(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the undertaker or any licensee to take, use, enter upon or in any manner interfere with any land or rights of any description including any portion of the shore or bed of the sea or any river, channel, creek, bay or estuary—
(a) belonging to His Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;
(b) belonging to His Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or
(c) belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.
(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory purchase of any interest in any Crown land (as defined in section 227 of the 2008 Act) for the time being held otherwise than by or on behalf of the Crown.
(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions, and is deemed to have been given in writing where it is sent electronically.
(1) Subject to the provisions of Schedule 9 (protective provisions), article 29 (compulsory acquisition of rights and imposition of restrictive covenants) and paragraph (2), the undertaker may—
(a) acquire compulsorily, acquire existing rights, create new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and
(b) extinguish the rights of, and remove or reposition apparatus belonging to, statutory undertakers over or within the Order land.
(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—
(a) Part 3 (street works in England and Wales) of the 1991 Act; and
(b) article 42 (apparatus and rights of statutory undertakers in stopped up streets) of this Order.
42 Apparatus and rights of statutory undertakers in stopped up streets
(1) Where a street is stopped up under article 17 (permanent stopping up of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.
(2) Where a street is stopped up under article 17 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—
(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or
(b) provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).
(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—
(a) the execution of the relocation works required in consequence of the stopping up of the street; and
(b) the doing of any other work or thing rendered necessary by the execution of the relocation works.
(4) If in the course of the execution of relocation works under paragraph (2)—
(a) apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.
(5) For the purposes of paragraph (4)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 (street works in England and Wales) of the 1991 Act, but instead—
(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and
(b) the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.
(8) In this article—
“relocation works” means work executed, or apparatus provided, under paragraph (2); and
“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) (interpretation of chapter 1) of the Communications Act 2003.
(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 41 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.
(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 41 (statutory undertakers), any person who is—
(a) the owner or occupier of premises the drains of which communicated with that sewer; or
(b) the owner of a private sewer which communicated with that sewer,
is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.
(3) This article does not have effect in relation to apparatus to which article 42 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.
(4) In this paragraph—
“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003; and
“public utility undertaker” means a gas, water, electricity or sewerage undertaker.
(1) So much of the special category land as is required for the purposes of the exercising by the undertaker of the relevant Order powers will be discharged from all rights, trusts and incidents to which it was previously subject but only in so far as their continuance would be inconsistent with the exercising by the undertaker of the relevant Order powers.
(2) So far as the temporary use of land under article 38 (temporary use of land for carrying out the authorised development) is concerned, then the discharge in paragraph (1) is only for such time as the land is being used under that article.
(3) In this article—
“relevant Order powers” means the rights and powers exercisable over the special category land by the undertaker under article 29 (compulsory acquisition of rights and imposition of restrictive covenants) and article 38 (temporary use of land for carrying out the authorised development);
“special category land” means the land identified as forming part of a common, open space, or fuel or field allotment in the book of reference subject to compulsory acquisition and shown on the plan entitled “special category land plans”; and
“special category land plans” means the document of that description for the purposes of this Order.
Nothing in this Order is to prejudice the operation of, and the exercise of powers and duties of the undertaker, a statutory undertaker or the Secretary of State under the 1980 Act, the 1991 Act, the 2008 Act and the Town and Country Planning (General Permitted Development) (England) Order 2015.
(1) This article applies to—
(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and
(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,
so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.
(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.
(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—
(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;
(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or
(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.
47 Operational land for purposes of the Town and Country Planning Act 1990
Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as not operational land for the purposes of that Act) of the 1990 Act.
48 Defence to proceedings in respect of statutory nuisance
(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990 in relation to a nuisance falling within paragraph (d), (g) and (ga) of section 79(1) (statutory nuisances and inspection therefor) of that Act no order is to 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 or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) of the Control of Pollution Act 1974; or
(ii) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
(b) the defendant shows that the nuisance is a consequence of the use or operation of the authorised development and that it cannot reasonably be avoided.
(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.
(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents set out in Schedule 10 (documents to be certified) to the Secretary of State for certification as true copies of those plans and documents.
(2) Where any plan or document set out in Schedule 10 is required to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).
(3) A plan or document so certified will be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a) by post;
(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c) with the consent of the recipient and subject to paragraphs (5) to (8) by electronic transmission.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978 as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—
(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and
(b) in any other case, the last known address of that person at the time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—
(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and
(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement will be taken to be fulfilled only where—
(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;
(b) the notice or document is capable of being accessed by the recipient;
(c) the notice or document is legible in all material respects; and
(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.
(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender will provide such a copy as soon as reasonably practicable.
(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).
(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—
(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and
(b) such revocation will be final and will take effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.
(9) This article will not be taken to exclude the employment of any method of service not expressly provided for by it.
(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.
52 Disapplication and modification of legislative provisions
(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 32 (variation of awards) of the Land Drainage Act 1991; and
(b) the provisions of any byelaws made under, or having effect as if made under, paragraph 5, 6 or 6A of Schedule 25 (bye-law making powers of the appropriate agency) to the Water Resources Act 1991;
(2) The provisions of the Neighbourhood Planning Act 2017, insofar as they relate to temporary possession of land under articles 38 (temporary use of land for carrying out the authorised development) and 39 (temporary use of land for maintaining the authorised development) of this Order, 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 of the authorised development and, within the maintenance period defined in article 39(13) (temporary use of land for maintaining the authorised development), any maintenance of any part of the authorised development.
(3) The provisions of the Traffic Management (Coventry City Council) Permit Scheme Order 2014 will not have effect in relation to any “works” or “urgent activities or works” (as those terms are defined in that Order) which are required for the carrying out of the authorised development.
(4) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 of the Community Infrastructure Levy Regulations 2010 any building comprised in the authorised development is 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.
