The A303 (Amesbury to Berwick Down) Development Consent Order 2023

Made: 14th July 2023

Coming into force: 4th August 2023

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 117, 120, 122 and 123 of, and paragraphs 1 to 4, 10 to 17, 19 to 23, 26, 33, 36 and 37 of Part 1 of Schedule 5 to, the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the A303 (Amesbury to Berwick Down) Development Consent Order 2023 and comes into force on 4th August 2023.

Interpretation

2

• (1) In this Order—

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

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

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

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00007];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00008];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00009];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00010];

• “the 2008 Act” means the Planning Act 2008[^f00011];

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

• “affected person” has the same meaning as in section 59[^f00012] (notice of persons interested in land which compulsory acquisition request relates) the 2008 Act;

• “apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

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

• “authorised person” means— a person acting in the course of that person’s duties who— is an employee, agent, contractor or sub-contractor of the undertaker; or is authorised by the undertaker to exercise one or more of its functions under this Order; or a constable, Police Community Support Officer, an officer of the Driver and Vehicle Standards Agency, an officer of the Health and Safety Executive, a person authorised for the purposes of section 44 (powers of fire-fighters etc. in an emergency etc.) of the Fire and Rescue Services Act 2004[^f00013], a person accredited by or under section 41 (accreditation under community safety accreditation schemes) of the Police Reform Act 2002[^f00014], a traffic officer, acting in the execution of that person’s duties within the tunnel;

• “book of reference” means the document listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the book of reference for the purposes of this Order;

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

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

• “byway open to all traffic” has the same meaning as in section 66(1) (interpretation of Part 3) of the Wildlife and Countryside Act 1981[^f00015];

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

• “classification of roads plan” means the plan listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the classification of roads plan for the purposes of this Order;

• “commence” means beginning to carry out any material operation (as defined in section 56(4)[^f00016] (time when development begun) of the 1990 Act) forming part of the authorised development other than operations consisting of archaeological investigations and mitigation works, ecological surveys and mitigation works, investigations for the purpose of assessing and monitoring ground conditions and levels, remedial work in respect of any contamination or other adverse ground conditions, erection of any temporary means of enclosure, receipt of construction plant and equipment, erection of construction plant and equipment for the preliminary works, diversion and laying of underground apparatus and site clearance, and the temporary display of site notices or information, and “commencement” is to be construed accordingly;

• “construct” includes execute, place, alter, replace, relay and remove and “construction” is to be construed accordingly;

• “Convention” means the Convention Concerning the Protection of the World Cultural and Natural Heritage 1972[^f00017], which was ratified by the United Kingdom as a State Party on 29 May 1984;

• “cycleway” means a way constituting or comprised in a highway, being a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988[^f00018]) with a right of way on foot and a right of way on horseback or leading a horse;

• “Crown land plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the Crown land plans for the purposes of this Order;

• “de-trunking plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the de-trunking plans for the purposes of this Order;

• “ecological mitigation works” include bat roost and badger sett closures and provision of hibernacula;

• “electronic transmission” means a communication transmitted— by means of an electronic communications network; or by 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[^f00019];

• “engineering section drawings (cross sections)” means the drawings listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the engineering section drawings (cross sections) for the purposes of this Order;

• “engineering section drawings (plan and profiles)” means the drawings listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the engineering section drawings (plan and profiles) for the purposes of this Order;

• “environmental statement” means the document listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the environmental statement for the purposes of this Order;

• “Esso” means Esso Petroleum Company, Limited (company number 00026538) whose registered office is at Ermyn House, Ermyn Way, Leatherhead, Surrey, KT22 8UX, and any successor in title;

• “flood risk activity” has the same meaning as in regulation 2 (interpretation: general) of the Environmental Permitting (England and Wales) Regulations 2016[^f00020];

• “footpath” and “footway” have the same meaning as in the 1980 Act;

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

• “Historic England” means the Historic Buildings and Monuments Commission for England established under the National Heritage Act 1983[^f00021], the functions of which include acting as a statutory consultee and advising the government on the historic environment, including advice to the Department for Digital, Culture, Media and Sport which acts on behalf of government as state party to the Convention;

• “land plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the land plans for the purposes of this Order;

• “limits of deviation” means the limits of deviation referred to in article 7 (limits of deviation);

• “maintain” includes inspect (including recording the results of the inspection), repair, adjust, alter, remove or reconstruct, provided such works do not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement, and any derivative of “maintain” is to be construed accordingly;

• “Order land” means the land shown coloured pink, the land shown hatched pink, the land shown coloured blue and the land shown coloured grey on the land plans, and which is described in the book of reference;

• “Order limits” means the limits of land to be acquired permanently or used temporarily as shown on the land plans, and the limits of land within which the authorised development, as shown on the works plans, may be carried out;

