PART 3

Acquisition and Possession of Land

Powers of acquisition

Power to acquire land
22
The undertaker may acquire compulsorily—
a
so much of the land shown on the onshore plan within the limits of deviation as land to be acquired compulsorily and described in the book of reference as may be required for the purposes of the authorised works; and
b
so much of the land specified in columns (1) and (2) of Schedule 2 to this Order (being land shown on the onshore plan and described in the book of reference) as may be required for the purpose specified in relation to that land in column (3) of that Schedule,
and may use any land so acquired for those purposes or for any other purposes that are ancillary to the authorised works and their operation.

Power to acquire new rights and impose restrictive covenants
23
1
The undertaker may acquire compulsorily such easements or other rights over land referred to in article 22 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.
2
In the case of the land specified in columns (1) and (2) of the table in Part 1 of Schedule 6 (land in which only new rights may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such new rights as may be required for the purpose specified in relation to that land in column (3) of that table.
3
In the case of the land specified in columns (1) and (2) of the table in Part 2 (land over which restrictive covenants may be imposed) of Schedule 6 the undertaker’s power under article 22 (power to acquire land) also includes power to impose restrictive covenants over the land for the purposes specified in relation to the land in column (3) of the table.
4
Subject to—
a
Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as substituted by paragraph 5(7) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights)); and
b
Schedule A1 to the 1981 Act (as modified by paragraph 7(7) of Schedule 7),
where the undertaker acquires a right over land or imposes a restrictive covenant under paragraph (1), (2) or (3), the undertaker is not required to acquire a greater interest in that land.
5
Schedule 7 has effect for the purpose of modifying the enactments relating to compensation, and the provisions of the 1965 Act and the 1981 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Application of Part 1 of the Compulsory Purchase Act 1965
24
1
Part 1 of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the acquisition of land under this Order—
a
as it applies to a compulsory purchase to which the Acquisition of Land Act 1981 applies; and
b
as if this Order were a compulsory purchase order under that Act.
2
Part 1 of the 1965 Act, as so applied, has effect with the following modifications.
3
Omit section 4 (which provides a time limit for compulsory purchase of land).
4
In section 4A(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4”, substitute “section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 36 (time limit for exercise of powers of acquisition) of the Morlais Demonstration Zone Order 2021”.
5
In section 11(1B) (powers of entry), in a case where the notice to treat relates only to the acquisition of an easement or other right over land or the imposition of a restrictive covenant, for “3 months” substitute “1 month”.
6
In section 11A (powers of entry: further notices of entry)—
a
in subsection (1)(a), after “land” insert “under that provision”; and
b
in subsection (2), after “land” insert “under that provision”.
7
In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 36 (time limit for exercise of powers of acquisition) of the Morlais Demonstration Zone Order 2021”.
8
In Schedule 2A (counter-notice requiring purchase of land not in notice to treat)—
a
paragraphs 1(2) and 14(2) substitute—
2
But see article 26(3) (Power to acquire subsoil only) of the Morlais Demonstration Zone Order 2021, which excludes the acquisition of subsoil only from this Schedule; and
b
after paragraph 29, insert—
PART 4

INTERPRETATION
30
In this Schedule, references to entering on and taking possession of land do not include doing so under article 28 (temporary use of land for construction of works) of the Morlais Demonstration Zone Order 2021.

Application of the 1981 Act
25
1
The 1981 Act applies as if this Order were a compulsory purchase order.
2
The 1981 Act, as applied by paragraph (1), has effect with the following modifications.
3
In section 5 (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.
4
Omit section 5A (time limit for general vesting declaration).
5
In section 5B(1) (extension of time limit during challenge) for “section 23 of the Acquisition of Land 1981 (application to the High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 36 (time limit for exercise of powers of acquisition) of the Morlais Demonstration Zone Order 2021”.
6
In section 6 (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 14A of the Transport and Works Act 1992”.
7
In section 7 (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.
8
In Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration), paragraph 1(2) —
2
But see article 26(3) (power to acquire subsoil only) of the Morlais Demonstration Zone Order 2021 which excludes the acquisition of subsoil only from this Schedule.
9
References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied to the acquisition of land under article 22 (power to acquire land).

Power to Acquire Subsoil Only
26
1
The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in paragraph (1)(a) or (b) of article 22 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.
2
Where the undertaker acquires any part of or rights in the subsoil of land under paragraph (1) it will not be required to acquire an interest in any other part of the land.
3
The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—
a
Schedule 2A (counter notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 24 (application of Part 1 of the Compulsory Purchase Act 1965));
b
Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act (as modified by article 25 (application of the 1981 Act)); and
c
section 153(4A) (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.
4
Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar vault, arch or other construction forming part of a house, building or manufactory.
5
Schedule 8 contains provision which in certain cases restricts the power under article 22 to the subsoil or under-surface of the land as lies more than 9 metres below the level of the surface.

