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The Mallard Pass Solar Farm Order 2024

Type Statutory-Instrument
Publication 2024-07-12
Last updated 2024-11-01
State In force
Department King's Printer of Acts of Parliament
Source legislation.gov.uk
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Made: 12th July 2024

Coming into force: 3rd August 2024

The Secretary of State, in exercise of the powers conferred by sections 114[^f00007], 115[^f00008], 120[^f00009], 122[^f00010] 123[^f00011] and 140 of the 2008 Act, makes the following Order.

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Mallard Pass Solar Farm Order and comes into force on 3rd August 2024.

Interpretation

2

  • (1) In this Order—
  • “the 1961 Act” means the Land Compensation Act 1961[^f00012];
  • “the 1965 Act” means the Compulsory Purchase Act 1965[^f00013];
  • “the 1980 Act” means the Highways Act 1980[^f00014];
  • “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00015];
  • “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00016];
  • “the 1989 Act” means the Electricity Act 1989[^f00017];
  • “the 1990 Act” means the Town and Country Planning Act 1990[^f00018];
  • “the 1991 Act” means the New Roads and Street Works Act 1991[^f00019];
  • “the 2008 Act” means the Planning Act 2008[^f00020];
  • “access and rights of way plans” means the plans of that name identified in the table at Schedule 13 (documents and plans to be certified) and which are certified by the Secretary of State as the access and rights of way plans for the purposes of this Order;
  • “address” includes any number or address used for the purposes of electronic transmission;
  • “apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act except that, unless otherwise provided, it further includes pipelines (and parts of them), aerial markers, cathodic protection test posts, field boundary markers, transformer rectifier kiosks, electrical cables, telecommunications equipment and electricity cabinets;
  • “authorised development” means the development and associated development described in Schedule 1 (authorised development), which is development within the meaning of section 32 (meaning of “development”) of the 2008 Act;
  • “book of reference” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the book of reference for the purposes of this Order;
  • “building” includes any structure or erection or any part of a building, structure or erection;
  • “carriageway” has the same meaning as in the 1980 Act;
  • “claimed public right of way” means the route of a public right of way that is claimed to exist by members of the public within the area shown on the claimed public right of way plan;
  • “claimed public right of way plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the claimed public right of way plan for the purposes of this Order;
  • “commence” means beginning to carry out a material operation, as defined in section 155 (when development begins) of the 2008 Act, comprised in or carried out for the purposes of, the authorised development other than the permitted preliminary works (except where stated to the contrary) and “commencement”, “commenced” and cognate expressions are to be construed accordingly;
  • “commissioning” means the process of testing the systems and components of the phase of Work No. 1 that is the subject of the notice given under requirement 3 of Schedule 2 (requirements) in order to ensure that they function in accordance with plant design specifications and the undertaker’s operational and safety requirements;
  • “date of final commissioning” means in respect of each phase of the authorised development as approved under requirement 3 of Schedule 2 (requirements) the date on which each phase of the authorised development commences operation by generating electricity on a commercial basis but excluding the generation of electricity during commissioning;
  • “design and access statement” means the document of that name identified in the table of Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the design and access statement for the purposes of this Order;
  • “design guidance” means section 4.5 of the design and access statement;
  • “electrical cables” means—cables of differing types and voltages installed for the purposes of conducting electricity, auxiliary cables, cables connecting to direct current (DC) boxes, earthing cables, data cables and optical fibre cables; andworks associated with cable laying including jointing pits, hardstanding adjoining the jointing pits, combiner boxes, fibre bays, cable ducts, cable protection, joint protection, manholes, kiosks, marker posts, underground cable marker, tiles and tape, send and receive pits for horizontal directional drilling, trenching, lighting, and a pit or container to capture fluids associated with drilling;
  • “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form;
  • “environmental statement” means the document of that name identified in the table in Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the environmental statement for the purposes of this Order;
  • “footpath” and “footway” have the same meaning as in the 1980 Act;
  • “hedgerows plans” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the hedgerows plans for the purposes of this Order;
  • “highway” and “highway authority” have the same meaning as in the 1980 Act[^f00021];
  • “holding company” has the same meaning as in section 1159 of the Companies Act 2006[^f00022];
  • “land plans” means the plans of that name identified in the table in Schedule 13 (documents and plans to be certified) and which are certified by the Secretary of State as the land plans for the purposes of this Order;
  • “limits of deviation” means the limits of deviation shown for each numbered work on the works plans;
  • “maintain” includes inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part of the authorised development (but not remove, reconstruct or replace the whole of Work No. 1 at the same time), to the extent that such works do not give rise to any materially new or materially different environmental effects than those identified in the environmental statement for the operation of the authorised development and “maintenance” and “maintaining” are to be construed accordingly;
  • “Order land” means the land shown coloured pink and the land shown coloured blue on the land plans, which is described in the book of reference;
  • “Order limits” means the limits of land or rights over land to be acquired permanently or used temporarily as shown on the land plans, and within which the authorised development as shown on the works plans may be carried out;
  • “outline construction environmental management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline construction environmental management plan for the purposes of this Order;
  • “outline construction traffic management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline construction traffic management plan for the purposes of this Order;
