The Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020

Made: 2nd July 2020

Laid before Parliament: 8th July 2020

Coming into force: 23rd September 2020

An application has been made to the Secretary of State in accordance with the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006 for an Order under sections 1 and 5 of the Transport and Works Act 1992 (“the 1992 Act”).

The Secretary of State caused an inquiry to be held for the purposes of the application under section 11 of the 1992 Act.

The Secretary of State, having considered the objections made and not withdrawn and the report of the person who held the inquiry, has determined to make an Order giving effect to the proposals comprised in the application with modifications which in the opinion of the Secretary of State do not make any substantial change in the proposals.

Notice of the Secretary of State's determination was published in the London Gazette on 1st July 2020.

The Order will not come into force until it has been laid before Parliament and has been brought into operation in accordance with the provisions of the Statutory Orders (Special Procedure) Acts 1945 and 1965 .

The Secretary of State, in exercise of the powers conferred by sections 1 and 5 of, and paragraphs 1, 3, 4, 5, 7, 11, 16 and 17 of Schedule 1 to, the 1992 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

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This Order may be cited as the Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020.

Interpretation

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• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961 ;

• “the 1965 Act” means the Compulsory Purchase Act 1965 ;

• “the 1980 Act” means the Highways Act 1980 ;

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981 ;

• “the 1990 Act” means the Town and Country Planning Act 1990 ;

• “the 2005 Order” means the Midland Metro (Wednesbury to Brierley Hill and Miscellaneous Amendments) Order 2005

• “address” includes any number or address used for the purposes of electronic transmission;

• “the authorised works” means the works authorised by the 2005 Order;

• “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;

• “the Canal and River Trust” means the private company limited by guarantee of that name (company number 07807276) whose registered office is at First Floor, North Station House, 500 Elder Gate, Milton Keynes, MK9 1BB;

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form,and in this definition “electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003;.

• “the Executive” means West Midlands Combined Authority established under article 3 (establishment) of the West Midlands Combined Authority Order 2016 ;

• “highway” and “highway authority” have the same meaning as in the 1980 Act;

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

• “maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace and “maintenance” is to be construed accordingly;

• “Network Rail” means Network Rail Infrastructure Limited (company number 02904587) whose registered office is at 1 Eversholt Street, London NW1 2DN and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 256 (associated bodies corporate) of the Companies Act 2006 the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

• “the Order limits” mean the limits so described on the land plans;

• “owner” in relation to land has the same meaning as in section 7 (interpretation) of the 1981 Act ;

• “statutory undertaker” means—any person who is a statutory undertaker for any of the purposes of the 1990 Act; andany public communications provider within the meaning of section 151(1) of the Communications Act 2003 ; and

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

• (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 over its surface.

• (3) All directions, distances, areas, lengths and points stated in any powers or lands are approximate.

PART 2 — ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

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• (1) The Executive may acquire compulsorily so much of the land specified in columns (1) and (2) of Part 1 (acquisition of land) of Schedule 1 (acquisition of land and rights) (being land shown on the land plans and described in the book of reference) as may be required for the purposes specified in relation to that land in column (3) of that table and may use any land so acquired for those purposes or for any other purposes that are ancillary to its tramway undertaking.

• (2) The powers conferred by paragraph (1) in relation to the land numbered 339 on the land plans do not extend to any part of that land below a level of 2.590 metres above the water level of the Dudley Canal No 1.

Application of Part 1 of the 1965 Act

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• (1) Part 1 (compulsory purchase under the Acquisition of Land Act 1946) of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the acquisition of land under this Order—

• (a) as it applies to a compulsory purchase to which the Acquisition of Land Act 1981 applies; and

• (b) as if this Order were a compulsory purchase order under that Act.

• (2) Part 1 of the 1965 Act, as so applied, has effect with the following modifications.

• (3) Omit section 4 (time limit for giving notice to treat).

• (4) In section 4A(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4”, substitute “ section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 11 (time limit for exercise of powers of acquisition) of the Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020 ”.

• (5) In section 11(1B) (powers of entry) in a case where a notice to treat relates only to the acquisition of an easement or other right over land, for “3 months” substitute “ 1 month ”.

• (6) In Section 11A (powers of entry: further notices of entry)—

• (a) in sub-section 1(a), after “land” insert “ under that provision ”,

• (b) in subsection (2), after “land” insert “ under that provision ”.

• (7) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “ article 11 (time limit for exercise of powers of acquisition) of the Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020 ”.

• (8) In Schedule 2A (counter-notice requiring purchase of land not in notice to treat)—

• (a) omit paragraphs 1(2) and 14(2); and

• (b) after paragraph 29 insert—

(30) In this Schedule, references to entering and taking possession of land do not include doing so under article 7 (temporary use of land for construction of works) and article 8 (temporary use of land for maintenance of works) of the Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020.

Application of the 1981 Act

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• (1) The 1981 Act applies as if this Order were a compulsory purchase order.

• (2) The 1981 Act as applied by paragraph (1), has effect with the following modifications.

