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The A417 Missing Link Development Consent Order 2022

Type Statutory-Instrument

Publication 2022-11-16

State In force

Department King's Printer of Acts of Parliament

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(30) In this Schedule, references to entering on and taking possession of land do not include doing so under article 22 (protective works to buildings), 34 (temporary use of land for carrying out the authorised development) or 35 (temporary use of land for maintaining the authorised development) of the A417 Missing Link Development Consent Order 2022.

Application of the 1981 Act

31

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

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

(3) In section 1 (application of Act), for subsection 2 substitute—

(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.

(4) In section 5[^f00069] (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A[^f00070] (time limit for general vesting declaration).

(6) In section 5B(1)[^f00071] (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118[^f00072] (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the A417 Missing Link Development Consent Order 2022”.

(7) In section 6[^f00073] (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134[^f00074] (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In Schedule A1[^f00075] (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute—

(2) But see article 32(3) (acquisition of subsoil or airspace only) of the A417 Missing Link Development Consent Order 2022, which excludes the acquisition of subsoil or airspace only from this Schedule.

(9) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125[^f00076] (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 30 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil or airspace only

32

(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1) of article 24 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over the land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 30 (modification of Part 1 of the 1965 Act));

(b) Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c) section 153(4A)[^f00077] (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(4) Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Rights under or over streets

33

(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is a statutory undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out the authorised development

34

(1) The undertaker may, in connection with the carrying out of the authorised development, but subject to article 26(2) (time limit for exercise of authority to acquire land compulsorily)—

(a) enter on and take temporary possession of—

(i) the land specified in columns (1) and (2) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and

(ii) any other Order land in respect of which no notice of entry has been served under section 11[^f00078] (powers of entry) of the 1965 Act and no declaration has been made under section 4[^f00079] (execution of declaration) of the 1981 Act (other than in connection with the acquisition of rights only);

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

(d) construct any permanent works specified in relation to that land in column (3) of Schedule 7, or any other mitigation works in connection with the authorised development.

(2) Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).

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

(a) in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (4) of Schedule 7; or

(b) in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by 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 1981 Act in relation to that land.

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

(a) replace a building removed under this article;

(b) restore the land on which any permanent works (including ground strengthening works) have been constructed under paragraph (1)(d); or

(c) remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development.

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of 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 as if it were a dispute under Part 1 of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 152[^f00080] (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not to be precluded from acquiring any part of the subsoil of or airspace over (or rights in the subsoil of or airspace over) that land under article 32 (acquisition of subsoil or airspace only).

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

(10) Section 13[^f00081] (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 compulsory acquisition of land under this Order by virtue of section 125[^f00082] (application of compulsory acquisition provisions) of the 2008 Act.

(11) Paragraph (1)(a)(ii) does not authorise the undertaker to take temporary possession of any land which the undertaker is not authorised to acquire under article 24 (compulsory acquisition of land) or article 27 (compulsory acquisition of rights and restrictive covenants).

Temporary use of land for maintaining the authorised development

35

(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a) enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development;

(b) enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

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

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

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

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

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land explaining the purpose for which entry is to be taken.

(4) The undertaker is not required to serve notice under paragraph (3) where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; or

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such period of notice as is reasonably practicable in the circumstances.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

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

(7) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

(9) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (7).

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

(11) Section 13[^f00083] (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 compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

(12) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.

Statutory undertakers

36

(1) Subject to the provisions of article 27(3) (compulsory acquisition of rights and restrictive covenants), Schedule 8 (protective provisions) and paragraph (2), the undertaker may—

(a) acquire compulsorily, or acquire new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and

(b) extinguish the rights of, or remove or reposition the apparatus belonging to, statutory undertakers over or within the Order land.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

(a) Part 3 of the 1991 Act; and

(b) article 37 (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

37

(1) Where a street is stopped up under article 16 (permanent stopping up and restriction of use of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 16 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or

(b) provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

(a) the execution of the relocation works required in consequence of the stopping up of the street; and

(b) the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

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

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 to be necessary, then, if it involves cost in the execution of the relocation works 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 paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to 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 cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4) must, 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 any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this article—

“relocation works” means work executed, or apparatus provided, under paragraph (2); and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of chapter 1) of the Communications Act 2003[^f00084].