  • “outline decommissioning environmental management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline decommissioning environmental management plan for the purposes of this Order;
  • “outline employment, skills and supply chain plan” means the plan of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline skills, supply chain and employment plan for the purposes of this Order;
  • “outline excavated materials management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline excavated materials management plan for the purposes of this Order;
  • “outline landscape and ecology management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline landscape and ecology management plan for the purposes of this Order;
  • “outline operational environmental management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline operational environmental management plan for the purposes of this Order;
  • “outline soil management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline soil management plan for the purposes of this Order;
  • “outline surface water drainage strategy” means the document of that name contained in Appendix 11.6 of the environmental statement identified in table at Schedule 13 (documents and plans to be certified) which is certified by the Secretary of State as the outline surface water drainage strategy for the purposes of this Order;
  • “outline travel plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline travel plan for the purposes of this Order;
  • “outline water management plan” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline water management plan for the purposes of this Order;
  • “outline written scheme of investigation” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as the outline written scheme of investigation for the purposes of this Order;
  • “owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981[^f00023];
  • “parameters” means the document of that name identified in the table at Schedule 13 (documents and plans to be certified) and which is certified by the Secretary of State as parameters for the purposes of this Order;
  • “permissive paths” means new paths providing restricted public access within the Order limits along the routes shown on the outline landscape and ecology management plan;
  • “permitted preliminary works” means all or any of—environmental surveys, geotechnical surveys, intrusive archaeological surveys and other investigations for the purpose of assessing ground conditions;removal of plant and machinery;above ground site preparation for temporary facilities for the use of contractors;remedial work in respect of any contamination or other adverse ground conditions;diversion of existing apparatus and laying of temporary apparatus;the provision of temporary means of enclosure and site security for construction;the temporary display of site notices or advertisements; orsite clearance (including vegetation removal, demolition of existing buildings and structures);
  • “plot” means any plot as may be identified by reference to a number and which is listed in the book of reference and shown on the land plans;
  • “relevant planning authority” means the local planning authority for the area in which the land to which the provisions of this Order apply is situated;
  • “requirements” means those matters set out in Schedule 2 (requirements) and “requirement” means any one of the requirements;
  • “statutory undertaker” means any person falling within section 127(8) (statutory undertakers’ land) of the 2008 Act and includes a public communications provider defined by section 151(1) (interpretation of chapter 1) of the Communications Act 2003[^f00024];
  • “street” means a street within the meaning of section 48 (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes any footpath and part of a street;
  • “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act[^f00025];
  • “street works” means the works listed in article 8(1) (street works);
  • “subsidiary” has the same meaning as in section 1159 of the Companies Act 2006[^f00026];
  • “traffic authority” has the same meaning as in section 121A (traffic authorities) of the 1984 Act[^f00027];
  • “traffic regulation measures plans – road closures” means the plans of that name identified in the table at Schedule 13 (documents and plans to be certified) and which are certified by the Secretary of State as the traffic regulation measures plans – road closures for the purposes of this Order;
  • “traffic regulation measures plans – temporary measures” means the plans of that name identified in the table at Schedule 13 (documents and plans to be certified) and which are certified by the Secretary of State as the traffic regulation measures plans – temporary measures for the purposes of this Order;
  • “undertaker” means Mallard Pass Solar Farm Limited (company number 12575861) or any person who has the benefit of this Order in accordance with articles 34 (benefit of Order) and 35 (consent to transfer benefit of the Order);
  • “Upper Tribunal” means the Lands Chamber of the Upper Tribunal;
  • “watercourse” includes every river, stream, creek, ditch, drain, canal, cut, culvert, dyke, sluice, sewer and passage through which water flows except a public sewer or drain;
  • “working day” means any day apart from Saturday, Sunday or any statutory bank or public holiday; and
  • “works plans” means the plans of that name identified in the table at Schedule 13 (documents and plans to be certified) and which are certified by the Secretary of State as the works plans for the purposes of this Order.
  • (2) References in this Order to rights over land include references to rights to do or restrain or to place and maintain anything in, on or under land or in the airspace above its surface and to any trusts or incidents (including restrictive covenants) to which the land is subject 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 over which rights are created and acquired under this Order or is otherwise comprised in this Order.
  • (3) In this Order, references to the purposes of the authorised development includes the construction, maintenance, operation, use and decommissioning of the authorised development.
  • (4) All distances, directions, capacities and lengths referred to in this Order are approximate and distances between lines or points on a numbered work comprised in the authorised development and shown on the works plans, access and rights of way plans, traffic regulation measures plans – road closures and traffic regulation measures plans – temporary measures are to be taken to be measured along that work.
  • (5) References in this Order to numbered works are references to the works comprising the authorised development as numbered in Schedule 1 (authorised development) and shown on the works plans and a reference in this Order to a work designated by number.
  • (6) In this Order, the expression “includes” is to be construed without limitation unless the contrary intention appears.
  • (7) In this Order, references to any statutory body include that body’s successor bodies.
  • (8) All areas described in square metres in the book of reference are approximate.

