and access plans.
Ashford	M20 Junction 10 westbound off slip	From the diverge from the M20 westbound main carriageway to the merge with the M20 Junction 10 circulatory carriageway shown on sheet 1 of the rights of way and access plans.	Reference F M20 Junction 10a westbound off slip shown on sheet 2 of the rights of way and access plans.
Mersham	Kingsford Street and Highfield Lane	From a point on Kingsford Street 100 metres east of the junction with Highfield Lane, west to the junction with Highfield Lane and then south on Highfield Lane for a distance of 46 metres, shown on sheet 2 of the rights of way and access plans.	Reference I Re-aligned Kingsford Street and Highfield Lane shown on sheet 2 of the rights of way and access plans.
Sevington, Mersham	A2070 Bad Munstereifel Road (southbound)	From a point 220 metres south of the M20 Junction 10 circulatory carriageway to a point 68 metres north of the junction with Church Road, a distance of 550 metres, shown on sheet 3 of the rights of way and access plans.	References K, L and M Re-aligned A2070 Bad Munstereifel Road and new A2070 roundabout circulatory carriageway shown on sheet 3 of the rights of way and access plans.
Sevington	A2070 Bad Munstereifel Road (northbound)	From a point 220 metres south of the M20 Junction 10 circulatory carriageway to a point 68 metres north of the junction with Church Road, a distance of 550 metres, shown on sheet 3 of the rights of way and access plans.	References K, L and M Re-aligned A2070 Bad Munstereifel Road and new A2070 roundabout circulatory carriageway shown on sheet 3 of the rights of way and access plans.
Sevington	Church Lane overbridge	From point H to point G on sheet 3 of the rights of way and access plans.	Reference R A length of new cycle track (with a right of way on foot) to be known as the new Church Road footbridge shown on sheet 3 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference A M20 Junction 10a eastbound off slip shown on sheet 1 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference B M20 Junction 10a westbound on slip shown on sheets 1 and 3 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference G New M20 Junction 10a circulatory carriageway shown on sheets 2 and 3 of the rights of way and access plans.
Mersham	-	-	Reference H A length of new cycle track (with a right of way on foot) to be known as the new Kingsford Street footbridge shown on sheet 2 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference J In the event of construction of the A2070 Option A only, a new length of highway from the M20 Junction 10a circulatory carriageway to the new A2070 roundabout shown on the rights of way and access plans sheets 2 and 3.
Sevington	-	-	Reference N In the event of construction of the A2070 Option B only, a new length of highway from the M20 Junction 10a circulatory carriageway to the new Stour Park roundabout circulatory carriageway, shown on sheet 4 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference O In the event of construction of the A2070 Option B only, a new Stour Park roundabout circulatory carriageway, shown on sheet 4 of the rights of way and access plans.
Sevington, Mersham	-	-	Reference P In the event of construction of the A2070 Option B only, a new length of highway from the new Stour Park roundabout circulatory carriageway to the new A2070 roundabout circulatory carriageway, shown on sheet 4 of the rights of way and access plans.

PART 3 — PRIVATE MEANS OF ACCESS TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED AND NEW PRIVATE MEANS OF ACCESS WHICH ARE OTHERWISE TO BE PROVIDED

(1) Area	(2) Private means of access to be stopped up	(3) Extent of stopping up	(4) New private means of access to be substituted or provided
Mersham	-	-	Reference 1 A new private access to pond 3 from a point on the A20 Hythe Road, 60 metres north-west of the merge with the M20 Junction 10A circulatory carriageway, to where it meets pond 3, a distance of 75 metres, as shown on sheets 1 and 2 of the public rights of way and access plans.
Mersham	Reference c Access to field north of the A20 Hythe Road	At a point 60 metres north west of the junction with Highfield Lane as shown on sheet 2 of the rights of way and access plans.	Reference 2 A new private access to field north of the A20 Hythe Road 95 metres from the junction with Highfield Lane as shown on sheet 2 of the rights of way and access plans.
Sevington	Reference f Access to field north of the Old Mill Stream and south of the M20 main carriageway	A length from its junction with the local road that joins Church Road, just north of the Church Road footbridge, to a point 45 metres south of the Old Mill Stream, a distance of 278 metres, as shown on sheet 3 of the rights of way and access plans.	Reference 3 A new private access to pond 2 and field north of the Old Mill Stream, from a point on the southbound carriageway of the A2070, 88 metres north of the A2070 roundabout, to the Old Mill Stream, a distance of 153 metres, as shown on the rights of way and access plans sheet 3.
Sevington	-	-	Reference 4 A new private access to pond 1 from a point on the eastbound carriageway of the new A2070 link road, 370 metres west of the new M20 Junction 10a circulatory carriageway, to where it meets pond 1, a distance of 150 metres, as shown on the rights of way and access plans sheet 3.