Recovery of costs of new connections

38

(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 36 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 36, any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer; or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 37 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this paragraph—

“public communications provider” has the same meaning as in section 151(1) (interpretation of chapter 1) of the Communications Act 2003; and

“public utility undertaker” means a gas, water, electricity or sewerage undertaker.

Special category land

39

(1) The common land must not vest in the undertaker and the undertaker must not take possession of the common land until the Secretary of State has certified that a satisfactory scheme for the provision of the replacement land and a satisfactory timetable for the implementation of that scheme has been received from the undertaker.

(2) On the requirements of paragraph (1) being satisfied, the undertaker may take possession of the common land in accordance with the scheme.

(3) When the undertaker takes possession of the common land, the common land shall vest in the undertaker and be discharged from all rights, trusts and incidents to which it was previously subject.

(4) On the date on which the replacement land is laid out and provided in accordance with the scheme at paragraph (1), the replacement land is to vest in the person(s) in whom the common land was vested immediately before it was vested in the undertaker and is to be subject to the same rights, trusts and incidents as attached to the common land.

(5) As soon as reasonably practicable after paragraph (4) takes effect, the undertaker must apply under section 14 (statutory dispositions) of the Commons Act 2006[^f00085] and paragraph 8 of Schedule 4 (applications pursuant to section 14: statutory dispositions) to the Commons Registration (England) Regulations 2014[^f00086] to amend the relevant register of common land accordingly.

(6) In this article—

“the common land” means the land numbered 2/13, 2/13a, 3/1n, 3/9b, 3/11b, 3/12, 3/12a, 3/12c, 3/12d and 3/12e in the book of reference and on the land plans and forming part of registered common land which may be acquired compulsorily under this Order;

“the replacement land” means the land identified as such and numbered 2/1n, 2/1q, 2/1r, 3/1p, and 3/1s in the book of reference and on the land plans.

PART 6 — OPERATIONS

Felling or lopping of trees and removal of hedgerows

40

(1) The undertaker may fell or lop any tree or shrub, or cut back its roots, within or overhanging land within the Order limits if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

(b) from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must—

(a) do no unnecessary damage to any tree or shrub;

(b) pay compensation to any person for any loss or damage arising from such activity; and

(c) take steps to avoid a breach of the provisions of the Wildlife and Countryside Act 1981[^f00087] and the Conservation of Habitats and Species Regulations 2017[^f00088] or any successor acts and regulations.

(3) The authority given by paragraph (1) constitutes a deemed consent under a relevant tree preservation order.

(4) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

(5) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits that is required to be removed.

(6) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997[^f00089] and includes important hedgerows.

Removal of human remains

41

(1) In this article “the specified land” means the land within the Order limits.

(2) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Before any such remains are removed from the specified land the undertaker must give notice of the intended removal describing the specified land and stating the general effect of the following provisions of this article by—

(a) publishing a notice for two successive weeks in a newspaper circulating in the area of the authorised development; and

(b) displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a) removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b) removed to, and cremated in, any crematorium,

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question must be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

(a) within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or

(b) such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or

(c) within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or

(d) it is determined that the remains to which any such notice relates cannot be identified,

then subject to paragraph (10) the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves are to be re-interred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a) a certificate of re-interment or cremation is to be sent to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b) a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) must be sent by the undertaker to the relevant planning authority.

(12) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(13) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(14) Section 25 of the Burial Act 1857[^f00090] (offence of removal of body from burial ground) does not apply to a removal carried out in accordance with this article.

PART 7 — MISCELLANEOUS AND GENERAL

Application of landlord and tenant law

42

(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Operational land for purposes of the 1990 Act

43

Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as not being operational land) of the 1990 Act.

Defence to proceedings in respect of statutory nuisance

44

(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990[^f00091] in relation to a nuisance falling within paragraph (d), (fb), (g) or (ga) of section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2)[^f00092] of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974[^f00093]; or

(ii) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or

(iii) is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Protective provisions

45

Schedule 8 (protective provisions) has effect.

Certification of plans etc.

46

(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of each of the plans and documents set out in Schedule 9 (documents to be certified) for certification that they are true copies of the plans and documents referred to in this Order.

(2) A plan or document so certified is admissible in any proceedings as evidence of the contents of the plan or document of which it is a copy.