PART 2 — PRINCIPAL POWERS

3

  • (1) Subject to the provisions of this Order and the requirements, the undertaker is granted development consent for the authorised development to be carried out within the Order limits.
  • (2) Each numbered work must be situated within the corresponding numbered area shown on the works plans and within the limits of deviation.

Operation of generating station

4

  • (1) The undertaker is authorised to use and operate the generating station comprised in the authorised development.
  • (2) This article does not relieve the undertaker of any requirement to obtain any permit or licence under any other legislation that may be required from time to time to authorise the operation of an electricity generating station.

Power to maintain authorised development

5

  • (1) The undertaker may at any time maintain the authorised development.
  • (2) This article only authorises the carrying out of maintenance works within the Order limits.
  • (3) This article does not authorise the carrying out of any works which are likely to give rise to any materially new or materially different effects that have not been assessed in the environmental statement.

Application and modification of statutory provisions

6

  • (1) The following provisions do not apply in relation to the carrying out of any activities or development required for the purposes of, or in connection with, the authorised development—
  • (a) section 23 (prohibition of obstructions, etc. in watercourses) of the Land Drainage Act 1991[^f00028];
  • (b) section 32 (variation of awards)[^f00029] of the Land Drainage Act 1991;
  • (c) the provisions of any byelaws made under section 66[^f00030] (powers to make byelaws) of the Land Drainage Act 1991;
  • (d) 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 authority) to the Water Resources Act 1991[^f00031];
  • (e) regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016[^f00032] in respect of a flood risk activity only;
  • (f) the legislation listed in Schedule 3 (legislation to be disapplied) in so far as the provisions still in force are incompatible with the powers contained within this Order; and
  • (g) the provisions of the Neighbourhood Planning Act 2017[^f00033] insofar as they relate to the 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.
  • (2) For the purposes of section 9 (requirement of licence for felling) of the Forestry Act 1967, any felling comprised in the carrying out of any work or operation required for the purposes of the authorised development is deemed to be felling immediately required for the purposes of carrying out development authorised by planning permission granted under the 1990 Act.
  • (3) Regulation 6 of the Hedgerows Regulations 1997[^f00034] is modified so as to read for the purposes of this Order only as if there were inserted after paragraph (1)(j) the following—

or (k) for carrying out development which has been authorised by an order granting development consent pursuant to the Planning Act 2008.

  • (4) Regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012[^f00035] is modified so as to read for the purposes of this Order only as if there were inserted after paragraph 14(1)(a)(ix) the following—

or (x) so far as such work is necessary to implement development which has been authorised by an order granting development consent pursuant to the Planning Act 2008.

  • (5) Notwithstanding 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.

Defence to proceedings in respect of statutory nuisance

7

  • (1) Where proceedings are brought under section 82(1) (summary proceedings by a person aggrieved by statutory nuisance) of the Environmental Protection Act 1990[^f00037] in relation to a nuisance falling within paragraph (g) of section 79(1) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act no order may be made, and no fine may be imposed, under section 82(2) of that Act if—
  • (a) the defendant shows that the nuisance—
  • (i) relates to premises used by the undertaker for the purposes of the authorised development or in connection with the authorised development and that the nuisance is attributable to the construction, maintenance or decommissioning of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), a consent given under section 61 (prior consent for work on construction site) of the Control of Pollution Act 1974, or any document approved under the provisions of Schedule 2 of the Order; or
  • (ii) is a consequence of the construction, maintenance or decommissioning of the authorised development and that it cannot reasonably be avoided; or
  • (b) the nuisance is a consequence of the use of the authorised development and that it cannot be reasonably 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 the premises by the undertaker for purposes of the authorised development, or in connection with the authorised development.

PART 3 — STREETS

Street Works

8

  • (1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 4 (streets subject to street works) and may—
  • (a) break up or open the street, or any sewer, drain or tunnel under it;
  • (b) drill, tunnel or bore under the street;
  • (c) place and keep apparatus under the street;
  • (d) maintain, change the position or remove apparatus under the street;
  • (e) repair, replace or otherwise alter the surface or structure of the street or any culvert under the street; and
  • (f) execute any works required for or incidental to any works referred to in sub-paragraphs (a) to (e).
  • (2) The authority given by paragraph (1) is a statutory right or licence for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.
  • (3) Where the undertaker is not the street authority, the provisions of sections 54 (notice of certain works) to 106 (index of defined expressions) of the 1991 Act apply to any street works carried out under paragraph (1).