PART 4 — PRIVATE MEANS OF ACCESS TO BE STOPPED UP FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

(1) Area	(2) Private means of access to be stopped up	(3) Extent of stopping up
Mersham	Reference a Access to Sweatman Mowers from the A20 Hythe Road	At a point 200 metres north-west of the junction with Highfield Lane as shown on sheet 1 of the rights of way and access plans.
Mersham	Reference b Access to the Wyevale Garden Centre from the A20 Hythe Road	At a point 110 metres north-west of the junction with Highfield Lane as shown on sheets 1 and 2 of the rights of way and access plans.
Mersham	Reference d Access to field north of the A20 Hythe Road	At a point 140 metres south east of the junction with Highfield Lane as shown on sheet 2 of the rights of way and access plans.
Sevington	Reference e Access to field from Kingsford Street	At a point 310 metres south east of the junction with Highfield Lane as shown on sheet 2 of the rights of way and access plans.

SCHEDULE 5 — LAND IN WHICH ONLY NEW RIGHTS ETC. MAY BE ACQUIRED

(1) Plot reference number shown on land plans	(2) Purpose for which rights over land may be acquired	(3) Relevant part of the authorised development
Land Plans – Sheet 2	Land Plans – Sheet 2	Land Plans – Sheet 2
2/3/a	New right to install, operate and maintain lighting columns and cables including access with or without vehicles plant and machinery.	Work No. 16
2/4/b	New right to construct, divert, remove, use and maintain utility connections and equipment including a mains gas pipeline including access with or without vehicles plant and machinery. New right to construct and maintain noise bund No.1.	Work No. 22
Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3
3/14/a	New right to construct, operate and maintain the Church Road overbridge and related works and mitigation measures including access with or without vehicles plant and machinery.	Work No. 8
3/16/d	New right to construct, divert, remove, use and maintain utility connections and equipment including a mains gas pipeline including access with or without vehicles plant and machinery.	Work No. 22
3/16/g	New right to construct, divert, remove, use and maintain utility connections and equipment including a mains gas pipeline including access with or without vehicles plant and machinery.	Work No. 22
Land Plans – Sheet 4	Land Plans – Sheet 4	Land Plans – Sheet 4
4/1/d	New right to construct, use and maintain environmental mitigation measures including access with or without vehicles plant and machinery.	Work Nos. 1-29
4/16/a	New right to construct, use and maintain environmental mitigation measures including access with or without vehicles plant and machinery.	Work Nos. 1-29
4/16/b	New right to construct, use and maintain environmental mitigation measures including access with or without vehicles plant and machinery.	Work Nos. 1-29

SCHEDULE 6 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation for the compulsory purchase of land and interests in land.

2

• (1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).

• (2) For section 5A(5A) (relevant valuation date) date of the 1961 Act substitute—

(5A) If— (a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 6 to the M20 Junction 10a Development Consent Order 2017 (“the 2017 Order”)); (b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 6 to the 2017 Order) to acquire an interest in the land; and (c) the acquiring authority enter on and take possession of that land, the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.

3

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973[^f00068] has effect subject to the modifications set out in sub-paragraph (2).

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—

• (a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and

• (b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.

Application of Part 1 of the 1965 Act

4

Part 1 of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 27 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 21 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 24(1) (compulsory acquisition of rights)—

• (a) with the modification specified in paragraph 5; and

• (b) with such other modifications as may be necessary.

5

• (1) The modification referred to in paragraph 4(a) are as follows.

