The Daventry International Rail Freight Interchange Alteration Order 2014

• Citation: S.I. 2014/1796
• Sections: 76

Section 1 Citation and commencement

This Order may be cited as the Daventry International Rail Freight Interchange Alteration Order 2014 and will come into force on 24th July 2014.

Section 2 Interpretation

(1) In this Order—

“the 1961 Act ” means the Land Compensation Act 1961 ;

“the 1965 Act ” means the Compulsory Purchase Act 1965 ;

“the 1980 Act ” means the Highways Act 1980 ;

“the 1990 Act ” means the Town and Country Planning Act 1990 ;

“the 1991 Act ” means the New Roads and Street Works Act 1991 ;

“the 2008 Act” means the Planning Act 2008;

“access and rights of way plan” means the plan certified as the access and rights of way plan by the Secretary of State for the purposes of this Order;

“address” includes any number or address used for the purposes of electronic transmission;

“apparatus” for the purposes of articles 11 (street works) and 23 (apparatus and rights of statutory undertakers in stopped up streets) has the same meaning as in Part 3 of the 1991 Act;

“associated companies” has the same meaning as in section 256 (associated bodies corporate) of the Companies Act 2006 ;

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

“the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

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

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

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

“cycle track” has the same meaning as in the 1980 Act ;

“the design and access statement” means the document certified by the Secretary of State as the design and access statement for the purposes of this Order;

“development consent obligation” means the development consent obligation entered into under section 106 (planning obligations) of the 1990 Act dated 16th December 2013 in respect of the authorised development and any subsequent amendment to the obligation;

“DIRFT I Estate” means the land shaded blue on the Location Plan (Document 2.1) certified by the Secretary of State as the location plan for the purposes of this Order;

“electronic transmission” means a communication transmitted—

by means of an electronic communications network; or

by other means but while in electronic form;

“the environmental statement” means the document certified by the Secretary of State as the environmental statement for the purposes of this Order;

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

“the framework plans” means the Main Site and Rail Corridor Plans (Documents 2.7A to C) the Schedule of Parameters (Document 2.7D), the Rail Framework Plans (Documents 2.10A and 2.10B) and the Highway Works Framework Plans (Documents 2.13A, B, D to F) certified as the framework plans by the Secretary of State for the purposes of this Order;

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

“the land plans” means the Main Site and Rail Land Plans (Documents 2.2A to C) and the Highway Mitigation Land and Works Plans (Documents 2.4A, B, D to J) certified as the land plans by the Secretary of State for the purposes of this Order ;

“maintain” includes inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct, decommission, demolish, replace or improve and any derivative of “maintain” is to be construed accordingly;

“main site” means that part of the land within the Order limits lying to the east of the A5 and north of the DIRFT I Estate;

“Order land” means the land shown on the land plans which is within the Order limits in respect of which rights are to be acquired and described in the book of reference;

“the Order limits” means the limits shown on the works plans represented by a red line within which the authorised development may be carried out;

“owner”, in relation to land, has the same meaning as in the Acquisition of Land Act 1981 ;

“public footpath scheme” means a scheme agreed between the highway authority and the undertaker containing the specification for the public footpaths or bridleways which are to be permanently or temporarily provided within the main site;

“railway” has the same meaning as in the 2008 Act;

“rail alignment plans” means the illustrative rail alignment plans (Documents 2.9 C to E) certified as the rail alignment plans by the Secretary of State for the purposes of this Order;

“rail served warehousing” means warehousing to which goods can be delivered by rail either directly or by means of another form of transport;

“relevant highway authority” means, in any provision of this Order, the highway authority for any area of land to which that provision relates;

“relevant planning authority” means the district planning authority for the area in which land to which the provisions of this Order apply is situated and in respect of the requirements means the district planning authority in whose administrative district the part of the authorised development to which the requirement relates is located;

“relevant street authority” means, in any provision of this Order, the street authority for any area of land to which that provision relates;

“relocation works” means work executed, or apparatus provided, under paragraph (2) of article 23 (apparatus and rights of statutory undertakers in stopped up streets);

“requirements” means the requirements set out in Schedule 2 (requirements), and references to numbered requirements are references to the corresponding paragraph number in Schedule 2;

“statutory undertaker” means a statutory undertaker for the purposes of section 127(8) of the 2008 Act;

“statutory utility” means a statutory undertaker for the purposes of the 1990 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003 ;