• “owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981[^f00022];

• “planning authority” means Wiltshire Council;

• “preliminary works” means— archaeological investigation and archaeological mitigation works; ecological mitigation works; investigations for the purpose of assessing ground conditions; remedial work in respect of any contamination or other adverse ground conditions; erection of any temporary means of enclosure; diversion and laying of underground apparatus; site clearance; Work No. 1H(viii) to (xiv) inclusive; Work No. 5; and Work No. 7;

• “restricted byway” has the same meaning as in Part 2 (public rights of way and road traffic) of the Countryside and Rights of Way Act 2000[^f00023];

• “rights of way and access plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the rights of way and access plans for the purposes of this Order;

• “Secretary of State” means the Secretary of State for Transport;

• “shared use cycle track” means a way constituting or comprised in a highway, being a way over which the public have the following, but no other, rights of way, that is to say a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988) and a right of way on foot;

• “Southern Electric Power Distribution plc” means the company of that name (company number 04094290) whose registered office is at No.1 Forbury Place, 43 Forbury Road, Reading, United Kingdom, RG1 3JH);

• “special category land plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the special category land plans for the purposes of this Order;

• “special road” means a highway which is a special road in accordance with section 16[^f00024] (general provisions as to special roads) of the 1980 Act or by virtue of an order granting development consent;

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

• “street” means a street within the meaning of section 48[^f00025] (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

• “traffic authority” has the same meaning as in section 121A[^f00026] (traffic authorities) of the 1984 Act;

• “traffic officer” means an individual designated under section 2 (designation of traffic officers) of the Traffic Management Act 2004[^f00027];

• “traffic regulation measures plans (clearways and prohibitions)” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the traffic regulation measures plans (clearways and prohibitions) for the purposes of this Order;

• “traffic regulation measures plans (speed limits)” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the traffic regulation measures plans (speed limits) for the purposes of this Order;

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

• “trunk road” means a highway which is a trunk road by virtue of— section 10[^f00028] (general provision as to trunk roads) or 19(1)[^f00029] (provisions as to trunk roads) of the 1980 Act; an order made or direction given under section 10 of that Act; an order granting development consent; or any other enactment;

• “tunnel” means the road tunnel to be constructed as part of Work No. 1 and as shown by a solid blue line on the tunnel area plan;

• “tunnel approaches” means the western and eastern approaches to the tunnel, the linear extent of which is shown by dashed blue lines on the tunnel area plan;

• “tunnel area” means the extent of the public highway to be comprised in and along the tunnel and the tunnel approaches;

• “tunnel area plan” means the plan listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the tunnel area plan for the purposes of this Order;

• “tunnel limits of deviation plan” means the plan listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the tunnel limits of deviation plan for the purposes of this Order;

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

• “undertaker” means Highways England Company Limited (company number 09346363) whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;

• “works plans” means the plans listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the works plans for the purposes of this Order and

• “World Heritage Site” means the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site as inscribed by the United Nations Educational, Scientific and Cultural Organization pursuant to the Convention.

• (2) References in this Order to rights over land include references to rights to do or to place and maintain, anything in, on or under land or in the airspace above its surface and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or is otherwise comprised in the Order land.

• (3) References in this Order to the creation and acquisition of rights over land include references to rights to oblige a party having an interest in land to grant those rights referenced in the Order, at the direction of the undertaker, either—

• (a) to an affected person directly, where that affected person’s land or rights over land have been adversely affected by this Order, and, where that is the case, the rights referenced in the Order are to be granted for the benefit of the land in which that affected person has an interest at the time of the making of this Order; or

• (b) to any statutory undertaker for the purposes of their undertaking.

• (4) Subject to the provisions of this Order, all distances, directions, areas and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

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

• (6) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the plan to which the reference relates.

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

Disapplication of legislative provisions

3

• (1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction or maintenance of the authorised development—

• (a) section 28E (duties in relation to sites of scientific interest) of the Wildlife and Countryside Act 1981[^f00030];

• (b) section 23 (prohibition of obstructions, etc. in watercourses) of the Land Drainage Act 1991[^f00031];

• (c) section 32 (variation of awards) of the Land Drainage Act 1991;

• (d) the provisions of any byelaws made under section 66[^f00032] (powers to make byelaws) of the Land Drainage Act 1991;

• (e) the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 (byelaw-making powers of the Appropriate Authority) to the Water Resources Act 1991[^f00033];

• (f) regulation 12 (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016[^f00034] in respect of a flood risk activity only;

• (g) the provisions of the Neighbourhood Planning Act 2017[^f00035] in so far as they relate to temporary possession of land under articles 29 (temporary use of land for constructing the authorised development) and 30 (temporary use of land for maintaining the authorised development) of this Order; and

• (h) section 33(1)(f) (effect of requirement for development consent on other consent regimes) of the 2008 Act in so far as it relates to any work or operation authorised to be carried out outside of the Order limits under articles 14 (protective works to buildings) or 15 (authority to survey and investigate land) of this Order.