Rights under or over streets
27
1
The undertaker may enter upon and appropriate so much of the subsoil of, or air-space over, any street within the onshore Order limits as may be required for the purposes of the authorised works and may use the subsoil or air-space for those purposes or any other purpose ancillary to the authorised works.
2
Subject to paragraph (4), the power under paragraph (1) may be exercised in relation to a street without the undertaker being required to acquire any part of the street or any easement or right in the street.
3
Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss by the exercise of that power, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.
4
Paragraph (2) does not apply in relation to—
a
any subway or underground building; or
b
any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.
5
Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary Possession of Land

Temporary use of land for construction of works
28
1
The undertaker may, in connection with the carrying out of the authorised works—
a
enter upon and take temporary possession of—
i
the land specified in columns (1) and (2) of Schedule 9 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule; and
ii
any other land within the onshore Order limits in respect of which no notice of entry has been served under section 11 (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been executed under section 4 (execution of declaration) of the 1981 Act;
b
remove any buildings and vegetation from that land;
c
construct temporary works (including the provision of means of access) and buildings on that land;
d
construct any works required as mentioned in article 3 (power to construct maintain repower and decommission works); and
e
construct any mitigation works on that land.
2
Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land.
3
The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—
a
in the case of any land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised works specified in relation to that land in column (4) of Schedule 9; or
b
in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the works or other purpose for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.
4
Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—
a
replace a building removed under this article;
b
restore the land on which any permanent works have been constructed under paragraphs (1)(d) or (1)(e);
c
remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised works; or
d
remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised works.
5
The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
6
Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.
7
Without affecting article 48 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provision as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).
8
Where the undertaker takes possession of land under this article, it is not required to acquire the land or any interest in it.
9
Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 24(1) (application of Part 1 of the 1965 Act).

Temporary use of land for maintenance of works
29
1
Subject to paragraph (2), at any time during the maintenance period relating to any of the authorised works, the undertaker may—
a
enter upon and take temporary possession of any land within the onshore Order limits if such possession is reasonably required for the purpose of maintaining the work or any ancillary works connected with it; and
b
construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.
2
Paragraph (1) does not authorise the undertaker to take temporary possession of—
a
any house or garden belonging to a house; or
b
any building (other than a house) if it is for the time being occupied.
3
Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land.
4
The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised works for which possession of the land was taken.
5
Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.
6
The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
7
Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, will be determined under Part 1 of the 1961 Act.
8
Without prejudice to article 48 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).
9
Where the undertaker takes possession of land under this article, it will not be required to acquire the land or any interest in it.
10
Section 13 of the 1965 Act applies to the temporary use of land pursuant to this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 24 (application of Part 1 of the Compulsory Purchase Act 1965).
11
In this article “the maintenance period”, in relation to an authorised work, means the period of 5 years beginning with the date on which the work is opened for use.

Incorporation of the mineral code
30
Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981 (minerals) are incorporated in this Order subject to the modifications that—
a
for “the acquiring authority” substitute “the undertaker”;
b
for “undertaking” substitute “authorised works”; and
c
for “compulsory purchase order” substitute “this Order”.

Protection of rights to fish
31
1
The undertaker must pay to the owners, occupiers or persons otherwise having a proprietary right of fishing injuriously affected by the construction, operation, maintenance or decommissioning of the authorised works, or otherwise by the exercise of the powers conferred on the undertaker by this Order, compensation for any damage sustained by such persons by reason of the construction, operation, maintenance or decommissioning or the exercise of the powers.
2
Compensation under paragraph (1) must be determined, in case of dispute, under Part 1 of the 1961 Act.

Compensation

Disregard of certain interests and improvements
32
1
In assessing the compensation payable to any person on the acquisition from that person of any land under this Order, the tribunal must not take into account—
a
any interest in land; or
b
any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,
if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.
2
In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Set-off for enhancement in value of retained land
33
1
In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised works.
2
In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 23 (power to acquire new rights and impose restrictive covenants), the tribunal must set off against the value of the rights so acquired—
a
any increase in the value of the land over which the new rights are required; and
b
any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,
which will accrue to him by reason of the construction of the authorised works.
3
The 1961 Act has effect, subject to paragraphs (1) and (2), as if this Order were a local enactment for the purposes of that Act.