(1) The following local enactments and local byelaws, and any byelaws or other provisions made under any of those enactments or byelaws, are hereby excluded and do not apply insofar as inconsistent with a provision, of or a power conferred by, this Order—
(a) sections 32, 33, 37, 57, 77, 78, 79, 80, 81, 82, 83, 84 and 85 of the Trent Valley Railway Act 1845;
(b) sections 40 and 42 of the Coventry Gas Act 1856;
(c) byelaw of Coventry City Council in relation to the destruction of Ferns and other Plants 1930;
(d) byelaws 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 25, 29, 30 and 31 of Coventry City Council in relation to Pleasure Grounds 1931;
(e) byelaws 1 to 55 of Coventry City Council in relation to the Water Undertaking 1950;
(f) byelaws 12, 13, 17, 18, 21 and 30 of Coventry City Council in relation to the Good Rule and Government of the City of Coventry 1953;
(g) byelaws 7, 25, 29, 34 and 39 of Rugby District Council in relation to the Good Rule and Government and for the Prevention of Nuisances 1934;
(h) byelaws 1 to 14 of Rugby District Council in relation to the Good Rule and Government and for the Prevention of Nuisances 1938; and
(i) byelaws 1 and 2 of Rugby District Council in relation to the Good Rule and Government and for the Prevention of Nuisance 1959.
(2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and insofar as (in particular)—
(a) it would make it an offence to take action, or not to take action, in pursuance of a power conferred by this Order;
(b) action taken in pursuance of a power conferred by this Order would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or
(c) action taken in pursuance of a power or duty under the provisions would interfere with the exercise of any work authorised by this Order.
(3) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker or by virtue of this Order would amount to a contravention of a statutory provision of local application, the undertaker must as soon as reasonably practicable, and at any rate within 14 days of receipt of the notice, respond in writing setting out—
(a) whether the undertaker agrees that the action taken or proposed does or would contravene the provision of local application;
(b) if the undertaker does agree, the grounds (if any) on which the undertaker believes that the provision is excluded by this article; and
(c) the extent of that exclusion.
Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract, or any rule of law, or under two or more different provisions of this Order.
(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.
(2) This article does not apply to any matter for which the consent or approval of the Secretary of State is required under any provision of this Order.
Articles 2 and 3
The authorised development comprises a nationally significant infrastructure project as defined in sections 14 and 22 of the 2008 Act and associated development, as defined in section 115(2) of the 2008 Act, comprising—
In the administrative areas of Coventry City Council and Rugby Borough Council
The Works are situated as follows—
(a) in respect of—
(i) the whole of Work Nos. 1G, 1L, 1M, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I , 3B and 4A,
(ii) part of Work Nos. 1B, 1C, 1D and 2A,
in the administrative area of Coventry City Council; and
(b) in respect of—
(i) the whole of Work Nos. 1A, 1E, 1F, 1H, 1I, 1J, 1K, 3A and 3C,
(ii) part of Work Nos. 1B, 1C, 1D and 2A,
in the administrative area of Rugby Borough Council.
Work No. 1A — Improvement and realignment of the existing A46 northbound and southbound carriageway, as shown on sheets 1, 2, 4 and 5 of the works plans, and including—
(a) realignment and new construction along a length of 880 metres, commencing at a location situated 80 metres north of the existing Brinklow Road underbridge and terminating at a location situated 12 metres south of the existing Hungerley Hall Farm accommodation overbridge as shown between reference points 1/2 on sheet 1 and 1/15 on sheet 2 of the rights of way and access plans;
(b) cross-section widening along the A46 and provision of connection to new slip roads from 12 metres south of Hungerley Hall Farm accommodation overbridge, 900 metres in length, as shown between reference points 1/15 on sheet 2 and 1/7 on sheet 4 of the rights of way and access plans; and
(c) placement of 50mph Speed Limit Terminal signs, as shown between reference point 1/2 on sheet 1 and point 1/8 of sheet 5 of the traffic regulation plans.
Work No. 1B — A new A46 Walsgrave overbridge comprising of single span, 30 metres in length, carrying the new dumb-bell link road connecting the two new roundabouts (Work Nos. 1G and 1H) of the new A46 Walsgrave grade separated junction, as shown on sheet 4 of the works plans.
Work No. 1C — A new northbound off-slip, 264 metres in length, commencing at a location situated 128 metres north of the existing Hungerley Hall Farm accommodation overbridge and continuing northwest until the new circulatory carriageway of western roundabout (Work No. 1G), as shown on sheet 4 of the works plans.
Work No. 1D — A new northbound on-slip, 290 metres in length, commencing from the new circulatory carriageway of western roundabout (Work No. 1G) and continuing northeast to merge with the existing A46, as shown on sheet 4 of the works plans.
Work No. 1E — A new southbound off-slip, 294 metres in length, commencing at a location situated 460 metres south of the existing Farber Road overbridge and continuing southeast until the new circulatory carriageway of eastern roundabout (Work No. 1H), as shown on sheet 4 of the works plans.
Work No. 1F — A new southbound on-slip, 274 metres in length, commencing from the new circulatory carriageway of eastern roundabout (Work No. 1H) and continuing southwest to merge with the existing A46, as shown on sheet 4 of the works plans.
Work No. 1G — New roundabout to the west of the A46 providing connection between the existing A46 and realigned B4082, as shown on sheet 4 of the works plans.
Work No. 1H — New roundabout to the east of the A46 providing connection between the existing A46 and realigned B4082, as shown on sheet 4 of the works plans.
Work No. 1I — New maintenance layby, 110 metres in length, constructed along the A46 northbound carriageway located north of the northbound off-slip (Work No. 1C) and south of the northbound on-slip (Work No. 1D), as shown on sheet 4 of the works plans.
Work No. 1J — A new gantry, or similar signage, over the A46 northbound carriageway, at a location situated 28 metres south of the new single span overbridge (Work No. 1B), as shown on sheet 4 of the works plans.
Work No. 1K — Removal and reinstatement of existing environmental bund situated southeast of the realigned A46 (Work No. 1A), from south of the existing Smite Brook culvert for up to 150 metres in length, as shown on sheet 2 of the works plans.
Work No. 1L — A new northern pond, together with associated drainage facilities including a new outfall, situated at a location west of Work No. 1A and south of Work No. 4A, as shown on sheet 4 of the works plans.
Work No. 1M — A new northern pond access, 810 metres in length, commencing at its junction with the private means of access (Work No. 2C) and circulating around Work No. 1L, as shown on sheets 2 and 4 of the works plans.