• (2) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 (meaning of “development”) of the Community Infrastructure Levy Regulations 2010[^f00036] any building comprised in the authorised development is deemed to be—

• (a) a building into which people do not normally go; or

• (b) a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.

PART 2 — WORKS PROVISIONS

Principal Powers

Development consent, etc. granted by the Order

4

• (1) Subject to the provisions of this Order, including the requirements in Schedule 2 (requirements), the undertaker is granted development consent for the authorised development.

• (2) Any enactment applying to land within or adjacent to the Order limits has effect subject to the provisions of this Order.

Maintenance of the authorised development

5

The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.

Planning permission

6

• (1) Subject to paragraph (3), if planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is not—

• (a) itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or

• (b) required to complete or enable the use or operation of any part of the development authorised by this Order,

then the construction, maintenance, use or operation of that development under the terms of the planning permission does not constitute a breach of the terms of this Order.

• (2) Except as expressly provided, nothing in this Order is to prejudice the operation of, and the powers and duties of the undertaker under, the 1980 Act, the 1991 Act and the Town and Country Planning (General Permitted Development) (England) Order 2015[^f00037].

• (3) Within the World Heritage Site, the undertaker may not rely on planning permission granted by class B of Part 9 (development relating to roads) of Schedule 2 (permitted development rights) of the Town and Country Planning (General Permitted Development) (England) Order 2015 for any part of the authorised development.

Limits of deviation

7

• (1) The following provisions of this article have effect subject to the requirement that the undertaker must, save for any works or operations authorised under articles 14 (protective works to buildings) or 15 (authority to survey and investigate land), construct the authorised development within the Order limits.

• (2) In constructing and maintaining the non-linear works comprised in the authorised development, the undertaker may deviate laterally within the limits of deviation for those works shown on the works plans, to the extent the undertaker considers necessary.

• (3) In constructing or maintaining the linear works comprised in the authorised development the undertaker may deviate laterally from the lines or situations shown on the works plans to the extent of the Order limits, so far as the undertaker considers to be necessary, save that—

• (a) in constructing or maintaining any linear work, other than Work No. 1F, in deviating laterally from the centrelines shown on the works plans, the situation of the centreline may be varied up to a maximum of 3 metres either side of the centreline of that work as shown on the works plans;

• (b) in constructing or maintaining Work No. 1F, the undertaker may deviate laterally within the Order limits so far as the undertaker considers to be necessary, and the lateral limits of deviation provided for in sub-paragraph (a) does not apply; and

• (c) in constructing or maintaining the authorised development comprised in Work No. 6(a), the undertaker may deviate laterally only within the bounds of the carriageway and verges of the existing A303 (to be de-trunked under this Order).

• (4) Except in the case of Work No. 1F, in constructing or maintaining the authorised development, the undertaker may deviate vertically from the levels shown on the engineering section drawings (plan and profiles) and the engineering section drawings (cross sections)—

• (a) to any extent upwards as the undertaker considers to be necessary but not exceeding 0.5 metres, or, in relation to the parts of the authorised development referred to in column (1) of the table below, not exceeding the permitted limit for each such part, set out in the corresponding entry in column (2) of that table; and

• (b) subject to paragraph (5), to any extent downwards as the undertaker considers to be necessary, but not exceeding 1 metre, or, in relation to the parts of the authorised development referred to in column (1) of the table below, not exceeding the permitted limit for each such part, set out in the corresponding entry in column (3) of that table.

(1) Part of authorised development	(2) Upwards vertical limit of deviation	(3) Downwards vertical limit of deviation
Works Nos. 1A and 2	1 metre	1 metre
Work Nos. 1B and 1H	0.5 metres	0.5 metres
Work Nos. 1C, 3A, 3B, 3C, 4, 5 and 7	0.5 metres	1 metre
(1) Work No. 1D, save for	(1) 0.5 metres	(1) 3 metres
(2) the level of the ground above the structure comprised in Work No. 1D(i), which is to be reinstated at existing ground level subject to the limits in columns (2) and (3) which are to apply by reference to existing ground level	(2) 0.25 metres	(2) 0.25 metres
(1) Work No. 1E, save for	(1) 0.5 metres	(1) 4 metres
(2) the level of the ground above the structures comprised in Work No. 1E(i), which is to be reinstated at existing ground level subject to the limits in columns (2) and (3) which are to apply by reference to existing ground level	(2) 0.25 metres	(2) 0.25 metres
(1) Work No. 1G save for	(1) 0.5 metres	(1) 3 metres
(2) the level of the ground above the structures comprised in Work No. 1G(i) and (ii), which is to be reinstated at existing ground level subject to the limits in columns (2) and (3) which are to apply by reference to existing ground level	(2) 0.25 metres	(2) 0.25 metres
Work No. 6	0.25 metres	0.25 metres
Work No. 8	3 metres	3 metres, but not lower than the existing ground levels