Service of notices

47

(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post;

(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978[^f00094] as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Arbitration

48

Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

SCHEDULE 1 — AUTHORISED DEVELOPMENT

In the administrative areas of Gloucestershire County Council, Cotswold District Council and Tewkesbury Borough Council.

The authorised development is a nationally significant infrastructure project as defined in sections 14 (nationally significant infrastructure projects: general) and 22 (highways) of the 2008 Act [^f00095] and associated development as defined in section 115(2)[^f00096] (development for which development consent may be granted) of the 2008 Act, comprising—

Work No. 1 – the construction of a new A417 dual carriageway road approximately 5.5 kilometres in length at the location shown on sheets 1, 2, 4, 5 and 6 of the works plans. To include—

(a) the construction of drainage attenuation basin no. 2 with associated drainage facilities, access and landscaping at the location shown on sheet 1 of the works plans;

(b) construction compound no. 1 of approximately 34,660 square metres at the location shown on sheet 1 of the works plans;

(d) the construction of 2 public laybys on the eastbound carriageway of the new A417 and 2 public laybys on the westbound carriageway of the new A417 at the locations shown on sheets 1 and 5 of the works plans;

(e) the construction of drainage culverts at the locations shown on sheets 1, 4 and 5 of the works plans;

(f) the construction of an open channel (Crickley Hill stream) with associated drainage facilities, access and landscaping at the location shown on sheet 1 of the works plans;

(g) the realignment of the existing Dog Lane at the location shown on sheet 1 of the works plans;

(h) the construction of a new connecting bridleway track (Cold Slad bridleway) between Dog Lane and the new Cold Slad Lane connecting road as shown on sheets 1 and 2 of the works plans;

(i) the construction of a bat underpass (Crickley Hill bat underpass) at the location shown on sheet 1 of the works plans;

(j) the construction of drainage attenuation basin no. 3c with associated drainage facilities, access and landscaping at the location shown on sheet 2 of the works plans;

(k) the construction of a new local connecting road (Cold Slad Lane) between the existing U41140 and the new Ullenwood junction as shown on sheet 2 of the works plans;

(l) the provision for a new private means of access at Grove Farm at the location shown on sheet 2 of the works plans;

(m) construction of a new underpass (Grove Farm underpass) at the location shown on sheet 2 of the works plans for the new private means of access at Grove Farm;

(n) the demolition of Woodside House at the location on sheet 2 of the works plans;

(o) the demolition of The Air Balloon Public House at the location shown on sheet 2 of the works plans;

(p) the construction of drainage attenuation basin no. 3a with associated drainage facilities, access and landscaping at the location shown on sheet 2 of the works plans;

(q) construction compound no.2 of approximately 40,840 square metres at the location shown on sheet 2 of the works plans.

(r) the construction of mammal culverts at the locations shown on sheets 4 and 5 of the works plans;

(s) the construction of drainage attenuation basin no. 9 with associated drainage facilities, access and landscaping at the location shown on sheet 5 of the works plans;

(t) the construction of drainage attenuation basin no. 10 with associated drainage facilities, access and landscaping at the location shown on sheet 5 of the works plans;

(u) construction compound no. 3 of approximately 73,250 square metres at the location shown on sheet 6 of the works plans;

(v) the demolition of Crickley Hill Tractors at the location on sheet 2 of the works plans;

(w) the demolition of Pinewood at the location on sheet 2 of the works plans;

(x) the construction of a new access track at the location shown on sheet 1 of the works plans for the new private means of access at Alexander and Angell Ltd’s premises and Flyup 417 Bike Park;

(y) the construction of a new access track at the location shown on sheet 1 of the works plans for the new private means of access for the residential property at Flyup 417 Bike Park.

Work No. 2 – the construction of an overbridge (Cotswold Way Crossing) for walking, cycling and horse riding over the main carriageway of the new A417 at the location shown on sheet 2 of the works plans.

Work No. 3 – works to de-trunk the existing A417 from the existing Air Balloon roundabout to the existing Cowley roundabout at the location shown on sheets 2, 3, 5 and 6 of the works plans. To include—

(a) the partial demolition of the existing A417 carriageway with 3m of road surface retained and the replacement of the demolished section of carriageway with a 2m surface for non-motorised users as shown on sheets 2, 3, and 5 of the works plans and the creation of an access to Crickley Ridge and Emma’s Grove;

(b) creation of an unclassified road to access the new car park from the unclassified road leading to Stockwell Farm as shown on sheet 5 of the works plans;

(d) the narrowing of the carriageway between Cowley roundabout and Stockwell junction as shown on sheets 5 and 6 of the works plans;

(e) the creation of a new car park as shown on sheet 5 of the works plans;

(f) the widening of an existing track connecting Barrow Wake car park to existing A417 and provision of a restricted byway as shown on sheets 2 and 3 of the works plans;

(g) provision of replacement common land as shown on sheets 2 and 3 of the works plans.