• (2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—

• (a) the right acquired or to be acquired, or the restriction imposed or to be imposed; or

• (b) the land over which the right is or is to be exercisable, or the restriction is or is to be enforceable.

• (3) For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—

(7) In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

• (4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

• (d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

• (5) Section 11[^f00069] (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restriction, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 21), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A[^f00070] (powers of entry: further notices of entry), 11B[^f00071] (counter-notice requiring possession to be taken on specified date, 12[^f00072] (unauthorised entry) and 13[^f00073] (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

• (6) Section 20[^f00074] (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

• (7) Section 22 (interests omitted from purchase) of the 1965 Act is modified by article 27(4) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

• (8) For Schedule 2A of the 1965 Act substitute—

SCHEDULE2A (1) (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 28 (application of the 1981 Act) of the M20 Junction 10a Development Consent Order 2017 in respect of the land to which the notice to treat relates. (2) But see article 29(3) (acquisition of subsoil or airspace only) of the M20 Junction 10a Development Consent Order 2017 which excludes the acquisition of subsoil or airspace only from this Schedule. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decide to refer the counter-notice to the Upper Tribunal it must do so within the decision period. (8) If the authority do not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making the determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant, (b) the use to be made of the right or covenant proposed to be acquired or imposed, and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take. (13) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawing of the notice. (15) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 7 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Location	(2) Plot Reference Number shown on land plans	(3) Purpose for which temporary possession may be taken	(4) Relevant part of the authorised development
Land Plans - Sheet 1	Land Plans - Sheet 1	Land Plans - Sheet 1	Land Plans - Sheet 1
Ashford	1/1/a	Upgrading existing road markings, traffic signals and signs.	Work No. 7
Ashford	1/1/b	Upgrading existing road markings, traffic signals and signs.	Work No. 7
Land Plans - Sheet 2	Land Plans - Sheet 2	Land Plans - Sheet 2	Land Plans - Sheet 2
Ashford	2/1/c	Upgrading existing road markings, traffic signals and signs.	Work No. 7
Ashford	2/1/d	Upgrading existing road markings, traffic signals and signs.	Work No. 7
Ashford	2/1/e	Upgrading existing road markings, traffic signals and signs.	Work No. 7
Ashford	2/1/g	The strengthening of the existing Swatfield Bridge on the A20 Hythe Road. Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment, water pipeline and power cables.	Work Nos. 11, 16, 24, 25, 26, 27 and 28
Ashford	2/2/a	Use as a site compound area.	Work Nos. 1-29
Ashford	2/5/a	Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment and water pipeline.	Work Nos. 16, 24, 25
Ashford	2/5/aa	Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment and water pipeline.	Work Nos. 16, 24 and 25
Ashford	2/6/a	Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment and water pipeline.	Work Nos. 16, 24, 25
Ashford	2/6/aa	Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment and water pipeline.	Work Nos. 16, 24 and 25
Ashford	2/8/aa	Upgrading existing lighting and installing new lighting. Diversion works to telecoms equipment, water pipeline and power cables.	Work Nos. 16, 24, 25, 26, 27 and 28
Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3
Ashford	3/14/c	Traffic sign amendments.	Work No. 9
Ashford	3/16/c	Use as a site compound area.	Work Nos. 1-29
Land Plans – Sheet 4	Land Plans – Sheet 4	Land Plans – Sheet 4	Land Plans – Sheet 4
Mersham	4/1/b	Realignment of the A20 Hythe Road. Diversion works to telecoms equipment, water pipeline and power cables.	Work Nos. 17, 25, 26, 27 and 28
Mersham	4/1/bb	Re-alignment of the A20 Hythe Road.	Work No. 17
Mersham	4/1/g	Alteration work to the existing Kingsford Street. Diversion works to telecoms equipment and power cables.	Work Nos. 5, 24 and 28
Mersham	4/1/h	Alteration work to the existing A20 and installation of new traffic signs.	Work No. 17