Power to alter layout, etc. of streets

9

  • (1) The undertaker may for the purposes of the authorised development, or in connection with the authorised development, alter the layout of or carry out any works in the streets specified in column 2 of the table in Part 1 (permanent alteration of layout) of Schedule 5 (alteration of streets) permanently in the manner specified in relation to that street in column 3.
  • (2) The undertaker may for the purposes of construction or decommissioning of the authorised development, alter the layout of or carry out any works in the streets specified in column 2 of the table in Part 2 (temporary alteration of layout) of Schedule 5 (alteration of streets) temporarily in the manner specified in relation to that street in column 3.
  • (3) Without prejudice to the specific powers conferred by paragraph (1), but subject to paragraphs (4) and (5), the undertaker may, for the purposes of the authorised development, or in connection with the authorised development, alter the layout of any street within the Order limits, and, without limitation on the scope of this paragraph, the undertaker may—
  • (a) alter the level or increase the width of any kerb, footway, cycle track or verge; and
  • (b) make and maintain passing places.
  • (4) The undertaker must restore any street that has been temporarily altered under this Order to the reasonable satisfaction of the street authority.
  • (5) The powers conferred by paragraph (3) may not be exercised without the prior consent of the street authority, such consent to be in a form reasonably required by the street authority.
  • (6) Paragraphs (4) and (5) do not apply where the undertaker is the street authority for a street in which the works are being carried out.
  • (7) Paragraph (5) does not apply if the street authority has already provided detailed design approval pursuant to requirement 6(1) of Schedule 2 (requirements) in relation to a street in which the undertaker seeks to use the powers given by paragraph (3).

Construction and maintenance of altered streets

10

  • (1) The permanent alterations to each of the streets specified in Part 1 (permanent alteration of layout) of Schedule 5 (alteration of streets) to this Order must be completed to the reasonable satisfaction of the street authority, in a form reasonably required by the street authority, and, unless otherwise agreed by the street authority, the alterations must be maintained by and at the expense of the undertaker for a period of 12 months from their completion and from the expiry of that period by and at the expense of the street authority.
  • (2) Subject to paragraph (3), the temporary alterations to each of the streets specified in Part 2 (temporary alteration of layout) of Schedule 5 (alteration of streets) must be completed to the reasonable satisfaction of the street authority, in a form reasonably required by the street authority, and the temporary alterations must be maintained by and at the expense of the undertaker for the duration that the temporary alterations are used by the undertaker for the purposes of construction or decommissioning of the authorised development.
  • (3) Those restoration works carried out pursuant to article 9(4) (power to alter layout, etc. of streets) must be completed to the reasonable satisfaction of the street authority, in a form reasonably required by the street authority, and must be maintained by the undertaker for a period of 12 months from their completion and from the expiry of that period by and at the expense of the street authority.
  • (4) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to 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.
  • (5) For the purposes of a defence under paragraph (4), a court must in particular have regard to the following matters—
  • (a) the character of the street including 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 that the undertaker had arranged for a competent person to carry out or supervise the maintenance of that part of the street to which the action relates unless it is also proved that the undertaker had given that person proper instructions with regard to the maintenance of the street and that those instructions had been carried out.

  • (6) Paragraphs (2) to (5) do not apply where the undertaker is the street authority for a street in which the works are being carried out.

Temporary closure of and permitting vehicular use on public rights of way

11

  • (1) The undertaker may, for the purposes of the authorised development, or in connection with the authorised development, temporarily close, prohibit the use of, restrict the use of, authorise the use of, alter or divert any public right of way and may for any reasonable time—
  • (a) divert the traffic or a class of traffic from the public right of way;
  • (b) authorise the use of motor vehicles on classes of public rights of way where, notwithstanding the provisions of this article, there is otherwise no public right to use motor vehicles; and
  • (c) subject to paragraph (2), prevent all persons from passing along the public right of way.
  • (2) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a public right of way affected by the temporary closure, prohibition, restriction, alteration or diversion of a public right of way under this article if there would otherwise be no such access.
  • (3) Without prejudice to the generality of paragraph (1), the undertaker may temporarily close, prohibit the use of, authorise the use of, restrict the use of, alter or divert—
  • (a) the public rights of way specified in column 2 of the table in Part 1 (public rights of way to be temporarily closed) of Schedule 6 (public rights of way) to the extent specified in column 3 of that table; and
  • (b) the public rights of way specified in column 2 of the table in Part 2 (temporary use of motor vehicles on public right of way) of Schedule 6 (public rights of way) to the extent specified in column 3 of that table.
  • (4) The undertaker must not temporarily close, prohibit the use of, authorise the use of, restrict the use of, alter or divert—
  • (a) any public right of way specified in paragraph (3) without—
  • (i) in relation to the construction of the authorised development only, a construction environmental management plan for the phase of the authorised development in which the public right of way is situated first having been approved under requirement 11; and
  • (ii) in relation to the decommissioning of the authorised development only, a decommissioning environmental management plan for the phase of the authorised development in which the public right of way is situated first having been approved under requirement 18;
  • (b) any other public right of way without the consent of the street authority, and—
  • (i) in relation to the construction of the authorised development only, a construction environmental management plan for the phase of the authorised development in which the public right of way is situated first having been approved under requirement 11; and
  • (ii) in relation to the decommissioning of the authorised development only, a decommissioning environmental management plan for the phase of the authorised development in which the public right of way is situated first having been approved under requirement 18.
  • (5) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
  • (6) Without prejudice to the scope of paragraph (1), the undertaker may use any public right of way which has been temporarily closed under the powers conferred by this article and within the Order limits as a temporary working site.
  • (7) In this article expressions used in this article and in the 1984 Act have the same meaning.