Work No. 4 – the realignment of the existing A436 and a new connecting local road (A436 link road) from the Ullenwood junction to Shab Hill junction shown on sheet 2 and sheet 4 of the works plans. To include—

(a) the construction of Ullenwood junction at the location shown on sheet 2 of the works plans;

(b) the demolition of the Air Balloon roundabout at the location shown on sheet 2 of the works plans;

(d) the construction of a new connecting local road (A436 link road) between the new Ullenwood junction and Shab Hill junction shown on sheet 2 and sheet 4 of the work plans;

(e) the realignment of the existing A436 from the new Ullenwood junction at the location shown on sheet 2 of the works plans;

(f) the construction of drainage attenuation basins nos. 5a, 5b and 5c with associated drainage facilities, access and landscaping at the location shown on sheet 2 of the works plans.

Work No. 5 – the construction of a multi-purpose crossing (Gloucestershire Way Crossing) to include essential ecological mitigation and with provision for walking, cycling and horse riding over the main carriageway of the new A417 and the new A436 link road at the location shown on sheet 2 of the works plans.

Work No. 6 – the construction of a connecting local road between Shab Hill junction and B4070 at Birdlip as shown on sheet 3 and 4 of the works plans. To include—

(a) the construction of a new roundabout (Barrow Wake roundabout) at the junction of the unclassified road 47282 at Barrow Wake and the unclassified road 50852 at the location shown on sheet 3 of the works plans;

(b) the length of carriageway (B4070 Birdlip Road) between the new Barrow Wake roundabout to the junction of the B4070 at the location shown on sheet 3 of the works plans;

(c) the construction of a new carriageway (B4070 Barrow Wake Road) between the new Barrow Wake roundabout to the new Shab Hill junction at the location shown on sheet 3 and 4 of the works plans;

(d) the construction of a mammal culvert at the location shown on sheet 4 of the works plans;

(e) the construction of new carriageway (Birdlip Radio Station Lane) northwest of the new Shab Hill roundabout to its junction with the unclassified road U50852 at the location shown on sheet 4 of the works plans;

(f) the construction of a new carriageway (Shab Hill Farm access) south west of the new Shab Hill roundabout to its junction with the unclassified road U50853 at Shab Hill Farm at the location shown on sheet 4 of the works plans.

Work No. 7 – the construction of a new grade separated dumbbell junction at Shab Hill (Shab Hill junction) shown on sheets 2 and 4 of the works plans. To include—

(a) the construction of a new roundabout west of the main carriageway of the new A417 at the location shown on sheet 4 of the works plans;

(b) the construction of a new westbound on-slip to the main carriageway of the new A417, approximately 412 metres in length at the location shown on sheet 2 and 4 of the works plans;

(c) the construction of a new westbound off-slip from the main carriageway of the new A417, approximately 371 metres in length at the location shown on sheet 4 of the works plans;

(d) the construction of drainage attenuation basin no 6 with associated drainage facilities, access and landscaping at the location shown on sheet 4 of the works plans;

(e) construction of a new link road and underbridge to connect the east and west roundabouts, at the location shown on sheet 4 of the works plans;

(f) the construction of a new eastbound off-slip from the main carriageway of the new A417, approximately 426 metres in length at the location shown on sheet 4 of the works plans;

(g) the construction of a new eastbound on-slip to the main carriageway of the new A417, approximately 424 metres in length at the location shown on sheet 4 of the works plans;

(h) the construction of a new roundabout east of the main carriageway of the new A417 at the location shown on sheet 4 of the works plans;

(i) construction of drainage attenuation basin no 7b with associated drainage facilities, access and landscaping at the location shown on sheet 4 of the works plans;

(j) construction of drainage attenuation basin no. 7a with associated drainage facilities, access and landscaping at the location shown on sheet 4 of the works plans;