SCHEDULE 8 — TREES SUBJECT TO TREE PRESERVATION ORDERS

(1) Type of tree	(2) Work to be carried out	(3) Relevant part of the authorised development
TPO No. 15 1997 (Ashford Borough Council) TPO group containing field maple (Acer campestre), hazel (Corylus avellana) and Italian alder (Alnus cordata).	Tree group to be removed to enable works	Work Nos. 9, 20
TPO No. 22 1998 (Ashford Borough Council) Woodland area, alder (Alnus glutinosa), sycamore (Acer pseudoplatanus), ash (Fraxinus excelsior) with occasional mature willow (Salix spp.), poplar (Populus tremula). Elder (Sambuca) understory. Corner bordering Pilgrims’ Hospice is subject to a TPO.	Localised disturbance to tree roots or removal of individual trees adjacent to the Swatfield Bridge, to enable strengthening and level adjustment works to be carried out.	Work Nos. 11, 16

SCHEDULE 9 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

1

For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

2

In this Part of this Schedule—

• “alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

• “apparatus” means—in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00075], belonging to or maintained by that utility undertaker;in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00076] for the purposes of gas supply;in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; andin the case of a sewerage undertaker—any drain or works vested in the utility undertaker under the Water Industry Act 1991[^f00077]; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewers, drains or sewage disposal works at future date) of that Act[^f00078],and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

• “in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land;

• “plan” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed; and

• “utility undertaker” means—any licence holder within the meaning of Part 1 of the Electricity Act 1989;a gas transporter within the meaning of Part 1 of the Gas Act 1986;a water undertaker within the meaning of the Water Industry Act 1991; anda sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,

for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

On street apparatus

3

This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus in stopped up streets

4

• (1) Where any street is stopped up under article 15 (permanent stopping up and restriction of use of streets and private means of access), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

• (2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 14 (temporary stopping up and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5

The undertaker, in the case of the powers conferred by article 19 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6

Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

7

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (7).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 46 (arbitration).

• (5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 46 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

• (7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

8

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 46 (arbitration).

• (2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

9

• (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.

• (2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.

• (3) Any requirements made by a utility undertaker under sub-paragraph (2) are to be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

• (4) If a utility undertaker, in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

• (5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

• (6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

• (7) In relation to works which will or may be situated on, over, under or within 10 metres measured in any direction of any electricity apparatus, or involve embankment works within 10 metres of any electricity apparatus, the plan to be submitted to the utility undertaker under sub-paragraph (1) must be detailed, include a method statement and describe—

• (a) the exact position of the works;

• (b) the level at which they are proposed to be constructed or renewed;

• (c) the manner of their construction or renewal;

• (d) the position of all electricity apparatus; and

• (e) by way of detailed drawings, every alteration proposed to be made to such apparatus.

Expenses and costs

10

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2).

• (2) The value of any apparatus removed under the provisions of this Part of this Schedule must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.

• (3) If in accordance with the provisions of this Part of this Schedule—

• (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 46 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

• (4) For the purposes of sub-paragraph (3)—

• (a) an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

• (b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.

• (5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1), if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.

11

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 or 7(2) any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

• (a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and

• (b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,

by reason or in consequence of any such damage or interruption.

• (2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

• (3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.

• (4) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker and, if such consent is withheld, has the sole conduct of any settlement or compromise of any proceedings necessary to resist the claim or demand.

Cooperation

12

Where in consequence of the proposed construction of any part of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co- operate with the undertaker for that purpose.

13

Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 2 — FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

14

For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.

15

In this Part of this Schedule—

• “the 2003 Act” means the Communications Act 2003[^f00079];

• “conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system are to be construed in accordance with paragraph 1(3A)[^f00080] (interpretation of code) of that code;

• “electronic communications apparatus” has the same meaning as in the electronic communications code;

• “the electronic communications code” has the same meaning as in Chapter 1 (electronic communications, networks and services) of Part 2 of the 2003 Act[^f00081];

• “electronic communications code network” means— so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; and an electronic communications network which the undertaker is providing or proposing to provide;

• “electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

• “operator” means the operator of an electronic communications code network.

16

The exercise of the powers conferred by article 33 (statutory undertakers) is subject to paragraph 23 of Schedule 2 (undertaker’s works) to the Telecommunication Act 1984[^f00082].

17

• (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from the authorised development—

• (a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development), or other property of an operator; or

• (b) there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

• (2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

• (3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

• (4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 46 (arbitration).

• (5) This Part of this Schedule does not apply to—

• (a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

• (b) any damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.