• (3) In section 5 (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

• (4) Omit section 5A (time limit for general vesting declaration).

• (5) In section 5B (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “ section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 11 (time limit for exercise of powers of acquisition) of the Midland Metro (Wednesbury to Brierley Hill Land Acquisition) Order 2020 ”.

• (6) In section 6 (notices after execution of declaration), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “ section 14A of the Transport and Works Act 1992 ”.

• (7) In section 7 (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”;

• (8) (1) In Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration), omit paragraph 1(2).

• (9) References to the 1965 Act are construed as references to that Act as applied to the acquisition of land by article 4 (application of Part 1 of the 1965 Act).

Power to acquire new rights

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• (1) The Executive may acquire compulsorily such easements or other rights over any land—

• (a) referred to in article 3 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence; or

• (b) within the Order limits specified in columns (1) and (2) of Part 2 (acquisition of rights only) of Schedule 1 (acquisition of land and rights) as may be required for the purposes specified in relation to that land in column (3) of that Part of that Schedule.

• (2) Subject to Schedule 2A (counter-notice requiring purchase of land) to the 1965 Act (as substituted by paragraph 5(8) of Schedule 2 (modification of compensation and compulsory purchasing enactments for creation of new rights) where the Executive acquires a right over land under paragraph (1) the Executive is not required to acquire a greater interest in the land.

• (3) In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, the Executive may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.

• (4) Schedule 2 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 Order of a right over land by the creation of a new right.

Temporary possession of land

Temporary use of land for construction of works

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• (1) The Executive may, in connection with the carrying out of the authorised works—

• (a) enter upon and take temporary possession of—

• (i) any of the land specified in columns (1) and (2) of Schedule 3 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule, and

• (ii) any of the relevant land in respect of which no notice of entry has been served under section 11 (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 (execution of declaration) of the 1981 Act;

• (b) remove any buildings and vegetation from that land;

• (c) construct temporary works (including the provision of means of access) and buildings on the land; and

• (d) construct any permanent works specified in relation to that land in column (3) of Schedule 3 or any mitigation works on that land.

• (2) Not less than 28 days before entering upon and taking temporary possession of land under this article the Executive must serve notice of the intended entry on the owners and occupiers of the land.

• (3) The Executive may not, without the agreement of the owners of the land, remain in possession of any land under this article—

• (a) in the case of any land specified in columns (1) and (2) of Schedule 3 (land of which temporary possession may be taken), after the end of the period of one year beginning with the date of completion of the works specified in relation to that land in column (3) of Schedule 3; or

• (b) in the case of the relevant land, after the end of the period of one year beginning with the date of completion of the works for which temporary possession of the land was taken unless the Executive has, before the end of that period, served a 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.

• (4) Before giving up possession of land of which temporary possession has been taken under this article, the Executive must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the Executive is not required to—

• (a) replace a building removed under this article; or

• (b) restore the land on which any works have been constructed under paragraph (1)(d).

• (5) The Executive 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 powers 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 (determination of questions of disputed compensation) of the 1961 Act.

• (7) Without affecting article 16 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provision as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

• (8) The powers of compulsory acquisition of land conferred by this Order do not apply in relation to the land referred to in paragraph (1)(a) except that the Executive is not precluded from acquiring new rights over any land specified in Part 2 of Schedule 1 (acquisition of rights) under article 6 (power to acquire new rights).

• (9) Where the Executive takes possession of land under this article, it is not required to acquire the land or any interest in it.

• (10) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 4(1) (application of Part 1 of the 1965 Act).

• (11) Paragraph (1)(a)(ii) does not authorise the Executive to take temporary possession of—

• (a) any dwelling house; or

• (b) any building (other than a dwelling house) if it is for the time being occupied.

• (12) In this article “the relevant land” means any land within the Order limits other than the land specified in columns (1) and (2) of Part 2 of Schedule 1 (acquisition of land) or in column (2) of Schedule 3 to this Order.

Temporary use of land for maintenance of works

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• (1) Subject to paragraph (2), at any time during the maintenance period relating to the authorised works, the Executive may—

• (a) enter upon and take temporary possession of any land within the Order limits and lying within 20 metres from those works if such possession is reasonably required for the purpose of maintaining the works or any ancillary works connected with them; and

• (b) construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

• (2) Paragraph (1) does not authorise the Executive to take temporary possession of—

• (a) any house or garden belonging to a house;

• (b) any building (other than a house) if it is for the time being occupied; or

• (c) any land specified in columns (1) and (2) of Part 2 (acquisition of rights only) of Schedule 1 (acquisition of land) (but without affecting the power to acquire rights under article 6(2) (power to acquire new rights) in relation to that land).

• (3) Not less than 28 days before entering upon and taking temporary possession of land under this article the Executive must serve notice of the intended entry on the owners and occupiers of the land.

• (4) The Executive may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance works for which possession of the land was taken.

• (5) Before giving up possession of land of which temporary possession has been taken under this article, the Executive must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

• (6) The Executive 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 powers conferred by this article.

• (7) Any dispute as to a person's entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.