Work No. 2A — Realignment, improvement and new construction of the B4082 road, as shown on sheets 2, 3 and 4 of the works plans including—
(a) the construction of a new section of highway with two-way single carriageway commencing at a location situated 240 metres east of the existing Clifford Bridge Road roundabout, running generally northwards parallel to the A46, passing between Hungerley Hall Farm buildings and the existing A46 before connecting to the new western roundabout (Work No. 1G) of the new A46 Walsgrave grade separated junction, with a total length of 894 metres as shown on sheets 3 and 4 of the works plans; and
(b) placement of 40mph Speed Limit Repeater signs along B4082, as shown between reference point 2/11 on sheet 3 and point 2/8 of sheet 4 of the traffic regulation plans.
Work No. 2B — A new private means of access, 34 metres in length, commencing from a new junction with the realigned B4082 road (Work No. 2A) and terminating at Hungerley Hall Farm accommodation overbridge, as shown on sheet 2 of the works plans.
Work No. 2C — A new private means of access, 118 metres in length, commencing at a new junction with the realigned B4082 road (Work No. 2A) and terminating at Hungerley Hall Farm buildings, as shown on sheet 2 of the works plans.
Work No. 2D — A new central pond, together with associated drainage facilities including a new outfall, situated at a location between Work No. 1A and Work No. 2A, as shown on sheet 4 of the works plans.
Work No. 2E — A new southern detention basin, together with associated drainage facilities, situated at a location to the northeast of Work No. 2A, as shown on sheet 3 of the works plans.
Work No. 2F — A new central pond access, 393 metres in length, commencing at its junction with the realigned B4082 (Work No. 2A) and circulating around Work No. 2D, as shown on sheet 4 of the works plans.
Work No. 2G — A new southern detention basin access, 283 metres in length, commencing at a location approximately 140 metres from the existing Clifford Bridge Road roundabout and circulating around Work No. 2E, as shown on sheet 3 of the works plans.
Work No. 2H — A new ditch along the western side of the B4082 commencing from north of Work No. 2C and terminating adjacent to Work No. 1D, as shown on sheets 2 and 4 of the works plans.
Work No. 2I — A new signalised pedestrian crossing situated 20 metres east of the existing Clifford Bridge Road roundabout, as shown on sheet 3 of the works plans and the extension of existing footway between points 2/7 and 2/10 and points 2/12 and 2/13, as shown on sheet 3 of the rights of way and access plans.
Work No. 3A — Habitat creation including areas of woodland planting of native species, as shown on sheet 2 of the works plans.
Work No. 3B — A new badger crossing, as shown on sheet 4 of the works plans.
Work No. 3C — Reinstatement of existing timber fence where required and vegetation removal, as shown on sheet 2 of the works plans.
Work No. 4A — A temporary construction compound, as shown on sheet 4 of the works plans.
Other associated development
For the purposes of or in connection with the construction of any of the works and other development mentioned above, ancillary or related development within the Order limits which does not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement, consisting of—
(a) alteration to the layout of any street permanently or temporarily, including but not limited to—
(i) increasing or reducing the width of the carriageway of any street by reducing or increasing the width of any kerb, footpath, footway, cycle track or verge within the street; and
(ii) altering the level of any such kerb, footpath, footway, cycle track or verge;
(b) works required for the strengthening, improvement, protection, repair, maintenance or reconstruction of any street;
(c) the strengthening, alteration, refurbishment, or demolition of any building or highway bridge or structure;
(d) the remediation of any carriageway made redundant by the stopping up of any highway or means of access;
(e) ramps, means of access (including private means of access), non-motorised links, footpaths, footways, bridleways, cycle tracks and crossing facilities;
(f) embankments, cuttings viaducts, bridges, aprons, abutments, shafts, foundations, retaining walls, barriers (including road restraint, safety barriers), parapets, wing walls, new and replacement highway lighting, roadside signage, fencing and drainage works (including carrier drains, filter drains, outfalls, culvert headwalls, ditches, attenuation earthwork ditches, soakaways, pollution control devices and catch pits);
(g) the erection of highway boundary fencing, including gates, anti-dazzle fencing and the realignment of existing highway fencing;
(h) settlement monitoring and mitigation measures for the benefit or protection of, or in relation to, any land, building or structure, including monitoring and safeguarding of existing infrastructure, utilities and services affected by the authorised development;
(i) street works, including—
(i) breaking up or opening up a street, or any sewer, drain or tunnel under it; and
(ii) tunnelling or boring under a street;
(j) processing, deposition or use of excavated materials;
(k) works to place, alter, divert, relocate, protect, maintain, decommission or remove street furniture, apparatus, services, plant, traffic signals and other equipment in a street, or in other land, including mains, sewers, drains, tanks, pipes, hydrants, cables, ducts and associated cabinets, connections, conduits, CCTV, radar, traffic detection equipment and lights;
(l) works to alter the course of or otherwise interfere with a watercourse;
(m) landscaping, environmental and noise barriers, works associated with the provision of ecological mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;
(n) works for the benefit or protection of land and apparatus affected by the authorised development;
(o) site preparation works, including—
(i) site clearance (including fencing, vegetation removal, demolition of existing structures and the creation of alternative footpaths);
(ii) earthworks (including soil stripping and storage, site levelling); and
(iii) remediation of contamination;
(p) the felling of trees and hedgerows;
(q) the establishment of construction compounds and working sites, storage areas, temporary vehicle parking, construction fencing, hoarding and perimeter enclosure, security fencing, construction-related buildings, welfare facilities, for vehicles recovery crew, vehicle recovery, construction lighting, haulage roads, protective works to apparatus, and other buildings, machinery, apparatus, works and conveniences;
(r) ground investigation works and remedial work in respect of any contamination or other adverse ground condition, including the installation and monitoring of associated apparatus;
(s) the provision of other works including pavement works, carriageway surfacing, kerbing and paved areas works, signing, signals, modification or demolition of existing gantries, new and replacement highway safety barriers, road markings, traffic management measures including temporary roads, temporary earthworks and construction site accesses and such other works as are associated with the construction of the authorised development;
(t) pumping for the purposes of dewatering excavations and the management of surface water flows and temporary storage, settlement and treatment of surface water flows;
(u) removal of surfaces for closed or redundant carriageways, accesses or streets; and
(v) such other works, working sites storage areas, works of demolition or works of whatever nature, as may be necessary or expedient for the purposes of, or for purposes associated with or ancillary to, the construction, operation and maintenance of the authorised development.
