Article 23 Power to survey and investigate land, etc.

(1)

The Authority may for the purposes of this Order—

(a)

survey or investigate any land within the Order limits, the limits of deviation, any street along which the authorised street tramway is authorised to be laid and any street having a junction with such a street;

(b)

without limitation on the scope of sub-paragraph (a), make trial holes in such positions as the Authority thinks fit on the land 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 archaeological investigations on any such land;

(d)

take steps to protect or remove any flora or fauna on the land where the flora or fauna may be affected by the carrying out of the authorised works;

(e)

place on, leave on and remove from the land apparatus for use in connection with the exercise of any of the powers conferred by sub-paragraphs (a) to (d); and

(f)

enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (e).

(2)

No land may be entered, or equipment placed or left on or removed from the land, under paragraph (1), unless at least 7 days’ notice has been served on every owner and occupier of the land.

(3)

Notice given in accordance with paragraph (2) must include a statement of the recipient’s rights under paragraph (9).

(4)

If the Authority proposes to do any of the following, the notice must include details of what is proposed—

(a)

searching, boring or excavating;

(b)

leaving apparatus on the land;

(c)

taking samples;

(d)

an aerial survey;

(e)

carrying out any other activities that may be required to facilitate compliance with the instruments mentioned in paragraph (5).

(5)

The instruments referred to in paragraph (4)(e) are—

(a)

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment^f1; or

(b)

Council Directive 92/42/EEC of 21 May 1992 on the conservation of natural habitats and of flora and fauna^f2.

(6)

Any person entering land under this article on behalf of the Authority—

(a)

must, if so required, before or after entering the land produce written evidence of that person’s authority to do so;

(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;

(c)

may only enter and survey land at a reasonable time; and

(d)

must, if the land is unoccupied or the occupier is absent from the land when the person enters it, leave it as secure against trespassers as when the person entered it.

(7)

No trial holes are to be made under this article—

(a)

in a carriageway or footway without the consent of the highway authority; or

(b)

in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(8)

If either a highway authority or a street authority which receives an application for consent fails to notify the Authority of its decision within 28 days of receiving the application for consent—

(a)

under paragraph (7)(a) in the case of a highway authority; or

(b)

under paragraph (7)(b) in the case of a street authority,

that authority is deemed to have granted consent.

(9)

The Authority must pay compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(10)

Paragraphs (1) to (9) apply in relation to Crown land, however a person may only exercise the power conferred under paragraph (1) in relation to Crown land if the person has permission of the appropriate authority.

(11)

In this article, “Crown land” and “the appropriate authority” have the meaning given in section 293^f3 (preliminary definitions) of the 1990 Act.

(12)

Nothing in this article overrides the requirement to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979^f4.

Annotations

Footnotes

f1: OJ No. L 26, 28.1.2012, p.1.
f2: OJ No. L 206, 22.7.1992, p. 7.
f3: As amended by paragraph 6 of Schedule 3 to the Planning and Compulsory Purchase Act 2004 (c. 5), paragraph 7(1) and (4) of Schedule 7 to the Planning (Wales) Act 2015 (anaw 4) and paragraphs 1 and 33 of Schedule 12 to the Housing and Planning Act 2016 (c. 22).
f4: 1979 c. 46.