“street” means a street within the meaning of section 48 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“street authority” in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

“Transport Review Group” means the body to be established under paragraph 5 of Part 2 of Schedule 1 to the development consent obligation;

“undertaker” means—

Rugby Radio Station Limited Partnership (company number LP009085, registered at 1 Poultry, London, EC2R 8EJ) and Prologis UK Limited (company number 02872273, registered at 1 Monkspath Hall Road, Solihull, West Midlands, B90 4FY) and their associated companies; and

subject to article 7 (benefit of order), any other person who has the benefit of this Order in accordance with section 156 of the 2008 Act for such time as that section applies to that person;

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

“the works plans” means the Main Site and Rail Works Plans (Document 2.3A to C) and the Highway Mitigation Land and Works Plans (Documents 2.4A, B, D to J) certified as the works plans by the Secretary of State for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the air-space above its surface.

(3) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

(4) References in this Order to numbered works are references to the works as numbered in Schedule 1.

(5) All areas described in square metres in the book of reference are approximate.

Section 3 Development consent granted by the Order

The undertaker is granted development consent for the authorised development to be carried out subject to the provisions of the Order within the Order limits and subject to the requirements.

Section 4 Parameters of authorised development

The authorised development is to be carried out within the parameters shown and described on the framework plans and in carrying out the authorised development the undertaker may—

(a) deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans; and

(b) in respect of the rail works deviate vertically from the levels shown on the rail alignment plans to the extent of the limits of vertical deviation shown on those plans.

Section 5 Authorisation of use

(1) Subject to the provisions of this Order, including the requirements, the undertaker and any persons authorised by them may operate and use the authorised development and the existing rail infrastructure within the Order land for the purposes of a rail freight terminal and warehousing and any purposes ancillary to those purposes.

(2) It does not constitute a breach of the terms of this Order if, following the coming into force of this Order, any development, or any part of a development, is carried out or used within the Order limits under planning permission granted, on application, under the 1990 Act.

Section 6 Maintenance of authorised development

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

Section 7 Benefit of Order

Rugby Radio Station Limited Partnership and Prologis UK Limited, and their associated companies, have the sole benefit of articles 19 to 23 (powers of acquisition) and are solely liable under article 28 (certification of plans etc. ) and requirement 6(1) (detailed design approval) in Schedule 2 (requirements).

Section 8 Application and modification of legislative provisions

(1) Where an application is made to the relevant planning authority for any consent, agreement or approval required by a requirement, the following provisions apply, so far as they relate to a consent, agreement or approval of a relevant planning authority required by a condition imposed on a grant of planning permission, as if the requirement was a condition imposed on the grant of planning permission—

(a) sections 78 (right of appeal in relation to planning decisions) and 79 (determination of appeals) of the 1990 Act ;

(b) any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a relevant planning authority required by a condition imposed on the grant of planning permission.

(2) For the purposes of paragraph (1), a provision relates to a consent, agreement or approval of a relevant planning authority required by a condition imposed on a grant of planning permission in so far as it makes provision in relation to an application for such a consent, agreement or approval, or the grant or refusal of such an application, or a failure to give notice of a decision on such an application.

Section 9 Defence to proceedings in respect of statutory nuisance

The defence of statutory authority provided by section 158(1) and (2) of the 2008 Act does not apply to civil or criminal proceedings for nuisance brought in respect of the carrying out of the authorised development or anything else authorised by the granting of this Order.

Section 10 Power to alter layout, etc., of streets

(1) Subject to paragraph (2), the undertaker may, for the purposes of constructing and maintaining the authorised development, alter the layout of any street within the Order limits and the layout of any street having a junction with such a street; and, without limitation on the scope of this paragraph, the undertaker may—

(a) increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street;

(b) alter the level or increase the width of such kerb, footpath, footway, cycle track or verge;

(c) reduce the width of the carriageway of the street;

(d) make and maintain crossovers, sidings and passing places.

(2) The undertaker must restore to the reasonable satisfaction of the relevant street authority any street that has been temporarily altered under this article.

(3) The powers conferred by paragraph (1) are not to be exercised without the consent of the relevant street authority; but such consent must not be unreasonably withheld.

Section 11 Street works

(1) The undertaker may with the prior agreement of the relevant street authority (such agreement not to be unreasonably withheld), for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 3 (streets subject to street works) as is within the Order limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street;

(c) place apparatus in the street;

(d) maintain apparatus in the street or change its position;

(e) construct and maintain the bridges and tunnels referred to in Works Nos 1, 2 and 3; and

(f) execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c), (d) and (e) .