(k) construction of a new unclassified road (Ullenwood Lane) connecting the eastern roundabout at Shab Hill junction to the unclassified road U50852 at the location shown on sheet 2 and 4 of the works plans;

(l) construction of drainage attenuation basin no 8 with associated drainage facilities, access and landscaping at the location shown on sheet 4 of the works plans;

Work No. 8 – the construction of a new overbridge at Cowley Lane at the location shown on sheet 5 of the works plans. To include—

(a) the construction of a realignment of the Unclassified Road U40859 (known as Cowley Lane) approximately 650 metres in length at the location shown on sheet 5 of the works plans;

(b) the construction of an overbridge at Cowley Lane at the location shown on sheet 5 of the works plans;

(c) The construction of stepped access between the unclassified road and the Cowley Overbridge at the location shown on sheet 5 of the works plans;

(d) The construction of stepped access between the proposed diverted Public Right of Way and the Cowley Overbridge at the location shown on sheet 5 of the works plans.

Work No. 9 – the construction of a new overbridge at Stockwell Farm at the location shown on sheet 5 of the works plans. To include—

(a) the construction of a private means of access to Stockwell Farm at the location shown on sheet 5 of the works plans;

(b) the construction of a new overbridge over the main carriageway of the new A417 at the location shown on sheet 5 of the works plans;

Work No. 10 - the construction of a new at grade junction at Cowley at the location shown on sheet 6 of the works plans. To include—

(a) the construction of a new roundabout connecting westbound slips onto the local network at the location shown on sheet 6 of the works plans;

(b) the construction of a realignment of the existing A417 (Ermine Way) connecting to the new roundabout, approximately 52 metres in length at the location shown on sheet 6 of the works plans;

(c) the construction of a realignment of the existing Climperwell Road connecting to the new roundabout, approximately 163 metres in length at the location shown on sheet 6 of the works plans;

(d) the construction of a westbound merge and diverge connecting roads from the main carriageway of the new A417, approximately 72 metres in length at the location shown on sheet 6 of the works plans;

(e) the construction of drainage attenuation basin no. 11a with associated drainage facilities, access and landscaping at the location shown on sheet 6 of the works plans;

(f) the closure and demolition of the existing Cowley roundabout at the location shown on sheet 6 of the works plans;

(g) the construction of drainage attenuation basin no. 11b with associated drainage facilities, access and landscaping at the location shown on sheet 6 of the works plans;

(h) the construction of drainage attenuation basin no. 11c with associated drainage facilities, access and landscaping at the location shown on sheet 6 of the works plans;

(i) the construction of an eastbound merge and diverge connecting road (Cowley junction loop) from the main carriageway of the new A417, approximately 405 metres in length at the location shown on sheet 6 of the works plans;

(j) the construction of a private means of access and restricted byway to join the stopped-up Cowley Wood Lane at the location shown on sheet 6 of the works plans.

Work No. 11 – the diversion of 223 metres of power cables at the location shown on sheet 1 of the works plans.

Work No. 12 – the diversion of 753 metres of telecoms equipment at the location shown on sheet 1 and 2 of the works plans.

Work No. 13 – the diversion of 624 metres of water pipeline at the location shown on sheets 1 and 2 of the works plans.

Work No. 14 – the diversion of 38 metres of power cables at the location shown on sheet 1 of the works plans.

Work No. 15 – the diversion of 310 metres of power cables at the location shown on sheets 1 and 2 of the works plans.

Work No. 16 – the diversion of 632 metres of power cables at the location shown on sheets 1 and 2 of the works plans.

Work No. 17 – the diversion of 583 metres of telecoms equipment at the location shown on sheet 1 and 2 of the works plans.

Work No. 18 – the diversion of 69 metres of telecoms equipment at the location shown on sheet 2 of the works plans.

Work No. 19 – the diversion of 242 metres of power cables at the location shown on sheet 2 of the works plans.

Work No. 20 – the diversion of 258 metres of power cables at the location shown on sheet 2 of the works plans.

Work No. 21 – the diversion of 47 metres of power cables at the location shown on sheet 2 of the works plans.

Work No. 22 – the diversion of 35 metres of power cables at the location shown on sheet 2 of the works plans

Work No. 23 – the diversion of 2670 metres of telecoms equipment at the location shown on sheets 2, 3 and 4 of the works plans.