Article 3
PART 1 REQUIREMENTS
Interpretation
1 In this Schedule—
“completion or completed” means the relevant parts of the authorised development are completed and fully open to traffic;
“contaminated land” has the same meaning as that term is given in section 78A of the Environmental Protection Act 1990;
“DMRB” means the Design Manual for Roads and Bridges, which accommodates all current standards, advice and other documents relating to the design, assessment and operation of trunk roads and motorways, or any equivalent replacement to the DMRB published;
“First Iteration EMP” means the first iteration of the environmental management plan produced in accordance with the DMRB during the preliminary design stage listed in Schedule 10 (documents to be certified) and certified as the First Iteration EMP by the Secretary of State for the purposes of this Order;
“Second Iteration EMP” means the second iteration of the environmental management plan produced in accordance with the DMRB which is to be a refined version of the First Iteration EMP including more detailed versions of the outline plans and method statements contained or listed within the First Iteration EMP or any other plans required;
“Third Iteration EMP” means the third iteration of the environmental management plan produced in accordance with the DMRB containing detailed plans relating to the operational and maintenance phase of the authorised development substantially in accordance with the First Iteration EMP and Second Iteration EMP; and
“REAC” means the register of environmental actions and commitments contained in the First Iteration EMP.
Time limits
2 The authorised development must commence no later than the expiration of 5 years beginning with the date that this Order comes into force.
Detailed design
3 (1) The authorised development must be designed in detail and carried out so that it is compatible with the preliminary scheme design shown on the engineering drawings and sections unless otherwise agreed in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority and relevant highway authority on matters related to its functions, provided that the Secretary of State is satisfied that any amendments to the engineering drawings and sections showing departures from the preliminary scheme design would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(2) Where amended details are approved by the Secretary of State under sub-paragraph (1), those details are deemed to be substituted for the corresponding engineering drawings and sections and the undertaker must make those amended details available online for inspection by members of the public.
Second Iteration EMP
4 (1) No part of the authorised development is to commence until the Second Iteration EMP for that part, substantially in accordance with the First Iteration EMP, has been submitted to and approved in writing by the Secretary of State—
(a) following consultation with the relevant planning authority; and
(b) in respect of the final landscaping proposals and final mitigation measures insofar as they affect the setting of Coombe Abbey Park RPG, following consultation with Historic England.
(2) The Second Iteration EMP for a part must be produced in accordance with DMRB and so far as is relevant to that part of the authorised development, must reflect the mitigation measures required by the REAC and set out in the environmental statement and must include the following management plans ... and method statements as are applicable to the part of the authorised development to which it relates—
(a) Carbon Management Plan;
(b) Construction Air Quality and Dust Management Plan;
(c) Construction Communication Strategy;
(d) Construction Noise and Vibration Management Plan;
(e) Detailed Historical Building Recording Written Scheme of Investigation;
(f) Invasive Non-native Species Management Plan;
(g) Landscape and Ecology Management Plan;
(h) Materials Management Plan;
(i) Operational Unexploded Ordnance Emergency Response Plan;
(j) Site Waste Management Plan;
(k) Soil Handling Management Plan;
(l) Water Monitoring and Management Plan;
(m) Unexpected Archaeological Finds Protocol;
(n) Traffic Management Plan;
(o) Scheme Asbestos Management Plan;
(p) Pollution Incident Control Plan; and
(q) Ornithological Noise Monitoring at Coombe Pool SSSI Method Statement.
(3) The authorised development must be carried out in accordance with the Second Iteration EMP.
Third Iteration EMP
5 (1) Following completion of construction of the authorised development the Third Iteration EMP must be submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority.
(2) The authorised development must be carried out in accordance with the Third Iteration EMP.
Landscaping
6 (1) No part of the authorised development is to come into use until a landscaping scheme for that part has been submitted to and approved in writing by the Secretary of State following consultation with the relevant planning authority on matters related to its functions.
(2) The landscaping scheme for each part must reflect the relevant mitigation measures set out in the First Iteration EMP and the landscaping principles set out in the environmental masterplan.
(3) The authorised development must be landscaped in accordance with the approved landscaping scheme for that part.
(4) The landscaping scheme prepared under sub-paragraph (1) must include details of—
(a) location, number, species mix, size and planting density of any proposed planting;
(b) cultivation, importing of materials and other operations to ensure plant establishment;
(c) existing trees to be retained, with measures for their protection during the construction period;
(d) proposed finished ground levels;
(e) implementation timetables for all landscaping works; and
(f) measures for the replacement, in the first available planting season, of any tree or shrub planted as part of the landscaping scheme that, within a period of 5 years after the completion of the part of the authorised development to which the relevant landscaping scheme relates, dies, becomes seriously diseased or is seriously damaged.
(5) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.
(6) In this paragraph, “environmental masterplan” means the document of that description listed in Schedule 10 (documents to be certified) certified by the Secretary of State as the environmental masterplan for the purposes of this Order.
Contaminated land and groundwater
7 (1) In the event that contaminated land, including groundwater, is found at any time when carrying out the authorised development which was not previously identified in the environmental statement, it must be reported as soon as reasonably practicable to the Secretary of State, the relevant planning authority and the Environment Agency, and the undertaker must complete a risk assessment of the contamination in consultation with the relevant planning authority and the Environment Agency.
(2) Where the risk assessment prepared in accordance with sub-paragraph (1) determines that remediation of the contaminated land is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose must be submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority on matters related to its function and the Environment Agency.
(3) Remediation must be carried out in accordance with the approved scheme.
Protected species
8 (1) In the event that any protected species which were not previously identified in the environmental statement or nesting birds are found at any time when carrying out the authorised development the undertaker must—
(a) cease the relevant parts of the relevant works and report it immediately to the Ecological Clerk of Works;
(b) follow the advice of the Ecological Clerk of Works; and
(c) implement the protected species method statement referred to in the First Iteration EMP Appendix A REAC.
(2) The undertaker must implement the method statement referred to in paragraph (1)(c) immediately and construction in the relevant area must not recommence until any necessary licences are obtained to enable mitigation measures to be implemented.