(2) The prior agreement of the relevant street authority required under sub-paragraph (1) is not required where the street works are carried out under an agreement entered into under section 278 of the 1980 Act .

Section 12 Stopping up of streets

(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the streets specified in columns (1) and (2) of Parts 1 and 2 of Schedule 4 (streets to be permanently stopped up) to the extent specified, by reference to the letters shown on the access and rights of way plan, in column (3) of those Parts of that Schedule.

(2) No street specified in columns (1) and (2) of Part 1 of Schedule 4 (being a street to be stopped up for which a substitute is to be provided) is to be wholly or partly stopped up under this article unless—

(a) the new street to be substituted for it, which is specified in column (4) of that Part of that Schedule, has been completed and is open for use; or

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

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

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

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

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

(c) there is reasonably convenient access to the land otherwise than from the street concerned.

(5) Where a street has been stopped up under this article—

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

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

(6) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(7) This article is subject to article 23 (apparatus etc. of statutory undertakers).

Section 13 Public rights of way – diversion and stopping up

(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development—

(a) stop up each of the public rights of way specified in columns (1) and (2) of Part 1 of Schedule 5 (public rights of way to be permanently stopped up) to the extent specified, by reference to the letters and numbers shown on the access and rights of way plan, in column (3) of that Part of that Schedule; and

(b) temporarily stop up each of the public rights of way specified in columns (1) and (2) of Part 2 of Schedule 5 (public rights of way to be temporarily stopped up) to the extent as may be from time to time agreed with the relevant highway authority.

(2) No public right of way specified in columns (1) and (2) of Part 1 of Schedule 5 may be wholly or partly stopped up under this article unless the permanent diversion routes specified in column (4) of that Part of that Schedule, or such temporary diversion routes as may from time to time be agreed by the relevant highway authority, have first been provided by the undertaker to the reasonable satisfaction of the relevant highway authority.

(3) The permanent diversion routes referred to in paragraph (2), or any temporary diversion route as may from time to time be agreed by the relevant highway authority, must be maintained by the undertaker with appropriate clear signage of the permanently or temporarily diverted route to the reasonable satisfaction of the relevant highway authority.

(4) Any temporary diversion route must be maintained by the undertaker until the completion and opening of the public rights of way within the Order limits specified in column (4) of Part 1 of Schedule 5.

Section 14 Temporary stopping up of streets

(1) During and for the purposes of carrying out the authorised development, the undertaker may temporarily stop up, alter or divert any street and may for any reasonable time—

(a) divert the traffic from the street; and

(b) subject to paragraph (2), prevent all persons from passing along the street.

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

(3) The undertaker must not temporarily stop up, alter or divert any street without the consent of the relevant street authority which may attach reasonable conditions to any consent but such consent must not be unreasonably withheld.

(4) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Section 15 Access

The undertaker may, for the purposes of the authorised development and with the agreement of the relevant highway authority (such agreement not to be unreasonably withheld), form and lay out such means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires.

Section 16 Agreements with highway authorities

(1) A relevant highway authority and the undertaker may enter into agreements with respect to—

(a) the construction of any new street, including any structure carrying the street over or under a railway authorised by this Order;

(b) the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order;

(c) the maintenance of the structure of any bridge or tunnel carrying a street over or under a railway;

(d) any stopping up, alteration or diversion of a street as part of or to facilitate the authorised development; or

(e) the carrying out in the street of any of the works referred to in article 11 (street works),

prior to the carrying out of the works to which the agreements relate.

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

(a) make provision for the relevant highway authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and the relevant highway authority specifying a reasonable time for the completion of the works; and

(c) contain such terms as to payment and otherwise as the parties consider appropriate.

(3) This article does not apply to streets within the main site which are intended to be private streets.

Section 17 Discharge of water

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

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

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

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

(a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

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

(5) The undertaker must not, in carrying out or maintaining works under the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

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

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016 .

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority, or a sewerage undertaker; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Section 18 Authority to survey and investigate the land

(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised development and—

(a) survey or investigate the land;

(b) without limitation on the scope of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land; and

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

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner, who is not the undertaker, and occupier of the land.

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

(a) must, if so required, produce written evidence of authority to do so; and

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

(4) No trial holes are to be made under this article—

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

(b) in a private street without the consent of the relevant street authority,

but such consent must not be unreasonably withheld.