Claimed public right of way

12

  • (1) Subject to the provisions of this article, the undertaker may for the purposes of the authorised development stop up, to an extent that does not exceed the limits of the land shown hatched in green on the claimed rights of way plan, any street situated in whole or in part on the land shown hatched in green on the claimed rights of way plan whether or not that street was in existence or recognised on the definitive map on the date this Order is made.
  • (2) Where a street is stopped up under paragraph (1)—
  • (a) subject to paragraph (3), all public rights of way over or along a street so stopped up are extinguished;
  • (b) subject to paragraph (4), private rights over or along a street so stopped up are extinguished or cease to have effect; and
  • (c) the undertaker may appropriate and use for the purposes of the authorised development so much of the street as is bounded on both sides by land owned by the undertaker.
  • (3) The extinguishment of public rights of way referred to in paragraph (2)(a) will come into effect seven working days after the undertaker serves a notice on the surveying authority giving details of the extent of the stopping up and including a plan showing the extent by which a street referred to in paragraph (1) has been stopped up.
  • (4) The power conferred by paragraph (1) must not be exercised by the undertaker earlier than the date on which the undertaker has acquired an interest in the land comprised in the extent of the street to be stopped up and the provisions of article 23 (private rights) apply to the extinguishment or cessation of any such private rights.
  • (5) A notice referred to in paragraph (3) is deemed to be a legal event for the purposes of section 53(3)(a)(i)[^f00038] of the Wildlife and Countryside Act 1981.
  • (6) This article is subject to article 32 (apparatus and rights of statutory undertakers in stopped up streets).
  • (7) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
  • (8) In this article—
  • “definitive map” has the meaning given to it by section 53(1) of the Wildlife and Countryside Act 1981; and
  • “surveying authority” has the meaning given to it by section 66(1)[^f00039] (interpretation of Part III) of the Wildlife and Countryside Act 1981 .......

Access to works

13

  • (1) The undertaker may, for the purposes of the authorised development and in connection with the authorised development—
  • (a) form and lay out the permanent means of access, or improve existing means of access, in the locations specified in Schedule 7 (access to works); and
  • (b) with the approval of the relevant planning authority after consultation with the highway authority in such a form as reasonably required by the highway authority, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.
  • (2) Paragraph (1)(b) does not apply if the relevant planning authority has already provided detailed design approval pursuant to requirement 6(1) of Schedule 2 (requirements) for the access sought to be formed and lay out pursuant to paragraph (1)(b).

Agreements with street authorities

14

  • (1) A street authority and the undertaker may enter into agreements with respect to—
  • (a) the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order;
  • (b) any stopping up, prohibition, restriction, alteration or diversion of a street authorised by this Order;
  • (c) the undertaking in the street of any of the works referred to in article 8 (street works), article 10(1) (construction and maintenance of altered streets) and article 13 (access to works); or
  • (d) the adoption by a street authority which is the highway authority of works—
  • (i) undertaken on a street which is existing public maintainable highway; or
  • (ii) which the undertaker and highway authority agree to be adopted as public maintainable highway.
  • (2) If such an agreement provides that the street authority must undertake works on behalf of the undertaker the agreement may, without prejudice to the generality of paragraph (1)—
  • (a) make provision for the street authority to carry out any function under this Order which relates to the street in question;
  • (b) specify a reasonable time for the completion of the works; and
  • (c) contain such terms as to payment and otherwise as the parties consider appropriate.