(3) In this paragraph, “Ecological Clerk of Works” means the individual appointed as such by the undertaker.
Surface and foul water drainage
9 (1) No part of the authorised development is to commence until for that part written details of the surface water drainage system, reflecting the relevant mitigation measures set out in the REAC including means of pollution control, have been submitted and approved in writing by the Secretary of State following consultation by the undertaker with the relevant planning authority, the lead local flood authority, Environment Agency, relevant highway authority and, insofar as it relates to the Coombe Pool SSSI, Natural England, on matters related to their functions.
(2) The surface water drainage system must be constructed in accordance with the approved details referred to in sub-paragraph (1), unless otherwise agreed in writing by the Secretary of State following consultation by the undertaker with the relevant planning authority, the lead local flood authority and Environment Agency on matters related to their functions, provided that the Secretary of State is satisfied that any amendments to the approved details would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
Archaeological remains
10 (1) No part of the authorised development is to commence until a Historical Building Recording Written Scheme of Investigation has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority to the extent that it relates to matters relevant to its functions.
(2) The authorised development must be carried out in accordance with the scheme referred to in sub-paragraph (1).
Traffic management
11 (1) No part of the authorised development comprising the construction, alteration or improvement of the A46 is to commence until a traffic management plan for that part has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant highway authority on matters related to its function.
(2) The traffic management plan prepared under sub-paragraph (1) must be substantially in accordance with the Outline Traffic Management Plan and reflect the relevant mitigation measures set out in the REAC.
(3) The authorised development must be constructed in accordance with the traffic management plan referred to in sub-paragraph (1).
(4) In this paragraph, “Outline Traffic Management Plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the outline traffic management plan by the Secretary of State for the purposes of this Order.
Fencing
12 Any permanent and temporary fencing and other means of enclosure for the authorised development, except noise barriers, must be constructed and installed in accordance with the Manual of Contract Documents for Highway Works maintained by or on behalf of the undertaker except where any departures from that manual are agreed in writing by the Secretary of State in connection with the authorised development, following consultation by the undertaker with the relevant highways authority to the extent that it relates to matters relevant to its function.
Flood risk assessment
13 (1) The undertaker must consider the Flood Risk and Coastal Erosion Risk Data published quarterly by the Environment Agency in its flood risk assessment, in consultation with the Environment Agency and the relevant lead local flood authority.
(2) The undertaker must carry out the authorised development in accordance with the flood risk assessment.
(3) In this paragraph, “flood risk assessment” means the document described as “Environmental statement Appendix 13.1” in Schedule 10 (documents to be certified) and certified by the Secretary of State as the flood risk assessment for the purposes of this Order.
Pre-commencement works
14 (1) Any pre-commencement works must be carried out in accordance with the pre-commencement plan.
(2) In this paragraph—
“pre-commencement plan” means the document of that description listed in Schedule 10 certified by the Secretary of State as the pre-commencement plan for the purposes of this Order; and
“pre-commencement works” means the works described as such in the Pre-Commencement Plan.
Approvals and amendments to approved details
15 With respect to any requirement which requires the authorised development to be carried out in accordance with the details or schemes approved under this Schedule, the approved details or schemes are taken to include any amendments that may subsequently be approved in writing by the Secretary of State.
PART 2 PROCEDURE FOR DISCHARGE OF REQUIREMENTS
Applications made under requirements
16 (1) Where an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order, the Secretary of State must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—
(a) the day immediately following that on which the application is received by the Secretary of State;
(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 17 (further information); or
(c) such longer period as may be agreed between the undertaker and the Secretary of State.
(2) Subject to sub-paragraph (3), in the event that the Secretary of State does not determine an application within the period set out in sub-paragraph (1), the Secretary of State is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.
(3) Where—
(a) an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement included in this Order;
(b) the Secretary of State does not determine such application within the period set out in sub-paragraph (1); and
(c) the application is accompanied by a report from a body required to be consulted by the undertaker under the requirement that considers it likely that the subject matter of the application would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,
the application is taken to have been refused by the Secretary of State at the end of that period.
Further information
17 (1) In relation to any part of an application made under this Schedule, the Secretary of State has the right to request such further information from the undertaker as is necessary to enable the Secretary of State to consider the application.
(2) In the event that the Secretary of State considers such further information to be necessary the Secretary of State must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates.
(3) In the event that the Secretary of State does not give such notification within that 21 business day period the Secretary of State is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.
(4) Where further information is requested under this paragraph in relation to only part of an application, that part is treated as separate from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 16 (applications made under requirements) and in this paragraph.
(5) In this paragraph, “business day” means a day other than Saturday or Sunday, which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971.
Register of requirements
18 (1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in a form suitable for inspection by members of the public an online register of the documents to be certified under Schedule 10 and those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the Secretary of State.
(2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the Secretary of State has been applied for or given, providing an electronic link to any document containing any approved details.
(3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.
Anticipatory steps towards compliance with any requirement
19 If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.
Details of consultation
20 (1) In relation to any provision of this Schedule requiring details to be submitted to the Secretary of State for approval following consultation by the undertaker with another party, the undertaker must provide such other party with not less than 28 days for any response to the consultation and thereafter the details submitted to the Secretary of State for approval must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted including copies of any representations made by a consultee about the proposed application and the undertaker’s response to those representations.
(2) Promptly after submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to in sub-paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.
SCHEDULE 3 PERMANENT STOPPING UP OF HIGHWAYS AND PRIVATE MEANS OF ACCESS & PROVISION OF NEW HIGHWAYS AND PRIVATE MEANS OF ACCESS
Article 17
PART 1 HIGHWAYS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED
(1) Highway to be stopped up | (2) Extent of stopping up | (3) New highway to be provided
A46 at the approach to and through the at-grade roundabout | Existing section of public road to be stopped up between point 1/W and, point 1/Z and between point 1/X, point 2/Z and point 1/Y, as shown on sheet 2 of the rights of way and access plans. | A new and altered existing road (Work No. 1A) between point 1/2 and point 1/7, as shown on sheets 1, 2 and 4 of the rights of way and access plans.