• (5) In constructing and maintaining the authorised development comprised in Work No. 1F the undertaker may deviate vertically—

• (a) upwards, to the maximum upper limit of deviation for the crown of the tunnel, as shown on the tunnel limits of deviation plan;

• (b) upwards, to the maximum upper limit of deviation for the finished road level shown on the tunnel limits of deviation plan; and

• (c) downwards, to a depth not exceeding the level at 36 metres above ordnance datum.

• (6) The maximum vertical limits of deviation referred to in paragraphs (4) and (5) do not apply where it is demonstrated by the undertaker to the Secretary of State’s satisfaction and the Secretary of State certifies accordingly, following consultation with the planning authority and any other person the Secretary of State considers appropriate having regard to the proposed deviation in question and the statutory roles and responsibilities of such person, that a deviation in excess of these limits would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

• (7) Without limitation on the scope of paragraphs (2) to (6), in constructing or maintaining the authorised development the undertaker may—

• (a) subject to sub-paragraph (b), deviate by up to 3 metres from the points of commencement and termination of any linear works;

• (b) in relation to the points of commencement and termination of the parts of the authorised development referred to in column (1) of the table below, the undertaker may deviate from those points of commencement and termination so far as the undertaker considers it necessary, in a generally westerly direction by the corresponding limit set out in column (2) or in a generally easterly direction by the corresponding limit set out in column (3); and

• (c) in constructing or maintaining Work Nos. 1E, 1F and 1G, deviate from the design of any tunnel or tunnel structure and vary the number of tunnel cross-passages shown on the engineering section drawings (plan and profiles) and the engineering section drawings (cross sections) to the extent that to do so would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(1) Part of the authorised development	(2) Deviation permitted in a generally westerly direction	(3) Deviation permitted in a generally easterly direction
Point of commencement of Work No. 1E and point of termination of Work No. 1D	200 metres	1 metre
Point of commencement of Work No. 1F and point of termination of Work No. 1E	200 metres	1 metre
Point of commencement of Work No. 1G and point of termination of Work No. 1F	1 metre	30 metres
Point of commencement of Work No. 1H and point of termination of Work No. 1G	1 metre	30 metres

• (8) In this article, references to—

• (a) “linear works” are references to any works shown on the works plans by way of a centreline; and

• (b) “non-linear works” are references to any other works shown on the works plans.

• (9) Despite the provisions of article 2(4), the distances and lengths referred to in this article are not to be taken as being approximate.

Streets

Application of the 1991 Act

8

• (1) Works constructed or maintained under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—

• (a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (highway authorities, highways and related works) of that Act; or

• (b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64[^f00038] (dual carriageways and roundabouts) of the 1980 Act or section 184[^f00039] (vehicle crossings over footways and verges) of that Act.

• (2) In Part 3 of the 1991 Act in relation to works which are major highway works by virtue of paragraph (1), references to the highway authority concerned are to be construed as references to the undertaker.

• (3) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers conferred by this Order—

• section 56[^f00040] (power to give directions as to timing of street works);

• section 56A[^f00041] (power to give directions as to placing of apparatus);

• section 58[^f00042] (restriction on works following substantial road works);

• section 58A[^f00043] (restriction on works following substantial street works);

• section 73A[^f00044] (power to require undertaker to re-surface street);

• section 73B[^f00045] (power to specify timing etc. of re-surfacing);

• section 73C[^f00046] (materials, workmanship and standard of re-surfacing);

• section 78A[^f00047] (contributions to costs of re-surfacing by undertaker); and

• Schedule 3A[^f00048] (restriction on works following substantial street works).

• (4) The provisions of the 1991 Act mentioned in paragraph (5) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved under, those provisions apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 11 (temporary stopping up and restriction of use of streets) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

• (5) The provisions of the 1991 Act[^f00049] referred to in paragraph (4) are—

• section 54[^f00050] (advance notice of certain works), subject to paragraph (6);

• section 55[^f00051] (notice of starting date of works), subject to paragraph (6);

• section 57[^f00052] (notice of emergency works);

• section 59[^f00053] (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 68 (facilities to be afforded to street authority);

• section 69 (works likely to affect other apparatus in the street);

• section 75 (inspection fees);

• section 76 (liability for cost of temporary traffic regulation); and

• section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purposes of the provisions mentioned above.

• (6) Sections 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

• (7) Nothing in article 9 (construction and maintenance of new, altered or diverted streets and other structures)—

• (a) affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and the undertaker is not by reason of any duty under that article to maintain a street or to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

• (b) has effect in relation to street works to which the provisions of Part 3 of the 1991 Act apply.