Traffic regulation measures

15

  • (1) Subject to the provisions of this article the undertaker may at any time, in the interests of safety and for the purposes of the authorised development, or in connection with the authorised development—
  • (a) make provision in respect of those lengths of road specified in column 2 of Part 1 of Schedule 8 (traffic regulation measures) imposing the temporary speed limit mentioned in column 3 of that Part of that Schedule;
  • (b) make provision in respect of those lengths of road specified in column 2 of Part 2 of Schedule 8 (traffic regulation measures) temporarily closing that road to the classes of road user specified in column 3 of that Part of that Schedule; and
  • (c) temporarily place traffic signs and signals in the extents of the road specified in column 2 of Part 3 of Schedule 8 (traffic regulation measures) and the placing of those traffic signs and signals is deemed to have been permitted by the traffic authority for the purposes of section 65 of the 1984 Act and the Traffic Signs Regulations and General Directions 2016[^f00040], including, notwithstanding article 3 (development consent etc. granted by this Order), locations outside of the Order limits as shown on the traffic regulation measures plans – temporary measures.
  • (2) Subject to the provisions of this article and without limitation to the exercise of the powers conferred by paragraph (1), the undertaker may make temporary provision for the purposes of the authorised development—
  • (a) as to the speed at which vehicles may proceed along any road;
  • (b) permitting, prohibiting or restricting the stopping, waiting, loading or unloading of vehicles on any road;
  • (c) as to the prescribed routes for vehicular traffic or the direction or priority of vehicular traffic on any road;
  • (d) permitting, prohibiting or restricting the use by vehicular traffic or non-vehicular traffic of any road; and
  • (e) suspending or amending in whole or in part any order made, or having effect as if made, under the 1984 Act.
  • (3) No speed limit imposed by or under this Order applies to vehicles falling within regulation 3(4) of the Road Traffic Exemptions (Special Forces) (Variation and Amendment) Regulations 2011[^f00041] when in accordance with regulation 3(5) of those regulations.
  • (4) Before exercising the power conferred by paragraph (2) the undertaker must—
  • (a) consult with the chief officer of police in whose area the road is situated; and
  • (b) obtain the written consent of the traffic authority.
  • (5) The undertaker must not exercise the powers in paragraph (1) or (2) unless it has—
  • (a) given not less than 4 weeks’ notice in writing of its intention so to do to the chief officer of police and to the traffic authority in whose area the road is situated;
  • (b) not less than 7 days before the provision is to take effect, published the undertaker’s intention to make the provision in one or more newspaper circulating in the area in which any road to which the provision relates is situated; and
  • (c) either—
  • (i) in relation to the construction of the authorised development only, have first obtained approval under requirement 12 for a construction traffic management plan for the phase of the authorised development in relation to which the power conferred by paragraph (1) or (2) is sought to be utilised; or
  • (ii) in relation to the decommissioning of the authorised development only, have first obtained approval under requirement 18 for a decommissioning environmental management plan for the phase of the authorised development in relation to which the power conferred by paragraph (1) or (2) is sought to be utilised.
  • (6) Any provision made under the powers conferred by paragraph (1) or (2) of this article may be suspended, varied or revoked by the undertaker from time to time by subsequent exercise of the powers conferred by paragraph (1) or (2).
  • (7) Any provision made by the undertaker under paragraph (1) or (2)—
  • (a) must be made by written instrument in such form as the undertaker considers appropriate;
  • (b) has effect as if duly made by the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act and the instrument by which it is effected may specify specific savings and exemptions to which the provision is subject; and
  • (c) is deemed to be a traffic order for the purposes of Schedule 7 to the Traffic Management Act 2004[^f00042] (road traffic contraventions subject to civil enforcement).

PART 4 — SUPPLEMENTAL POWERS

Discharge of water

16

  • (1) Subject to paragraphs (3), (4) and (9) the undertaker may use any watercourse or any public sewer or drain for the drainage of water for the purposes of the authorised development, or in connection with 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[^f00043].
  • (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 whose consent may be given subject to 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) Where the undertaker discharges water into, or makes any opening into, a watercourse, public sewer or drain belonging to or under the control of the Environment Agency or Anglian Water, the provisions of Part 5 or Part 6 respectively of Schedule 15 (protective provisions) apply in substitution for the provisions of paragraphs (3) and (4).
  • (6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.
  • (7) The undertaker must take such steps as are reasonably practicable to ensure that water discharged into a watercourse or public sewer or drain pursuant to this article does not enter the public highway.
  • (8) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters requires a licence pursuant to the Environmental Permitting (England and Wales) Regulations 2016[^f00044].
  • (9) In this article—
  • (a) “public sewer or drain” means a sewer or drain which belongs to Homes England, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a National Park 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[^f00045] have the same meaning as in that Act.

Protective works to buildings

17

  • (1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient.
  • (2) Protective works may be carried out—
  • (a) at any time before or during the construction of the authorised development;
  • (b) after the completion of the phase of the authorised development in the vicinity of the building at any time up to the end of the period of five years beginning with the date of final commissioning; and
  • (c) to facilitate or during decommissioning of any part of the authorised development in the vicinity of the building.
  • (3) For the purpose of determining how the rights 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 under this article to a building, 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 (but not any building erected on it).
  • (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), (c) or (d), 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 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 40 (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 five years beginning with the date of final commissioning it appears protective works are inadequate to protect the building against damage caused by the construction or use of that phase of the authorised development,

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

  • (9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 10(2) (compensation for injurious affection) of the 1965 Act.
  • (10) Any compensation payable under paragraph (7) or (8) must be determined, in the case of dispute, under Part 1) (determination of questions of disputed compensation) of the 1961 Act.
  • (11) 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, decommissioning 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 construction, maintenance, decommissioning or use of the authorised development.

Authority to survey and investigate the land

18

  • (1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised development or upon which entry is required in order to carry out monitoring or surveys for the purposes of the authorised development and—
  • (a) survey or investigate the land;
  • (b) without prejudice to the generality of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;
  • (c) without prejudice to the generality of sub-paragraph (a), carry out ecological and archaeological investigations on such land; and
  • (d) 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.
  • (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. If the undertaker proposes to do any of the following, the notice must include details of what is proposed—
  • (a) searching, boring or excavating;
  • (b) leaving apparatus on the land; and
  • (c) taking samples.
  • (3) Any person entering land under this article on behalf of the undertaker—
  • (a) must, if so required before entering the land, produce written evidence of their authority to do so; and
  • (b) may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.
  • (4) No trial holes 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.
  • (5) After completion of the activities being undertaken pursuant to this article, any apparatus must be removed as soon as practicable, and the land must be restored to its original condition.
  • (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 authority conferred by this article, such compensation to be determined, in case of 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, or possession 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.