B4082 at the approach to at-grade roundabout | Existing section of public road to be stopped up between point 2/Y and point 2/Z, as shown on sheets 2 and 3 of the rights of way and access plans. | A new road (Work No. 2A) between point 2/1 and point 2/8, as shown on sheets 2, 3 and 4 of the rights of way and access plans.
PART 2 PRIVATE MEANS OF ACCESS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED
(1) Private means of access to be stopped up | (2) Extent of stopping up | (3) New private means of access to be substituted or provided
Private means of access from Hungerley Hall Farm accommodation overbridge towards Hungerley Hall Farm buildings | Existing private means of access to be stopped up between point 2/W and point 2/X, as shown on sheet 2 of the rights of way and access plans. | A new access is to be provided between point 2/2 and point 2/3 and between point 2/4 and point 2/5, along Work Nos. 2B and 2C, as shown on sheet 2 of the rights of way and access plans.
Articles 18 and 19
PART 1 TRUNK ROADS
(1) Highway | (2) Extent
A46 | Between point 1/1 and point 1/8 as shown on sheets 1, 2, 4 and 5 of the classification of roads plans
A46 Northbound off-slip | Between point 1/3 and point 1/4 as shown on Sheet 4 of the classification of roads plans
A46 eastern roundabout | From point 1/4 as shown on Sheet 4 of the classification of roads plans
A46 Northbound on-slip | Between point 1/5 and point 1/6 as shown on Sheet 4 of the classification of roads plans
A46 Southbound off-slip | Between point 1/9 and point 1/10 as shown on Sheet 4 of the classification of roads plans
A46 western roundabout | From point 1/10 as shown on Sheet 4 of the classification of roads plans
A46 Southbound on-slip | Between point 1/11 and point 1/12 as shown on Sheet 4 of the classification of roads plans
A46 Dumb-bell Link road | Between point 1/13 and point 1/14 as shown on Sheet 4 of the classification of roads plans
PART 2 CLASSIFIED ROADS
(1) Area | (2) Length of road
Coventry City Council | B4082 Between point 2/11 and point 2/8 as shown on sheets 2, 3 and 4 of the classification of roads plans
PART 3 FOOTWAYS
(1) Parish | (2) Length of footway
Wyken Parish | Extension of existing footway by 16 metres on the northern side of the B4082 between points 2/7 to 2/10, as shown on sheet 3 of the rights of way and access plans
Wyken Parish | Extension of existing footway by 16 metres on the south side of the B4082 between points 2/12 to 2/13, as shown on sheet 3 of the rights of way and access plans
PART 4 PRIVATE MEANS OF ACCESS
(1) Road | (2) Extent
Access track (Work No. 2C) | Between point 2/2 and point 2/3, as shown on sheet 2 of the rights of way and access plans
Access track (Work No. 2B) | Between point 2/4 and point 2/5 as shown on sheet 2 of the rights of way and access plans
Maintenance access (Work No. 1M) | A private access, 810 metres in length, commencing at point 2/14, circulating around the northern pond (Work No. 1L) and terminating at point 2/14, as shown on sheets 2 and 4 of the rights of way and access plans
Maintenance access (Work No. 2F) | A private access, 393 metres in length, commencing at point 2/6, circulating around the central pond (Work No. 2D) and terminating at point 2/6, as shown on sheet 4 of the rights of way and access plans
Maintenance access (Work No. 2G) | A private access, 283 metres in length, commencing at point 2/9, circulating around the southern detention basin (Work No. 2E) and terminating at point 2/9, as shown on sheet 3 of the rights of way and access plans
PART 5 SPEED LIMITS
(1) Road name and number | (2) Extent | (3) Speed Limit
A46 | The length of existing A46 northbound and southbound between point 1/1 and point 1/2 as shown on sheet 1 of the traffic regulation plans | National Speed Limit
A46 | The length of the realigned A46 northbound and southbound between point 1/2 and point 1/8 as shown on sheets 1, 2, 4 and 5 of the traffic regulation plans | 50 mph Speed Limit
A46 Northbound off-slip | Along the length of the new slip road, from its diverge from the A46 northbound carriageway for a total distance of 260 metres between point 1/3 and point 1/4 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
A46 eastern roundabout | Around the new roundabout at point 1/4 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
A46 Northbound on-slip | Along the length of the new slip road, from new western roundabout junction for a total distance of 290 metres between point 1/5 and point 1/6 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
A46 Southbound off-slip | Along the length of the new slip road, from its diverge from the A46 southbound carriageway for a total distance of 290 metres between point 1/9 and point 1/10 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
A46 western roundabout | Around the new roundabout at point 1/10 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
A46 Southbound on-slip | Along the length of the new slip road, from new eastern roundabout junction for a total distance of 270 metres between point 1/11 and point 1/12 as shown on sheet 4 of the traffic regulation plans | 50 mph Speed Limit
B4082 | New B4082 link road for a total distance of 894 metres between point 2/11 and point 2/8 as shown on sheets 2, 3 and 4 of the traffic regulation plans | 40 mph Speed Limit
PART 6 TRAFFIC REGULATION MEASURES (CLEARWAYS)
(1) Road name and number | (2) Extent of Regulation | (3) Measures
A46 | The whole length of the realigned A46 northbound and southbound between point 1/1 and point 1/8 as shown on sheets 1, 2, 4 and 5 of the traffic regulation plans | Clearway (to include verge and hard strips)
A46 Northbound off-slip | Along the length of the new slip road, from its diverge from the A46 northbound carriageway for a total distance of 260 metres between point 1/3 and point 1/4 as shown on sheet 4 of the traffic regulation plans | Clearway (to include verge and hard strips)
A46 Northbound on-slip | Along the length of the new slip road, from new western roundabout junction for a total distance of 290 metres between point 1/5 and point 1/6 as shown on sheet 4 of the traffic regulation plans | Clearway (to include verge and hard strips)
A46 Southbound off-slip | Along the length of the new slip road, from its diverge from the A46 southbound carriageway for a total distance of 290 metres between point 1/9 and point 1/10 as shown on sheet 4 of the traffic regulation plans | Clearway (to include verge and hard strips)
A46 Southbound on-slip | Along the length of the new slip road, from new eastern roundabout junction for a total distance of 270 metres between point 1/11 and point 1/12 as shown on sheet 4 of the traffic regulation plans | Clearway (to include verge and hard strips)
Articles 24 and 25
PART 1 REMOVAL OF HEDGEROWS
(1) Reference No. (location of hedgerow) | (2) Work to be carried out | (3) Relevant part of the authorised development | (4) Important hedgerow
H2 (Running parallel to and to the north of the B4082 and west of the A46) as shown on sheets 2, 3 and 4 of the hedgerow and trees plans | Partial removal | Work Nos. 1A, 1B, 1C, 1D, 1M, 2A, 2B, 2H | No
H3 (Between A46 and Hungerley Hall Farm) as shown on sheet 2 of the hedgerow and trees plans | Removal | Work No. 2A | No
H4 (South-west of Hungerley Hall Farm) as shown on sheet 2 of the hedgerow and trees plans | Partial removal | Work No. 2A | No