Construction and maintenance of new, altered or diverted streets and other structures

9

• (1) Subject to paragraphs (6), (7) and (8), any highway (other than a trunk road or special road) to be constructed under this Order must be completed to the reasonable satisfaction of the local highway authority in whose area the highway lies and, unless otherwise agreed in writing with the local highway authority, the highway, including any culverts or other structures laid under it, must be maintained by and at the expense of the local highway authority from its completion.

• (2) Subject to paragraphs (3), (6), (7) and (8), where a highway (other than a trunk road or special road) is altered or diverted under this Order, the altered or diverted part of the highway must be completed to the reasonable satisfaction of the local highway authority and, unless otherwise agreed in writing with the local highway authority, that part of the highway, including any culverts or other structures laid under it, must be maintained by and at the expense of the local highway authority from its completion.

• (3) Subject to paragraphs (6), (7) and (8), where a footpath or bridleway is altered or diverted under this Order along a vehicular private means of access, the altered or diverted part of the highway must, when completed to the reasonable satisfaction of the highway authority and unless otherwise agreed in writing, be maintained (including any culverts or other structures laid under that part of the highway) by and at the expense of the person or persons with the benefit of the vehicular private means of access.

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

• (5) Subject to paragraphs (6), (7) and (8), where a highway is de-trunked under this Order—

• (a) section 265[^f00054] (transfer of property and liabilities upon a highway becoming or ceasing to be a trunk road) of the 1980 Act applies in respect of that highway; and

• (b) any alterations to that highway undertaken under powers conferred by this Order prior to and in connection with that de-trunking must, unless otherwise agreed in writing with the local highway authority, be maintained by and at the expense of the local highway authority from the date of de-trunking.

• (6) In the case of any bridge constructed under this Order to carry a highway other than a trunk road or special road over a trunk road or special road, the highway surface must from its completion be maintained by and at the expense of the local highway authority and the structure of the bridge must be maintained by and at the expense of the undertaker.

• (7) In the case of any bridge constructed under this Order to carry a highway (other than a trunk road or special road) over another highway which is not a trunk road or a special road, both the highway surface and structure of the bridge must be maintained by and at the expense of the local highway authority from their completion.

• (8) In the case of a bridge constructed under this Order to carry a private right of way (whether or not it also carries a footpath or bridleway), the surface of the street and the structure of the bridge must be maintained by and at the expense of the undertaker.

• (9) In any action against the undertaker in respect of loss or damage resulting from any failure by the undertaker to maintain a street under this article, it is a defence (without affecting any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

• (10) For the purposes of a defence under paragraph (9), the court must in particular have regard to the following matters—

• (a) the character of the street and the traffic which was reasonably to be expected to use it;

• (b) the standard of maintenance appropriate for a street of that character and used by such traffic;

• (c) the state of repair in which a reasonable person would have expected to find the street;

• (d) whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

• (e) where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.

Permanent stopping up of streets and private means of access

10

• (1) Subject to the provisions of this article, the undertaker may, in connection with the construction of the authorised development, stop up each of the streets and private means of access shown on the rights of way and access plans and specified in columns (1) and (2) of Parts 1, 2, 3 and 4 of Schedule 3 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to the extent specified and described in column (3) of those Parts of that Schedule.

• (2) No street or private means of access specified in columns (1) and (2) of Parts 1 and 3 of Schedule 3 (being a street or private means of access to be stopped up for which a substitute is to be provided) is to be wholly or partly stopped up under this article unless—

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

• (b) a temporary alternative route for the passage of such traffic as could have used the street or private means of access to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street or private means of access until the completion and opening of the new street or private means of access in accordance with sub-paragraph (a).

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

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

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

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

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

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

• (5) Where a street or private means of access has been stopped up under this article—

• (a) all rights of way over or along the street or private means of access so stopped up are extinguished; and

• (b) the undertaker may appropriate and use for the purposes of the authorised development so much of the site of the street or private means of access as is bounded on both sides by land owned by the undertaker.

• (6) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

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

Temporary stopping up and restriction of use of streets

11

• (1) The undertaker may, during and for the purposes of constructing the authorised development, temporarily stop up, alter, divert or restrict the use of any street and may for any reasonable time—

• (a) divert the traffic from the street; and

• (b) subject to paragraph (3), prevent all persons from passing along the street.

• (2) Without limitation on the scope of paragraph (1), the undertaker may use any street temporarily stopped up or restricted under the powers conferred by this article and within the Order limits as a temporary working site.

• (3) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration, diversion or restriction of a street under this article if there would otherwise be no such access.

• (4) The undertaker must not temporarily stop up, alter, divert or restrict the use of any street for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent, but its consent must not be unreasonably withheld or delayed.