PART 5 — 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, or as is incidental, to it.
  • (2) This article is subject to article 20 (time limit for exercise of authority to acquire land compulsorily), article 22(2) (compulsory acquisition of rights), article 25 (acquisition of subsoil only), article 28 (rights under or over streets) and article 29 (temporary use of land for constructing the authorised development).

Time limit for exercise of authority to acquire land compulsorily

20

  • (1) After the end of the period of five years beginning on the day on which this Order is made—
  • (a) no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act 1981) 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 24 (application of the 1981 Act).
  • (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 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 land – incorporation of the mineral code

21

Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981[^f00046] are incorporated into this Order subject to the modifications that—

  • (a) for “the acquiring authority” substitute “the undertaker”;
  • (b) for the “undertaking” substitute “authorised development”; and
  • (c) paragraph 8(3) is not incorporated.

Compulsory acquisition of rights

22

  • (1) Subject to paragraph (2), the undertaker may acquire compulsorily such rights over the Order land or impose such restrictive covenants over the Order land as may be required for the purposes of access rights, cable rights and vegetation maintenance rights, by creating them as well as by acquiring rights already in existence.
  • (2) Subject to the provisions of this paragraph, article 23 (private rights) and article 31 (statutory undertakers), in the case of the Order land specified in column 1 of Schedule 9 (land in which only new rights etc. may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such new rights and the imposition of restrictive covenants for the purpose specified in relation to that land in column 2 of that Schedule.
  • (3) Subject to section 8 (other provisions as to divided land) and Schedule 2A (counter-notice requiring purchase of land) of the 1965 Act (as substituted by paragraph 5(8) of Schedule 10 (modification of compensation and compulsory purchase enactments for the creation of new rights and imposition of new restrictive covenants)), where the undertaker creates or acquires an existing right over land or the benefit of a restrictive covenant under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.
  • (4) Schedule 10 (modification of compensation and compulsory purchase enactments for the creation of new rights and imposition of new restrictive covenants) has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of restrictive covenants.
  • (5) In any case where the acquisition of new rights or imposition of a restriction under paragraph (1) or (2) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.
  • (6) The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (5) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.
  • (7) In this article, “access rights”, “cable rights” and “vegetation maintenance rights” have the same meaning as they are defined in Schedule 9 (land in which only new rights etc. may be acquired).

Private rights

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, or of the right, or of the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; or
  • (b) on the date of entry on the land by the undertaker under section 11(1) (power of entry) of the 1965 Act,

whichever is the earliest.

  • (2) Subject to the provisions of this article, all private rights or restrictive covenants over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under article 22 (compulsory acquisition of rights) cease to have effect in so far as their continuance would be inconsistent with the exercise of the right or compliance with the restrictive covenant—
  • (a) as from the date of the acquisition of the right or imposition of the restrictive covenant by the undertaker (whether the right is acquired compulsorily, by agreement or through the grant of a lease of the land by agreement); or
  • (b) on the date of entry on the land by the undertaker under section 11(1) (power of entry) of the 1965 Act in pursuance of the right,

whichever is the earliest.

  • (3) Subject to the provisions of this article, all private rights or restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable, in so far as their continuance would be inconsistent with the purpose for which temporary possession is taken, 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 restrictive covenant under this article is entitled to compensation in accordance with the terms of section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of 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 (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 rights or the imposition of restrictive covenants over or affecting the land;
  • (ii) the undertaker’s appropriation of the land;
  • (iii) the undertaker’s entry onto the land; or
  • (iv) the undertaker’s taking temporary possession of the land,

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

  • (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 an agreement 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,

the agreement is effective in respect of the persons so deriving title, whether that 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, restrictive covenant, 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.

Application of the 1981 Act

24

  • (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 the 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(2) (earliest date for execution of declaration) omit the words from “and this subsection” to the end.
  • (5) Section 5A (time limit for general vesting declaration) is omitted[^f00047].
  • (6) In section 5B(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the 2008 Act, the five year period mentioned in article 20 (time limit for exercise of authority to acquire land compulsorily) of the Mallard Pass Solar Farm Order 2024.”.
  • (7) In section 6 (notices after extension 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 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.
  • (8) In section 7 (constructive notice to treat), in subsection (1)(a) omit the words “(as modified by section 4 of the Acquisition of Land Act 1981)”.
  • (9) In Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—

(2) But see article 25(3) (acquisition of subsoil only) of the Mallard Pass Solar Farm Order 2024, which excludes the acquisition of subsoil only from this Schedule.