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

Section 19 Compulsory acquisition of rights

(1) The undertaker may acquire compulsorily the existing rights described in the book of reference and shown on the land plans.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights under this Order are extinguished in so far as their continuance would be inconsistent with the carrying out and use of the authorised development—

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

(b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act in pursuance of the right,

whichever is the earlier.

(3) Where the undertaker acquires an existing right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

Section 20 Time limit for exercise of authority to acquire rights compulsorily

After the end of the period of 5 years beginning on the day on which the Order is made—

(a) no notice to treat is to be served under Part 1 of the 1965 Act; and

(b) no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 21 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

Section 21 Application of the Compulsory Purchase (Vesting Declarations) Act 1981

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

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as so applied, has effect with the following modifications.

(3) In section 3 (preliminary notices) for subsection (1) there is substituted—

(1) Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order the acquiring authority must include the particulars specified in subsection (3) in a notice which is—

(a) given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b) published in a local newspaper circulating in the area in which the land is situated.

(4) In that section, in subsection (2), for “(1)(b)” there is substituted “(1)” and after “given” there is inserted “and published”.

(5) In that section, for subsections (5) and (6) there is substituted—

(5) For the purposes of this section, a person has a relevant interest in land if—

(a) that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or

(b) that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month.

(6) In section 5 (earliest date for execution of declaration) —

(a) in subsection (1), after “publication” there is inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) is omitted.

(7) In section 7 (constructive notice to treat), in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” are omitted.

(8) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 are to be construed as references to that Act as applied by section 125 (application of compulsory acquisition provision) of the 2008 Act to the compulsory acquisition of rights under this Order.

Section 22 Rights under or over streets

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

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

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

(a) any subway or underground building; or

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

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

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

Section 23 Apparatus and rights of statutory undertakers in stopped up streets

(1) Where a street is stopped up under article 12 (stopping up of streets) 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 12 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 statutory 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 statutory 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—

(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 that new apparatus involves additional costs which would not have been incurred if the apparatus had been of the same type, capacity or laid at the same depth as the existing apparatus, then the amount payable to the statutory utility is to be reduced by a sum equivalent to those additional costs.

(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 statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

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

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) 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.

Section 24 Operation and use of railways

(1) The undertaker may operate and use the railway and any other elements of the authorised development as a system, or part of a system, of transport for the carriage of goods.

(2) Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993 .

Section 25 Charges

The undertaker may demand, take and recover or waive such charges for carrying goods on the railway comprised in the authorised development, or for any other services or facilities provided in connection with the operation of that railway, as it thinks fit.

Section 26 Felling or lopping of trees

(1) Subject to paragraph (4) the undertaker may fell or lop any tree or shrub near any part of the authorised development, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

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

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

(2) In carrying out any activity authorised by paragraph (1), the undertaker must not cause unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

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

(4) The provisions of this article do not apply without the agreement of the relevant planning authority to any tree identified to be retained in the landscaping scheme approved under requirement 8 (provision of landscaping).

(5) The provisions of this article do not apply without the agreement of the relevant highway authority to any tree within a highway.

Section 27 Protection of interests

Schedule 6 (protective provisions) has effect.

Section 28 Certification of plans etc.

(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

(a) the access and rights of way plan;

(b) the book of reference;

(c) the design and access statement;

(d) the environmental statement;

(e) the framework plans;

(f) the land plans;

(g) the location plan;

(h) the rail alignment plans; and

(i) the works plans,

for certification that they are true copies of the documents referred to in this Order.

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

Section 29 Service of notices

(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 (6) 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 that 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 of other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is 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) in a form sufficiently permanent to be used for subsequent reference.

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

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

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

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

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

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

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

Section 30 Arbitration

Any difference under any provision of this Order, unless otherwise provided for, 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) to the Lands Chamber of the Upper Tribunal.