• (5) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Access to works

12

The undertaker may, for the purposes of the authorised development, form and lay out means of access, or improve existing means of access at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

Supplemental Powers

Discharge of water

13

• (1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse, public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

• (2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker under paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991[^f00055].

• (3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose.

• (4) The undertaker must not make any opening into any public sewer or drain except—

• (a) in accordance with plans approved by the person to whom the sewer or drain belongs; and

• (b) where that person has been given the opportunity to supervise the making of the opening.

• (5) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

• (6) Nothing in this article overrides the requirement for an environmental permit under regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016[^f00056].

• (7) In this article—

• (a) “public sewer or drain” means a sewer or drain which belongs to the Homes England, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a sewerage undertaker or an urban development corporation; and

• (b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991[^f00057], have the same meanings as in that Act.

Protective works to buildings

14

• (1) Subject to the following provisions of this article, the undertaker may at the undertaker’s own expense carry out such protective works to any building lying within the Order limits or which may be affected by the authorised development as the undertaker considers necessary or expedient.

• (2) Protective works may be carried out—

• (a) at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or

• (b) after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

• (3) Subject to paragraph (5), for the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.

• (4) For the purpose of carrying out protective works to a building under this article the undertaker may (subject to paragraphs (5) and (6))—

• (a) enter the building and any land within its curtilage; and

• (b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (whether or not such adjacent land is inside or outside the Order limits) but not any building erected on it,

and if it is reasonably required, the undertaker may take possession, or exclusive possession, of the building and any land or part thereof for the purpose of carrying out the protective works.

• (5) Before exercising—

• (a) a right under paragraph (1) to carry out protective works to a building;

• (b) a right under paragraph (3) to enter a building and land within its curtilage;

• (c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

• (d) a right under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

• (6) Where a notice is served under paragraph (5)(a), (5)(c) or (5)(d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question of whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 57 (arbitration).

• (7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.

• (8) Where—

• (a) protective works are carried out under this article to a building; and

• (b) within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

• (9) Subject to article 37 (no double recovery) nothing in this article relieves the undertaker from any liability to pay compensation under section 152[^f00058] (compensation in case where no right to claim in nuisance) of the 2008 Act.

• (10) Section 13[^f00059] (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto 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[^f00060] (application of compulsory acquisition provisions) of the 2008 Act.

• (11) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

• (12) In this article “protective works” in relation to a building means—

• (a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or use of the authorised development; and

• (b) any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate land

15

• (1) The undertaker may for the purposes of the construction, operation or maintenance of the authorised development enter on—

• (a) any land shown within the Order limits; and

• (b) where reasonably necessary, any land which is adjacent to, but outside the Order limits,

and—

• (i) survey or investigate the land (including any watercourses, groundwater, static water bodies or vegetation on the land);

• (ii) without limitation on the scope of sub-paragraph (i), make any excavations or trial holes and boreholes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer, subsoil and groundwater and remove soil and water samples and discharge water from sampling operations on to the land;

• (iii) without limitation on the scope of sub-paragraph (i), carry out ecological or archaeological investigations on such land, including making any excavations or trial holes on the land for such purposes; and

• (iv) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes and boreholes.

• (2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

• (3) The notice required under paragraph (2) must indicate the nature of the survey or investigation that the undertaker intends to carry out.

• (4) Any person entering land under this article on behalf of the undertaker—

• (a) must, if so required, before or after entering the land, produce written evidence of authority to do so; and

• (b) may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes and boreholes.

• (5) No trial holes or boreholes are to be made under this article—

• (a) in land located within the highway boundary without the consent of the highway authority; or

• (b) in a private street without the consent of the street authority.

• (6) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

• (7) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto 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.

Removal of human remains

16

• (1) In this article—

• “the burial authority” means the burial authority for the specified land, being Wiltshire Council; and

• “the specified land” means any 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) Subject to paragraph (12), 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 once in each of two successive weeks in a newspaper circulating in the area of the specified land; 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 burial 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 is to 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 is to 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;

• (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;

• (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,

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 must be re-interred in individual containers which must 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 must 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 burial authority.

• (12) No notice is required under paragraph (3) before the removal of any human remains where the undertaker is satisfied—

• (a) that the remains were interred more than 100 years ago; and

• (b) that no relative or personal representative of the deceased is likely to object to the remains being removed in accordance with this article.

• (13) In the case of remains in relation to which paragraph (12) applies, the undertaker—

• (a) may remove the remains;

• (b) must apply for direction from the Secretary of State under paragraph (15) as to their subsequent treatment; and

• (c) must deal with the remains in such manner, and subject to such conditions, as the Secretary of State directs.