• (6) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 3 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

18

The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

19

In this Part of this Schedule—

• “the Agency” means the Environment Agency;

• “construction” includes placing, altering, replacing, relaying, removing and excavation and “construct” and “constructed” are to be construed accordingly;

• “drainage work” means any main river and includes any land which provides or is expected to provide flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence or tidal monitoring and any ancillary works constructed as a consequence of works carried out for drainage purposes;

• “fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

• “main river” means all watercourses shown as such on the statutory main river maps held by the Agency and the Department for Environment Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;

• “plans” includes sections, drawings, specifications calculations and method statements;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 8 metres of a drainage work or is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse or other surface waters or ground water; cause obstruction to the free passage of fish or damage to any fishery; affect the conservation, distribution or use of water resources; or affect the conservation value of the main river and habitats in its immediate vicinity;

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

20

• (1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably request.

• (2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 29.

• (3) Any approval of the Agency required under this paragraph—

• (a) must not be unreasonably withheld or delayed;

• (b) is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

• (c) may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work, fishery or water resources or for the prevention of flooding or pollution or in the discharge of its environmental duties.

• (4) Any requirement made by the Agency under sub-paragraph (3)(c) may include—

• (a) a requirement for the undertaker to carry out monitoring during the implementation of any de-watering scheme approved by the Agency under this paragraph and to supply data arising from that monitoring to the Agency; and

• (b) a requirement for the undertaker not to prevent or materially restrict the Agency’s use of any access route during construction of the specified work or, where that is not possible owing to the nature of the work, a requirement for the undertaker to provide for use by the Agency during construction of the specified work a reasonably suitable alternative to the access route.

• (5) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

21

Without limitation on the scope of paragraph 20, but subject always to the provisions of that paragraph as to reasonableness, the requirements which the Agency may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

• (a) to safeguard any drainage work against damage; or

• (b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

22

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 21, must be constructed—

• (a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and

• (b) to the reasonable satisfaction of the Agency,

and the Agency is entitled by its officer to watch and inspect the construction of such works.

• (2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

• (3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work.

• (4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

• (5) Subject to sub-paragraph (6) if, within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure reasonably incurred by the Agency in so doing is recoverable from the undertaker.

• (6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in the case of an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 29.

23

• (1) Subject to sub-paragraph (6), the undertaker must from the commencement of the construction of a specified work until the date falling 12 months from the date of completion of such specified work (“the maintenance period”), maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence. Upon the expiry of the maintenance period, the drainage work must be maintained by the highway authority of the highway to which the specified work relates.

• (2) If any such drainage work is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the person liable for maintenance to repair and restore the work, or any part of such work, or (if the person liable for maintenance so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

• (3) Subject to sub-paragraph (5), if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the person liable for maintenance, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any expenditure reasonably incurred by the Agency in so doing shall be recoverable from that person.

• (4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with these protective provisions the Agency may serve written notice requiring the undertaker to cease all or part of the specified works and the undertaker must cease the specified works or part of them until it has obtained the consent or complied with the condition unless the cessation of the specified works or part of them would cause greater damage than compliance with the written notice.

• (5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not except in the case of an emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 29.

• (6) This paragraph does not apply to—

• (a) drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of this Order from doing so; and

• (b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.

24

If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure reasonably incurred by the Agency in doing so from the undertaker.

25

If by reason of construction of a specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the Agency to access the flood defence or equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction.

26

• (1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in a fishery during the construction of any specified work.

• (2) If by reason of—

• (a) the construction of any specified work; or

• (b) the failure of any such work,

damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

• (3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are required under sub-paragraph (2), the Agency may take those steps and any expenditure reasonably incurred by the Agency in so doing shall be recoverable from the undertaker.

27

• (1) The undertaker must repay to the Agency all costs, charges, expenses, damages and losses not otherwise provided for in this Part of this Schedule which may be reasonably incurred or suffered by the Agency by reason of—

• (a) the examination or approval of plans under this Part of this Schedule;

• (b) the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule;

• (c) the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works; or

• (d) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised development or dealing with any failure of the authorised development.

• (2) The fact that any act or thing may have been done—

• (a) by the Agency on behalf of the undertaker; or