Section 1 Interpretation

“access works” means Works Nos 5(a) and 5(b);

“the approved development plans” means the—

Main Site and Rail Corridor Framework Plans (Sheet 1) (Document 2.7A);

Main Site and Rail Corridor Framework Plans (Sheet 1) (Document 2.7B);

Main Site and Rail Corridor Framework Plans (Sheet 1) (Document 2.7C);

Schedule of Parameters (Document 2.7D);

Rail Framework Plans (Sheet 1) (Document 2.10A);

Rail Framework Plans (Sheet 2) (Document 2.10B);

Highway Works Framework Plans (Gibbet Roundabout) (Document 2.13A);

Highway Works Framework Plans (M1 J18) (Document 2.13B);

Highway Works Framework Plans (Lilbourne Junction) (Document 2.13D);

Highway Works Framework Plans (Catthorpe Junction) (Document 2.13E); and

Highway Works Framework Plans (A5/A428 Parklands) (Document 2.13F);

“authorised buildings” means any building erected as part of the authorised development;

“BREEAM” means Building Research Establishment Environmental Assessment Methodology;

“Highways Agency” means an Executive Agency of the Department for Transport responsible for operating, maintaining and improving the strategic road network in England on behalf of the Secretary of State for Transport;

“highway works” means Works Nos 10(a) to (e), (h) and (i);

“lead local flood authority” means Northamptonshire County Council;

“occupation” means occupation of the authorised buildings other than for the purpose of constructing, fitting out, commissioning or site security;

“phase” means a defined section or part of the authorised development, the extent of which is shown in a scheme submitted to and approved by the relevant planning authority under requirement 3 (phases of development);

“phase one rail works” means the following works all of which are within Works No. 3—

4 western transhipment sidings;

the engine release track;

western loading lane;

western container storage area;

sufficient of the rail terminal entry/exit gateway to serve the operation of the above; and

sufficient rail track and associated work to serve the above;

“relevant bodies” means in respect of each of the access works and the highway works the bodies referred to in respect of each of those works in column (4) of the tables in requirement 5 (design and phasing of access and highways works) ;

“RRS urban extension” means the urban extension on land to the west of the A5 opposite the main site which is the subject of a planning application to Rugby Borough Council (reference R11/0699); and

“weir removal project” means the removal of the A5 weir, replacement of the A5 and Danes Way culverts and regrading of the channel in accordance with the agreement reached with the Environment Agency and consented under section 109 (structures in, over or under a main river) of the Water Resources Act 1991 with consent numbers UT201100212, UT201100214 and UT201100215 or any varied consents issued by the Environment Agency or variation to the works agreed in writing with the Environment Agency.

Section 2 Time Limit

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

Section 3 Phases of development

No phase of the authorised development may commence until a written scheme setting out all the phases of the authorised development which must be in accordance with the phasing plan submitted with the application (Document 2.15) has been submitted to and approved by the relevant planning authority. The written scheme must include phasing details of—

(a) earthworks;

(b) ecological mitigation;

(c) rail infrastructure;

(d) roads within the main site;

(e) surface water and foul drainage;

(f) development plots;

(g) landscaping; and

(h) mains services.

The authorised development must be carried out in accordance with the phasing plan and the written scheme as approved from time to time in writing by the relevant planning authority.

Section 4 Design and phasing of access and highways works

The details of each item of the access works and highway works must be submitted to and approved in writing by the relevant body under article 16 (agreements with highway authorities) prior to the commencement and construction of each of those works. The details may be subject to alteration by prior approval in writing of the relevant body.

Section 5 Design and phasing of access and highways works

The access works and the highway works must be carried out in accordance with details submitted to and approved by the relevant body under requirement 4 and the undertaker must use reasonable endeavours to complete such works by no later than the triggers set out in the table below or such alternative later triggers as are agreed by the relevant bodies.

Access Works

Highway Works

Section 6 Detailed design approval

(1) The design guide contained in chapter 7 of the design and access statement must be reviewed and updated at 4 yearly intervals by the undertaker in agreement with the relevant planning authorities.

(2) The details of each phase of the authorised development must be in accordance with the approved development plans and the design guide contained in chapter 7 of the design and access statement as reviewed and updated in accordance with paragraph (1). The details of each phase must include details of the following where they are located within that phase—

(a) rail infrastructure (including bridges and tunnels);

(b) embankments;

(c) vehicular circulation routes;

(d) cycle tracks, footpaths and bridleways (including bridges);

(e) surface and foul drainage;

(f) vehicle parking;

(g) built development design and layout;

(h) roads within the main site;

(i) intermodal area;

(j) fuelling and maintenance areas;

(k) public viewing area;

(l) freight storage area (including containers);

(m) weighbridges;

(n) gatehouses;

(o) security fencing;

(p) substations;

(q) public transport infrastructure; and

(r) noise barriers.