  • (10) References to the 1965 Act in the 1981 Act must 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 27 (modification of Part 1 of the Compulsory Purchase Act 1965)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil only

25

  • (1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in paragraph (1) of article 19 (compulsory acquisition of land) or article 22 (compulsory acquisition of rights) 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 land, 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 only—
  • (a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act as modified by Schedule 10 (modification of compensation and compulsory purchase enactments for the creation of new rights and imposition of new restrictive covenants);
  • (b) Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and
  • (c) section 153(4A) (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 factory.

Power to override easements and other rights

26

  • (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) In this article “authorised activity” means—
  • (a) the carrying out of any part of the authorised development;
  • (b) the exercise of any power authorised by this Order; or
  • (c) the use of any land within the Order limits (including the temporary use of land).
  • (3) 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 virtue of a contract.
  • (4) 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 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.
  • (5) 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 (4); and
  • (b) fails to discharge that liability,

the liability is enforceable against the undertaker.

  • (6) 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).

Modification of Part 1 of the Compulsory Purchase Act 1965

27

  • (1) Part 1 of the 1965 Act (compulsory acquisition under Acquisition of Land Act 1981), as applied to this Order by section 125 (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.
  • (2) In section 4A(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the 2008 Act, the five year period mentioned in article 20 (time limit for exercise of authority to acquire land compulsorily) of the Mallard Pass Solar Farm Order 2024.”.
  • (3) In section 11A (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 20 (time limit for exercise of authority to acquire land compulsorily) of the Mallard Pass Solar Farm Order 2024”.
  • (5) In Schedule 2A (counter-notice requiring purchase of land not in notice to treat)—
  • (a) for paragraphs 1(2) and 14(2) substitute—

(2) But see article 25(3) (acquisition of subsoil only) of the Mallard Pass Solar Farm Order 2024, which excludes the acquisition of subsoil 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 article 17 (protective works to buildings), article 29 (temporary use of land for constructing the authorised development) or article 30 (temporary use of land for maintaining the authorised development) of the Mallard Pass Solar Farm Order 2024.

Rights under or over streets

28

  • (1) The undertaker may enter on, appropriate and use 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 appropriated under paragraph (1) 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, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
  • (5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing 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 constructing the authorised development

29

  • (1) The undertaker may, in connection with the construction of the authorised development—
  • (a) enter on and take temporary possession of—
  • (i) so much of the land specified in column (1) of the table in Schedule 11 (land of which temporary possession may be taken) for the purpose specified in relation to the land in column (2) of that table; and
  • (ii) any other Order land in respect of which no notice of entry has been served under section 11 (powers of entry) of the 1965 Act and no declaration has been made under section 4 (execution of declaration) of the 1981 Act;
  • (b) remove any buildings, agricultural plant and apparatus, drainage, fences, debris and vegetation from that land;
  • (c) construct temporary works, haul roads, security fencing, bridges, structures and buildings on that land;
  • (d) use the land for the purposes of a temporary working site with access to the working site in connection with the authorised development;
  • (e) construct any works on that land as are mentioned in Schedule 1 (authorised development); and
  • (f) carry out mitigation works required under the requirements in Schedule 2 (requirements).
  • (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 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.
  • (4) 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 the land referred to in paragraph (1)(a)(i) after the end of the period of one year beginning with the date of final commissioning of the phase of the authorised development for which temporary possession of the land was taken; or
  • (b) in the case of land referred to in paragraph (1)(a)(ii) after the end of the period of one year beginning with the date of final commissioning of the phase of the authorised development for which temporary possession of the land was taken unless the undertaker has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.
  • (5) Unless the undertaker has served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act or otherwise acquired the land or rights over land subject to temporary possession, the undertaker must before giving up possession of land of which temporary possession has been taken under this article, remove all works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—
  • (a) replace any building, structure, drain or electric line removed under this article;
  • (b) remove any drainage works installed by the undertaker under this article;
  • (c) remove any new road surface or other improvements carried out under this article to any street specified in Schedule 4 (streets subject to street works); or
  • (d) restore the land on which any works have been carried out under paragraph (1)(f) insofar as the works relate to mitigation, compensation or enhancement works identified in the environmental statement or required pursuant to the requirements in Schedule 2 (requirements).
  • (6) 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 any power conferred by this article.
  • (7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, must be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
  • (8) 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 carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (6).
  • (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) The undertaker must not compulsorily acquire, acquire new rights over or impose restrictive covenants over, the land referred to in paragraph (1)(a)(i) under this Order.
  • (11) Nothing in this article precludes the undertaker from—
  • (a) creating and acquiring new rights or imposing restrictions over any part of the Order land identified in Schedule 9 (land in which only new rights etc. may be acquired); or
  • (b) acquiring any part of the subsoil of (or rights in the subsoil of) that land under article 25 (acquisition of subsoil only) or any part of the subsoil of or airspace over that land under article 28 (rights under or over streets).
  • (12) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.
  • (13) Nothing in this article prevents the taking of temporary possession more than once in relation to any land that the undertaker takes temporary possession of under this article.

Temporary use of land for maintaining the authorised development

30

  • (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 on 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.

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