H5 (North-west of Hungerley Hall Farm), as shown on sheet 2 of the hedgerow and trees plans | Partial removal | Work No. 2C | Yes
H6 (West of the A46, north-east of Hungerley Hall Farm) as shown on sheet 4 of the hedgerow and trees plans | Partial removal (the existing hedge extends beyond surveyed extents) | Work Nos. 1C and 2A | Yes
H7 (West of the A46, north-east of Hungerley Hall Farm) as shown on sheet 4 of the hedgerow and trees plans | Partial removal | Work Nos. 1L and 1M | Yes
H13 (Running parallel to and to the east of the A46) as shown on sheets 2 and 4 of the hedgerow and trees plans | Partial removal | Work Nos. 1A, 1B, 1E, 1F and 3A | No
H16 (East of the A46) as shown on sheet 4 of the hedgerow and trees plans | Partial removal | Work Nos. 1A and 1E | Yes
H17 (East of the A46, north-east of Hungerley Hall Farm) as shown on sheet 4 of the hedgerow and trees plans | Partial removal (the existing hedge extends beyond surveyed extents) | Work Nos. 1F and 1H | Yes
PART 2 TREES SUBJECT TO TREE PRESERVATION ORDERS
(1) Type of tree | (2) Work to be carried out | (3) Relevant part of the authorised development | (4) TPO reference
T46 to T55, east of the existing roundabout on the boundary with Coombe Country Park | To facilitate the construction of an environmental bund and fence replacement; raising of the western/north-western side canopies to allow a five metre clearance over the highway embankment works within the root protection area | Work No. 1K | TPO No. 82
SCHEDULE 6 LAND IN WHICH ONLY NEW RIGHTS ETC. MAY BE ACQUIRED
Article 29
(1) Plot Reference Number shown on Land Plans | (2) Purpose for which rights over land may be acquired | (3) Relevant part of the authorised development
Land plans – Sheet 2 and 2A
2/3d | Required to operate, access and maintain the authorised development. Right to pass and repass with or without plant and vehicles and access highways. To include restrictive covenants for protecting the installed apparatus from excavation and to prevent access to the installed apparatus being made materially more difficult. | Work No. 2G
2/3e | Required to operate, access and maintain the authorised development. Right to pass and repass with or without plant and vehicles and access highways. To include restrictive covenants for protecting the installed apparatus from excavation and to prevent access to the installed apparatus being made materially more difficult. | Work No. 2G
SCHEDULE 7 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF RESTRICTIVE COVENANTS
Article 29
Compensation enactments
1 The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant as they apply in respect of compensation on the compulsory purchase of land and interests in land.
2 (1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).
(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—
(5A) If—
(a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants) to the A46 Coventry Junctions (Walsgrave) Development Consent Order 2026 (“the 2026 Order”));
(b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 to the 2026 Order) to acquire an interest in the land; and
(c) the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.
.
3 (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973 has effect subject to the modifications set out in sub-paragraph (2).
(2) In section 44(1) (compensation for injurious affection) of the Land Compensation Act 1973, as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—
(a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and
(b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.
Application of the 1965 Act
4 Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 34 (modification of Part 1 of the 1965 Act)... of this Order) to the acquisition of land under article 26 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 29 (compulsory acquisition of rights and imposition of restrictive covenants)—
(a) with the modifications specified in paragraph 5; and
(b) with such other modifications as may be necessary.
5 (1) The modification referred to in paragraph 4(a) are as follows.
(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the context) as referring to, or as including references to—
(a) the right acquired or to be acquired, or the restrictive covenant imposed , or to be imposed; or
(b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.
(3) For section 7 (measure of compensation) of the 1965 Act substitute—
7. In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the restrictive covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.
.
(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a) section 9(4) (failure by owners to convey);
(b) paragraph 10(3) of Schedule 1 (persons without power to sell their interests);
(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),
are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
(5) Section 11 (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 26 (compulsory acquisition of land)), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A (powers of entry; further notices of entry), 11B (counter-notice requiring possession to be taken on specified date), 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.
(6) Section 20 (protection for interests of tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 29(4) (compulsory acquisition of rights and imposition of restrictive covenants) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.
(8) For Schedule 2A of the 1965 Act substitute—
SCHEDULE 2A
COUNTER-NOTICE REQUIRING PURCHASE OF LAND
Section 8
Introduction
1. (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 35 (application of the 1981 Act) of the A46 Coventry Junctions (Walsgrave) Development Consent Order 2026 in respect of the land to which the notice to treat relates.
(2) But see article 36(3) (acquisition of subsoil and airspace only) of the A46 Coventry Junctions (Walsgrave) ... Development Consent Order 2026 which excludes the acquisition of subsoil or airspace only from this Schedule.
2. In this Schedule, “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
3. A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
4. A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.
Response to counter-notice
5. On receiving a counter-notice, the acquiring authority must decide whether to—
(a) withdraw the notice to treat,
(b) accept the counter-notice, or
(c) refer the counter-notice to the Upper Tribunal.
6. The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
7. If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.
8. If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.
9. If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.
Determination by Upper Tribunal
10. On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—
(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or
(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
11. In making its determination, the Upper Tribunal must take into account—
(a) the effect of the acquisition of the right or the imposition of the covenant,
(b) the proposed use of the right or the imposition of the covenant, and
(c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
12. If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.
13. If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.
14. (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.