Work No. 24 – the diversion of 102 metres of water pipeline at the location shown on sheet 2 of the works plans.

Work No. 25– the diversion of 1169 metres of telecoms equipment at the location shown on sheets 2 and 4 of the works plans.

Work No. 26 – the diversion of 95 metres of telecoms equipment at the location shown on sheet 2 of the works plans.

Work No. 27 – the diversion of 292 metres of telecoms equipment at the location shown on sheet 2 and 4 of the works plans.

Work No. 28 – the diversion of 393 metres of power cables at the location shown on sheets 3 and 4 of the works plans.

Work No. 29 – the diversion of 258 metres of telecoms equipment at the location shown on sheet 4 of the works plans.

Work No. 30 – the diversion of 67 metres of water pipeline at the location shown on sheet 4 of the works plans.

Work No. 31 – the diversion of 142 metres of telecoms equipment at the location shown on sheet 4 of the works plans.

Work No. 32 – the diversion of 383 metres of power cables at the location shown on sheet 5 of the works plans.

Work No. 33 – the diversion of 670 metres of telecoms equipment at the location shown on sheet 5 of the works plans.

Work No. 34 – the diversion of 925 metres of telecoms equipment at the location shown on sheet 6 of the works plans.

Work No. 35 – the diversion of 862 metres of water pipeline at the location shown on sheet 6 of the works plans.

Work No. 36 – the diversion of 311 metres of telecoms equipment at the location shown on sheet 6 of the works plans.

In connection with the construction of any of the above works, further development within the Order limits which does not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement consisting of—

(a) works required for the strengthening, improvement, maintenance or reconstruction of any street;

(b) the strengthening, alteration or demolition of any structure;

(d) embankments, abutments, shafts, foundations, retaining walls, barriers, parapets, drainage, outfalls, ditches, wing walls, highway lighting, fencing and culverts;

(e) works to place, alter, remove or maintain street furniture or apparatus in a street, or apparatus in other land, including mains, sewers, drains, pipes, cables and ducts;

(f) works to alter the course of or otherwise interfere with a watercourse, including private water supplies;

(g) landscaping, noise bunds and barriers, works associated with the provision of ecological mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

(h) works for the benefit or protection of land affected by the authorised development;

(i) site preparation works, site clearance (including fencing, vegetation removal, demolition of existing structures); earthworks (including soil stripping and storage, site levelling); remediation of contamination;

(j) the felling of trees;

(k) working sites, storage areas, temporary vehicle parking, construction fencing, perimeter enclosure, security fencing, construction-related buildings, temporary worker accommodation facilities, welfare facilities, construction lighting, haulage roads and other buildings, machinery, apparatus, works and conveniences; and

(l) the provision of other works including pavement works, kerbing and paved areas works, signing, signals, gantries, road markings works, traffic management measures including temporary roads and such other works as are associated with the construction of the authorised development.

SCHEDULE 2 — REQUIREMENTS

PART 1 — REQUIREMENTS

Interpretation

1

In this Schedule—

“County Archaeologist” means the individual nominated or appointed as such by the relevant planning authority;

“DAMS and OWSI” means the document of that description listed in Schedule 9 (documents to be certified) and certified by the Secretary of State as the Detailed Archaeological Mitigation Strategy and the Overarching Written Schemes of Investigation for the purposes of this Order;

“Design Summary Report” means document of that description listed in Schedule 9 (documents to be certified) and certified by the Secretary of State as the Design Summary Report for the purposes of this Order;

“Ecological Clerk of Works” means the individual appointed as such by the undertaker;

“EMP (construction stage)” means the construction stage environmental management plan to be submitted and approved under requirement 3 of this Schedule;

“EMP (end of construction stage)” means the end of construction stage environmental management plan to be developed towards the end of the construction of the authorised development which is to contain— the environmental information needed for the future maintenance and operation of the authorised development; the long-term commitments to aftercare, monitoring and maintenance activities relating to the environmental features and mitigation measures that will be required to ensure the continued long-term effectiveness of the environmental mitigation measures and the prevention of unexpected environmental impacts during the operation of the authorised development; and a record of the consents, commitments and permissions resulting from liaison with statutory bodies;

“Historic England” means the Historic Buildings and Monuments Commission for England established under the National Heritage Act 1983(b), the functions of which include acting as a statutory consultee and advising the government on the historic environment, including advice to the Department of Digital, Culture, Media and Sport;

“LEMP” means the landscape and ecological management plan;

“Manual of Contract Documents for Highway Works” means the document of that name published electronically by or on behalf of the strategic highway authority for England, or any equivalent replacement published for that document;

“protected species” means species which are subject to protection under the laws of England or which are European protected species;

“structures engineering drawings and sections” means the document of that description listed in Schedule 9 (documents to be certified) and certified by the Secretary of State as the structures engineering drawings and sections for the purposes of this Order.