• (14) In this article—

• (a) references to a relative of the deceased are to a person who—

• (i) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased; or

• (ii) is, or is a child of, a brother, sister, uncle or aunt of the deceased.

• (b) references to a personal representative of the deceased are to a person or persons who—

• (i) is the lawful executor of the estate of the deceased; or

• (ii) is the lawful administrator of the estate of the deceased.

• (15) The removal and subsequent treatment 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.

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

• (17) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857[^f00061] is not apply to a removal carried out in accordance with this article.

• (18) Section 239 (use and development of burial grounds) of the 1990 Act applies—

• (a) in relation to land, other than a right over land, acquired for the purposes of the authorised development (whether or not by agreement), so as to permit use by the undertaker in accordance with the provisions of this Order; and

• (b) in relation to a right over land so acquired (whether or not by agreement), or the temporary use of land pursuant to articles 29 (temporary use of land for constructing the authorised development) or 30 (temporary use of land for maintaining the authorised development), so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order,

and in section 240(1) (provisions supplemental to ss.238 and 239) of the 1990 Act reference to “regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as applicable to land or a right over land acquired under this Order, paragraphs (2) to (16) of this article and in section 240(3) of the 1990 Act reference to a “statutory undertaker” includes the undertaker and reference to “any other enactment“ includes this Order.

• (19) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950[^f00062] do not apply to the authorised development.

Felling or lopping of trees and hedgerows

17

• (1) The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits, or cut back its roots, if the undertaker 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 do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

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

• (4) The undertaker may, for the purposes of constructing, maintaining or operating the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits that is required to be removed.

• (5) In this article “hedgerow” includes a hedgerow to which the Hedgerow Regulations 1997[^f00063] apply and includes important hedgerows.

Maintenance of drainage works

18

• (1) Nothing in this Order, or the construction, maintenance or operation of the authorised development under it, affects any responsibility for the maintenance of any works connected with the drainage of land, whether that responsibility is imposed or allocated by or under any enactment, or otherwise, unless otherwise agreed in writing between the undertaker and the person responsible.

• (2) In this article “drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991[^f00064].

PART 3 — POWERS OF ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

19

• (1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or as is incidental to it.

• (2) This article is subject to article 22 (compulsory acquisition of rights), article 27 (acquisition of subsoil, etc., only) and article 29(8) (temporary use of land for constructing the authorised development).

Compulsory acquisition of land – incorporation of the minerals code

20

Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981[^f00065] are incorporated into this Order subject to the modifications that—

• (a) paragraph 8(3) is not incorporated; and

• (b) for “the acquiring authority” substitute “the undertaker”.

Time limit for exercise of powers to possess land temporarily or to acquire land compulsorily

21

• (1) After the end of the period of 5 years beginning on the day on which this Order comes into force—

• (a) no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act as modified by article 25 (modification of Part 1 of the 1965 Act); and

• (b) no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 26 (application of the 1981 Act),

in relation to any part of the Order land.

• (2) The authority conferred by article 29 (temporary use of land for constructing the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker from remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights

22

• (1) Subject to the following paragraphs of this article, the undertaker may acquire such rights over the Order land or impose such restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 19 (compulsory acquisition of land), by creating them as well as acquiring rights already in existence.

• (2) The powers of paragraph (1) may be exercised by a statutory undertaker or by an owner or occupier of land identified in column (4) of the table in Part 3 of Schedule 3 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to this Order, instead of by the undertaker in any case where the undertaker has given its prior consent to that in writing, and that consent may be given subject to terms and conditions.

• (3) Where in consequence of paragraph (2), a statutory undertaker or an owner or occupier of land exercises the powers in paragraph (1) in place of the undertaker, except in relation to the payment of compensation the liability for which must remain with the undertaker, the statutory undertaker or the owner or occupier of land, as the case may be, is to be treated for the purposes of this Order, and by any person with an interest in the land affected, as being the undertaker in relation to the acquisition of the rights and the imposition of the restrictive covenants in question.

• (4) In the case of the Order land specified in columns (1) and (2) of Schedule 4 (land in which only new rights etc., may be acquired) the undertaker’s powers of compulsory acquisition under paragraph (1) are limited to the acquisition of such wayleaves, easements, new rights over the land or the imposition of such restrictive covenants as the undertaker may require for or in connection with the authorised development for the purposes specified in column (3) of Schedule 4 in relation to that land.

• (5) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 4 for the benefit of statutory undertakers or for the benefit of any other person—

• (a) does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 4 as may be required for the benefit of any other statutory undertaker or any other person; and

• (b) must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 4 as are required for the benefit of any other statutory undertaker or any other person.

• (6) Subject to section 8[^f00066] (other provisions as to divided land) of, and Schedule 2A[^f00067] (counter-notice requiring purchase of land not in notice to treat) to, the 1965 Act (as substituted by paragraph 5(8) of Schedule 5 (modification of compensation and compulsory purchase enactments for the creation of new rights)), where the undertaker acquires a right over land or the benefit of a restrictive covenant, the undertaker is not required to acquire a greater interest in that land.