15. Any dispute as to the compensation is to be determined by the Upper Tribunal.
.
SCHEDULE 8 LAND OF WHICH TEMPORARY POSSESSION ONLY MAY BE TAKEN
Article 38
(1) Plot reference number shown on Land plans | (2) Purpose for which temporary possession may be taken | (3) Relevant part of the authorised development
Land plans – Sheet 1 of 5
Such of plot 1/1c as is vested in Warwickshire County Council | Temporary access to facilitate works to the A46 as it crosses Brinklow Road | Work No. 1A
1/6b | Temporary access and working area to facilitate the improvement and realignment of the A46 southbound carriageway | Work No. 1A
1/7b | Temporary access and working area to facilitate the improvement and realignment of the A46 southbound carriageway | Work No. 1A
1/9b | Temporary access and working area to facilitate the improvement and realignment of the A46 southbound carriageway | Work No. 1A
Land plans – Sheet 2 and 2A of 5
2/1b | Temporary access and working area to facilitate the improvement and realignment of the A46 northbound and southbound carriageway | Work No. 1A
2/1d | Temporary access and working area to facilitate the reinstatement of existing timber fence where required and vegetation removal | Work No. 3C
2/1e | Temporary access and working area to facilitate the reinstatement of existing timber fence where required and vegetation removal | Work No. 3C
2/1f | Temporary access and working area to facilitate the improvement and realignment of the A46 northbound and southbound carriageway | Work No. 1A
2/1g | Temporary access and working area to facilitate the reinstatement of existing timber fence where required and vegetation removal | Work No. 3C
2/2 | Temporary access and working area to facilitate the reinstatement of existing timber fence where required and vegetation removal | Work No. 3C
2/3a | Temporary access and working area to facilitate the improvement and realignment of the A46 northbound and southbound carriageway | Work No. 1A
2/3f | Temporary access and working area to facilitate the new private means of access between the realigned B4082 road (Work No. 2A) and Hungerley Hall Farm buildings. Temporary access and working area to facilitate the new southern detention basin access. Temporary access and working area to facilitate the new southern detention basin. | Work Nos. 2C, 2G and 2E
2/4 | Temporary access and working area to facilitate the improvement and realignment of the A46 northbound and southbound carriageway | Work No. 1A
2/7 | Temporary access and working area to facilitate the new signalised pedestrian crossing situated 20 metres east of the existing Clifford Bridge Road roundabout and the extension of existing footway. | Work No. 2I
2/8 | Temporary access and working area to facilitate the new signalised pedestrian crossing situated 20 metres east of the existing Clifford Bridge Road roundabout and the extension of existing footway. | Work No. 2I
Land plans – Sheet 3 and 3A of 5
3/2d | Temporary access and working area to facilitate the new roundabout to the east of the A46 | Work No. 1H
3/2e | Temporary access and working area to facilitate the northern pond access. Temporary access and working area to facilitate the new ditch along the western side of the B4082. | Work No. 1M and 2H
3/4c | Temporary access and working area to facilitate the new roundabout to the east of the A46 | Work No. 1H
3/4e | Temporary access and working area to facilitate the new northern pond. Temporary access and working area to facilitate the new northern pond access. Temporary access and working area to facilitate the new ditch along the western side of the B4082. A temporary construction compound. | Work Nos. 1L, 1M, 2H and 4A
Land plans – Sheet 4 of 5
4/2a | A temporary construction compound | Work No. 4A
4/2d | Temporary access and working area to facilitate the new southbound off-slip | Work No. 1E
Articles 41 and 49
PART 1 FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS
Application
1 For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.
Interpretation
2 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by that undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 (introductory) of the Gas Act 1986 for the purposes of gas supply;
in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply; and
in the case of a sewerage undertaker—
any drain or works vested in the undertaker under the Water Industry Act 1991; and
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewer, drain or sewage disposal works at future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land;
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;
“utility undertaker” means—
any licence holder within the meaning of Part 1 (electricity supply) of the Electricity Act 1989;
a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986;
a water undertaker within the meaning of the Water Industry Act 1991; and
a sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,
for the area of the authorised development, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.
On street apparatus
3 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus in stopped up streets
4 (1) Where any street is stopped up under article 17 (permanent stopping up of streets and private means of access), any utility undertaker has the same powers and rights in respect of any apparatus in the street as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 (removal of apparatus) or the power of the undertaker to carry out works under paragraph 9 (retained apparatus).
(2) Regardless of the temporary alteration, diversion or restriction of a street under the powers conferred by article 15 (temporary closure, alteration, diversion and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.
Protective works to buildings
5 The undertaker, in the case of the powers conferred by article 22 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.
Acquisition of land
6 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.
Removal of apparatus
7 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in accordance with sub-paragraphs (2) to (6).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed the utility undertaker must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article 55 (arbitration).
(5) The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 55, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
(7) If the utility undertaker fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved.
(8) For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.
(9) Any notice to which this paragraph applies must include a statement that the provisions of sub-paragraph (7) apply to that notice.
Facilities and rights for alternative apparatus
8 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction, maintenance of the utility undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker or in default of agreement settled by arbitration in accordance with article 55 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
9 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 7(2) (removal of apparatus), the undertaker must submit to the utility undertaker a plan of the works to be executed.
(2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(4) If a utility undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give the utility undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.
Expenses and costs
10 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2) (removal of apparatus).
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 55 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker by virtue of sub-paragraph (1) must be reduced by the amount of that excess
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1), if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
11 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 (protective works to buildings) or 7(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b) make reasonable compensation for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker.
(2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless a utility undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(4) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made, without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Co-operation
12 Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9 (retained apparatus), the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.
13 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 2 FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS
14 For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.
15 In this Part of this Schedule—
“the 2003 Act” means the Communications Act 2003;
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; and
an electronic communications network which the undertaker is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;
“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) (infrastructure system) of that code; and
“operator” means the operator of an electronic communications code network.
16 The exercise of the powers conferred by article 41 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
17 (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—
(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or
(b) there is any interruption in the supply of the service provided by an operator,
the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 55 (arbitration).
18 This Part of this Schedule does not apply to—
(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or
(b) any damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.
19 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.