Section 7 Detailed design approval

No phase of the authorised development is to commence until the above relevant details of that phase have been submitted to and approved in writing by the relevant planning authority. The authorised development must be carried out in accordance with the details as approved from time to time in writing by the relevant planning authority.

Section 8 Provision of Landscaping

No phase of the authorised development is to commence until a written landscaping scheme for that phase (including the strategic landscaping included within that phase) has been submitted to and approved in writing by the relevant planning authority. The landscaping scheme must be in accordance with the Green Infrastructure Plan contained in Appendix H5 of the environmental statement and must include details of all proposed soft landscaping works, including—

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

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

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

(d) retained historic landscape;

(e) implementation timetables; and

(f) arrangements for future maintenance.

The landscaping scheme may be subject to alteration by prior approval in writing of the relevant planning authority.

Section 9 Implementation and maintenance of landscaping

(1) All landscaping works must be carried out in accordance with the landscaping scheme approved under requirement 8 (provision of landscaping) and, unless otherwise agreed in writing by the relevant planning authority, to a reasonable standard in accordance with the relevant recommendations of British Standard 4428: 1989 (code of practice for general landscape operations (excluding hard surfaces)).

(2) The landscaping works must be implemented in accordance with the implementation timetables and maintained in accordance with the arrangements approved under requirement 8.

(3) Any tree or shrub planted as part of an approved landscape scheme that, within a period of 10 years after planting is removed, dies or becomes, in the opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless the relevant planning authority gives consent to any variation.

Section 10 Ecological Management Plan

(1) No phase of the authorised development is to commence until a written ecological management plan reflecting the survey results and ecological mitigation and enhancement measures included in the environmental statement has been submitted to and approved in writing by the relevant planning authority. The management plan may be subject to alteration by prior approval in writing of the relevant planning authority.

(2) The ecological management plan must include an implementation timetable and must be carried out as approved from time to time in writing by the relevant planning authority.

Section 11 M1 boundary slopes

(1) Prior to the commencement of Works No. 9(c), the details of the boundary slopes within the Order land abutting the M1 motorway (addressing landscaping and ground stability issues) must be submitted to and approved in writing by the relevant planning authority. The development must be carried out in accordance with the details approved from time to time in writing by the relevant planning authority.

(2) The details of the boundary slopes to be approved by the relevant planning authority under this requirement must reflect the preliminary assessment and methodology for geotechnical assessment set out in the Statement of Intent (Document 10.4) unless otherwise agreed in writing by the Highways Agency.

(3) Before approving any details under this requirement the relevant planning authority must first consult the Highways Agency.

Section 12 Fencing and other means of enclosure

No phase of the authorised development is to commence until written details of all proposed permanent fences, walls or other means of enclosure for that phase have been submitted to and approved in writing by the relevant planning authority. The development must be carried out in accordance with the details as approved from time to time in writing by the relevant planning authority.

Section 13 Construction Environmental Management Plan

No phase of the authorised development is to commence, including any preparatory earthworks or site levelling but excluding archaeological soil movement and ecological mitigation works, until a Construction Environmental Management Plan (“CEMP”) for that phase of development, drafted in accordance with the principles set out in the environmental statement, has been submitted to and approved in writing by the relevant planning authority. The CEMP must include—

(a) details of the methods to control noise and vibration arising from construction activities. These measures must include—

(i) proposals for monitoring of construction noise;

(ii) proposals for monitoring vibration; and

(iii) proposals for the introduction of mitigation measures or alternative working practices where the measurements exceed acceptable limits;

(b) details of the methods to be used to control dust and other emissions from the site;

(c) details of all temporary fencing, temporary buildings, compound areas and parking areas including arrangements for their removal following completion of construction;

(d) details of areas to be used for the storage of plant and construction materials and waste;

(e) details of the facilities to be provided for the storage of fuel, oil and other chemicals, including measures to prevent pollution;

(f) details of temporary lighting arrangements;

(g) measures to ensure that construction vehicles do not deposit mud on the public highway;

(h) a scheme for the routing of construction heavy goods vehicles accessing the site;

(i) details of mitigation measures to protect biodiversity interests within the site during the construction phases; and

(j) advisory signage at public access points advising of possible hazards including the potential for sudden noise.

The CEMP may be subject to alteration by approval in writing of the relevant planning authority. All construction works must be carried out in accordance with the CEMP as approved from time to time in writing by the relevant planning authority.