Supplementary

Power to override easements and other rights
34
1
Any authorised activity which takes place on land within the onshore Order limits (whether the activity is undertaken by the undertaker, or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—
a
an interference with an interest or right to which this article applies; or
b
a breach of a restriction as to the user of land arising by virtue of a contract.
2
In this article “authorised activity” means—
a
the construction, operation, maintenance or decommissioning of any part of the authorised works;
b
the exercise of any power authorised by this Order; or
c
the use of any land (including the temporary use of land).
3
The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support; and include restrictions as to the user of land arising by the virtue of a contract.
4
Where any interest, right or restriction is overridden by paragraph (1), compensation—
a
is payable under section 7 (measure of compensation in case of severance) or section 10 (further provision as to compensation for injurious affection) of the 1965 Act; and
b
is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where—
i
the compensation is to be estimated in connection with a purchase under that Act; or
ii
the injury arises from the execution of works on or use of land acquired under that Act.
5
Where a person deriving title under the undertaker by whom the land in question was acquired—
a
is liable to pay compensation by virtue of paragraph (4); and
b
fails to discharge that liability,
the liability is enforceable against the undertaker.
6
Nothing in this article is to be construed as authorising any act or omission on the part of any person that is actionable at the suit of any person on any grounds other than such an interference or breach as mentioned in paragraph (1).

Private rights over land
35
1
Subject to the provisions of this article, all private rights of way over land subject to compulsory acquisition under this Order are extinguished—
a
from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or
b
on the date of entry on the land by the undertaker under section 11 (powers of entry) of the 1965 Act,
whichever is the sooner.
2
Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or burden of the restrictive covenant—
a
from the date of the acquisition of the right or the benefit of the restrictive covenant being imposed in favour of the undertaker, whether compulsorily or by agreement;
b
on the date of entry onto the land by the undertaker under section 11(1) of the 1965 Act; or
c
on the commencement of any activity authorised by the Order which interferes with or breaches those rights,
whichever is the earlier.
3
Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.
4
Any person who suffers loss by the extinguishment or suspension of any private right or by the imposition of any restrictive covenant under this article is entitled to compensation, to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
5
This article does not apply in relation to any right to which section 271 or 272 (extinguishment of rights of statutory undertakers etc.) of the 1990 Act applies.
6
Paragraphs (1) to (3) have effect subject to—
a
any notice given by the undertaker before—
i
the completion of the acquisition of the land or the acquisition of the rights or the imposition of restrictive covenants over or affecting the land;
ii
the undertaker’s appropriation of it;
iii
the undertaker’s entry on to it; or
iv
the undertaker’s taking temporary possession of it,
that any or all of those paragraphs do not apply to any right of way specified in the notice; and
b
any agreement made at any time between the undertaker and the person in or to whom the right of way in question is vested or belongs.
7
If any such agreement as is referred to in paragraph (6)(b)—
a
is made with a person in or to whom the right of way is vested or belongs; and
b
is expressed to have effect also for the benefit of those deriving title from or under that person,
it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.
8
References in this article to private rights over land include any right of way, trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support; and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Time limit for exercise of powers of acquisition
36
1
After the end of the period of 5 years beginning with the day on which this Order comes into force—
a
no notice to treat may be served under Part 1 of the 1965 Act as applied to the acquisition of land by article 24 (application of Part 1 of the Compulsory Purchase 1965 Act); and
b
no declaration may be executed under section 4 of the 1981 Act as applied by article 25 (application of the 1981 Act).
2
The powers conferred by article 28 (temporary use of land for construction of works) cease at the end of the period referred to in paragraph (1), save that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession of it was taken before the end of that period.
1981 c. 67.
Inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).
Subsection (1B) of section 11 was inserted by section 186(1) and (2)(b) of the Housing and Planning Act 2016.
Inserted by section 186(3) of the Housing and Planning Act 2016.
As inserted by section 199(1) of, and paragraphs 1 and 3 of Schedule 17 to, the Housing and Planning Act 2016.
Inserted by section 182(2) of the Housing and Planning Act 2016.
Inserted by section 202(2) of the Housing and Planning Act 2016.
As amended by paragraph 52(2) of Schedule 2 to the Planning (Consequential Provisions) Act 1990 (c. 11) and paragraph 7 of Schedule 15 to the Housing and Planning Act 2016.
Inserted by S.I. 2017/16.
As amended by paragraph 3 of Schedule 18 to the Housing and Planning Act 2016.
As inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016 (c. 22).
Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 and S.I. 2009/1307.
Section 4 was amended by sections 184 and 185 of, and paragraphs 1 and 2 of Schedule 18 to, the Housing and Planning Act 2016 (c. 22).
Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and S.I. 2009/1307.
Section 13 was amended by sections 62(3), 139 and 146 of, and paragraphs 27 and 28 of Schedule 13, and Part 3 of Schedule 23, to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).
Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to the Church of England (Miscellaneous Provisions) Measures 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16, to the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.
Section 272 was amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).