Time limits

2

The authorised development must not commence later than the expiration of 5 years beginning with the date on which this Order comes into force.

Environmental Management Plan (Construction Stage)

3

(1) No part of the authorised development is to commence until a EMP (construction stage) for that part has been prepared in consultation with the relevant planning authority, the local highway authority and Natural England and submitted to and approved in writing by the Secretary of State.

(2) The EMP (construction stage) must—

(a) be substantially in accordance with the environmental management plan (design stage) certified under article 46 (certification of plans etc.);

(b) contain a record of all the sensitive environmental features that have the potential to be affected by the construction of the authorised development;

(c) incorporate the measures referred to in the environmental statement as being incorporated in the EMP (construction stage);

(d) require adherence to working hours of 07:30 to 18:00 on Mondays to Friday and 08:00 to 13:00 on Saturdays, Sundays and public holidays, except for—

(i) night-time closures for bridge demolition and installation;

(ii) any oversize deliveries or deliveries where daytime working would be excessively disruptive to normal traffic operation;

(iii) junction tie-in works;

(iv) removal of overhead power lines;

(v) overnight traffic management measures;

(vi) cases of emergency;

(vii) any works for which different working hours have been agreed with parties who will or may be affected by those works and recorded in the approved EMP (construction stage), in which case the EMP (construction stage) must require adherence to those working hours; and

(viii) as otherwise agreed by the relevant planning authority in advance;

(e) include the following management plans—

(i) Construction Traffic Management Plan;

(ii) LEMP;

(iii) Materials Management Plan;

(iv) Public Rights of Way Management Plan; and

(v) Ground and Surface Water Management Plan.

(3) The authorised development must be constructed in accordance with the approved EMP (construction stage).

(4) Upon completion of construction of the authorised development the EMP (construction stage) must be converted into the EMP (end of construction stage). The EMP (end of construction phase) must be submitted to the Secretary of State for approval within 28 days of the opening of the authorised development for public use.

(5) The authorised development must be operated and maintained in accordance with the EMP (end of construction stage) approved under sub-paragraph (4).

Details of consultation

4

(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule following consultation with another party, the details submitted must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted and the undertaker’s response to that consultation.

(2) At the time of submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under sub-paragraph 1 to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.

(3) The undertaker must ensure that any consultation responses are reflected in the details submitted to the Secretary of State for approval under this Schedule, but only where it is appropriate, reasonable and feasible to do so, taking into account considerations including, but not limited to, cost and engineering practicality.

(4) Where the consultation responses are not reflected in the details submitted to the Secretary of State for approval, the undertaker must state in the summary report referred to under sub-paragraph (1) the reasons why the consultation responses have not been reflected in the submitted details.

Landscaping

5

(1) No part of the authorised development is to commence until a written landscaping scheme for that part has been submitted to and approved in writing by the Secretary of State following consultation with the relevant planning authority, the local highway authority and Natural England.

(2) No part of the authorised development, including vegetation clearance, is to commence until an arboricultural walkover survey and tree survey for that part, taking due regard to the guidance in British Standard 5837:2012, have been undertaken to identify any significant constraints posed by trees.

(3) The landscaping scheme prepared under sub-paragraph (1) must be based on the environmental masterplan and the results of the surveys undertaken under sub-paragraph (2).

(4) The landscaping scheme prepared under sub-paragraph (1) must include details of hard and soft landscaping works, including—

(a) location, number, species, size and planting density of any proposed planting;

(b) cultivation, importing of materials and other operations to ensure plant establishment;

(d) hard surfacing materials;

(e) details of existing trees to be retained, with measures for their protection during the construction period; and

(f) implementation timetables for all landscaping works.

Implementation and maintenance of landscaping

6

(1) All landscaping works must be carried out in accordance with the landscaping scheme approved under requirement 5.

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