Section 14 Earthworks

No phase of the authorised development, excluding archaeological soil movement and ecological mitigation works, is to commence until details of the earthworks strategy relating to that phase of development including the extent of any material to be temporarily stored within the site and details of any surplus material to be removed from the site for disposal have been agreed in writing with the relevant planning authority. All earthworks must be carried out in accordance with the agreed earthworks strategy.

Section 15 Archaeology

(1) No phase of the authorised development is to commence until a programme of archaeological work in accordance with a written scheme of investigation in respect of that phase has been approved in writing by the relevant planning authority. This written scheme must provide for the investigation of areas of archaeological interest identified by the evaluation surveys which established the base line conditions in the environmental statement (Document 6.2) and include the following components, completion of each of which will trigger the phased discharging of the requirement—

(a) approval of a written scheme of investigation;

(b) fieldwork in accordance with the agreed written scheme of investigation;

(c) completion of a Post-Excavation Assessment report and approval of an Updated Project Design; to be submitted within 6 months of the completion of fieldwork, unless otherwise agreed in advance in writing by the relevant planning authority; and

(d) completion of analysis, preparation of site archive ready for deposition at a store approved by the relevant planning authority, production of an archive report, and submission of a publication report; to be completed within 2 years of the completion of fieldwork, unless otherwise agreed in advance in writing by the relevant planning authority.

(2) The programme of archaeological work may be subject to alteration by approval in writing by the relevant planning authority.

Section 16 Lighting Details

(1) Prior to the commencement of each phase of the authorised development, details of the proposed external lighting in that phase must be submitted to and approved in writing by the relevant planning authority.

(2) The approved lighting scheme must be implemented and maintained as approved from time to time during operation of the authorised development and no external lighting other than that approved under this requirement is to be installed.

(3) The details submitted under this requirement must include details of any lighting on any gantry cranes.

(4) Any means of illumination must be shielded or designed so that the source of illumination is not directly visible from the adjoining highways and railway.

Section 17 Building Sustainability

(1) No development of a warehouse unit is to take place until a BREEAM Pre-Assessment Report based upon the BREEAM 2011 method (or equivalent) has been submitted to and approved in writing by the relevant planning authority demonstrating that that unit is expected to achieve at least a BREEAM 2011 “Very Good” rating (BREEAM Industrial 2008 “Excellent”).

(2) The authorised development must be carried out in accordance with the details in the BREEAM Pre-Assessment Report (or equivalent) and a certificate must be provided within 3 months of completion or occupation (whichever is the sooner) of each warehouse confirming that the measures in respect of that warehouse committed to within the Pre-Assessment Report have been implemented.

Section 18 Lorry Park

(1) Prior to commencement of construction of the lorry park a management plan for its operation (which is to be for the benefit only of occupiers of the authorised development unless otherwise agreed by the undertaker) must be submitted to and approved by the relevant planning authority. The management plan must include details (approved under requirements 3 (phases of development), 6 and 7 (detailed design approval)) of the phases of its construction; the layout and landscaping of the parking areas; any noise mitigation measures; and details of a register to be kept to record all vehicles using the lorry park. The lorry park must subsequently be retained for the duration of the use of the authorised development and must be laid out and operated in accordance with the approved management plan as approved from time to time.

(2) The management plan may be subject to alteration by prior approval in writing by the relevant planning authority.

Section 19 Flood Risk and Surface Water Drainage

No part of the authorised development which encroaches upon the existing floodplain of the Clifton Brook Tributary, except the flood management works required to facilitate or mitigate the weir removal project (item (d) of Works No. 5), is to be brought into use until the completion of the weir removal project.

Section 20 Flood Risk and Surface Water Drainage

The proposed Clifton Brook Tributary Flood Storage Scheme is to be constructed as part of the authorised development in advance of the removal of the A5 weir element of the weir removal project unless another mitigation option approved by the Environment Agency has already been implemented. The proposed Flood Storage Scheme must comprise the construction of a flood storage bund and flow control structure across the full width of the floodplain at Lilbourne Meadows. The bund must be set to a level of 95.5m AOD and tie into the lorry park, which must be set at a minimum level of 95.5m AOD. The details of the proposed Flood Storage Scheme must accord with the agreement reached with the Environment Agency and consented under section 23 (prohibition on obstructions etc. in watercourses ) of the Land Drainage Act 1991 with consent number UT201100216 or any varied consents issued or variation to the works agreed in writing by the Environment Agency or the lead local flood authority.