• (7) Schedule 5 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

• (8) For the purposes of this article “statutory undertaker” includes Esso.

Private rights over land

23

• (1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished—

• (a) from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

• (b) on the date of entry onto the land by the undertaker under section 11(1)[^f00068] (powers of entry) of the 1965 Act,

whichever is the earlier.

• (2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or burden of the restrictive covenant—

• (a) from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; or

• (b) on the date of entry onto the land by the undertaker under section 11(1) of the 1965 Act, or

• (c) on commencement of any activity authorised by the Order which interferes with or breaches those rights,

whichever is the earlier.

• (3) Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

• (4) Any person who suffers loss by the extinguishment or suspension of any private right or by the imposition of any restrictive covenant under this article is entitled to compensation in accordance with the terms of section 152[^f00069] (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

• (5) This article does not apply in relation to any right to which section 138[^f00070] (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 31 (statutory undertakers) applies.

• (6) Paragraphs (1) to (3) have effect subject to—

• (a) any notice given by the undertaker before—

• (i) the completion of the acquisition of the land or the acquisition of the rights or the imposition of restrictive covenants over or affecting the land;

• (ii) the undertaker’s appropriation of it;

• (iii) the undertaker’s entry onto it; or

• (iv) the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right specified in the notice; and

• (b) any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

• (7) If any such agreement as is referred to in paragraph (6)(b)—

• (a) is made with a person in or to whom the right is vested or belongs; and

• (b) is expressed to have effect also for the benefit of those deriving title from or under that person,

it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

• (8) References in this article to private rights over land include any right of way, trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Power to override easements and other rights

24

• (1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

• (a) an interference with an interest or right to which this article applies; or

• (b) a breach of a restriction as to the user of land arising by virtue of a contract.

• (2) The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by the virtue of a contract.

• (3) Where an interest, right or restriction is overridden by paragraph (1), compensation—

• (a) is payable under section 7 (measure of compensation in case of severance) or section 10 (further provision as to compensation for injurious affection) of the 1965 Act; and

• (b) is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where—

• (i) the compensation is to be estimated in connection with a purchase under that Act; or

• (ii) the injury arises from the execution of works on or use of land acquired under that Act.

• (4) Where a person deriving title under the undertaker by whom the land in question was acquired—

• (a) is liable to pay compensation by virtue of paragraph (3); and

• (b) fails to discharge that liability,

the liability is enforceable against the undertaker.

• (5) Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1) of this article.

• (6) In this article “authorised activity” means—

• (a) the erection, construction or maintenance of any part of the authorised development;

• (b) the exercise of any power authorised by this Order; or

• (c) the use of any land (including the temporary use of land).

Modification of Part 1 of the 1965 Act

25

• (1) Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied to this Order by section 125[^f00071] (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

• (2) In section 4A(1)[^f00072] (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 118[^f00073] (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (3) In section 11A[^f00074] (powers of entry: further notice of entry)—

• (a) in subsection (1)(a), after “land” insert “under that provision”; and

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

• (4) 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 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (5) In Schedule 2A[^f00075] (counter-notice requiring purchase of land not in notice to treat)—

• (a) for paragraphs 1(2) and 14(2) substitute—

(2) But see article 27(4) (acquisition of subsoil, etc., only) of the A303 (Amesbury to Berwick Down) Order 2023, which excludes the acquisition of subsoil or airspace only from this Schedule.

; and

• (b) after paragraph 29, insert—

(30) In this Schedule, references to entering on and taking possession of land do not include doing so under articles 14 (protective works to buildings), 15 (authority to survey and investigate land), 29 (temporary use of land for constructing the authorised development) or 30 (temporary use of land for maintaining the authorised development) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023.

Application of the 1981 Act

26

• (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[^f00076] (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

• (5) Omit section 5A[^f00077] (time limit for general vesting declaration).

• (6) In section 5B[^f00078] (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[^f00079] (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the 5 year period mentioned in article 21 (time limit for exercise of powers to possess land temporarily or to acquire land compulsorily) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023”.

• (7) In section 6[^f00080] (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[^f00081] (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

• (8) In section 7[^f00082] (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

• (9) In Schedule A1[^f00083] (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—

(2) But see article 27(4) (acquisition of subsoil, etc., only) of the A303 (Amesbury to Berwick Down) Development Consent Order 2023, which excludes the acquisition of subsoil or airspace only from this Schedule.

• (10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 25 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil, etc., only

27

• (1) The undertaker may acquire compulsorily so much of, or such rights over, the subsoil of and airspace over the land referred to in paragraph (1) of article 19 (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.