The Hornsea One Offshore Wind Farm Order 2014

PART 1E+W+SPreliminary

Citation and commencementE+W+S

1.  This Order may be cited as the Hornsea One Offshore Wind Farm Order 2014 and comes into force on 31st December 2014.

InterpretationE+W+S

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(1);

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1980 Act” means the Highways Act 1980(3);

“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981(4);

“the 1989 Act” means the Electricity Act 1989(5);

“the 1990 Act” means the Town and Country Planning Act 1990(6);

“the 1991 Act” means the New Roads and Street works Act 1991(7);

“the 2003 Act” means the Electronic Communications Act 2003(8);

“the 2004 Act” means the Energy Act 2004(9);

“the 2008 Act” means the Planning Act 2008;

“the 2009 Act” means the Marine and Coastal Access Act 2009(10);

“ancillary works” means the ancillary works described in Part 2 of Schedule 1 and other works authorised by the Order, which are not development within the meaning of section 32 of the 2008 Act;

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

“the authorised project” means the authorised development and the ancillary works authorised by this Order;

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

“commence”, except where otherwise provided for, means commencing any material operation (as defined in section 155 of the 2008 Act) forming part of the authorised development other than operations consisting of site clearance, demolition work, archaeological investigations, investigations for the purpose of assessing ground conditions, and remedial work in respect of any contamination or other adverse ground conditions, and “commencement” shall be construed accordingly;

“deemed marine licence” means a licence set out in any of Schedules 8 to 11, and deemed by article 35 to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;

“electrical circuit” means a number of electrical conductors necessary to transmit electricity between two points within the authorised development; this comprises, in the case of HVAC transmission, three conductors which may be bundled as one cable or (onshore) take the form of three separate cables, and, in the case of HVDC transmission two conductors, which may be attached together or take the form of single cables: the circuit may include one or more auxiliary cables (normally fibre optic cables) for the purpose of control, monitoring, protection or general communications;

“electrical transmission station” means the onshore HVDC converter station or the HVAC substation required for connecting the electrical circuits to the National Grid;

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

“gravity base foundation” means either—

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

“horizontal directional drilling” refers to a boring technique involving drilling in an arc between two points;

“HVAC” means high voltage alternating current;

“HVDC” means high voltage direct current;

“the inter- array electrical circuits” means the circuits described in paragraph (b) of Work No.1, paragraph (b) of Work No.2 and paragraph (b) of Work No.3;

“the intertidal area” means the area between mean high water springs and mean low water springs;

“jacket foundation” means a lattice construction comprising tubular members and joints which are fixed to the seabed with piles (either driven or drilled piles or suction piles) and which will include platforms and J-tubes and may include braced monopiles and a transition piece;

“the land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order;

“the licence conditions” means the conditions set out in respect of each of the deemed marine licences in Part 2 of Schedules 8 to 11 respectively;

“the limits of deviation” means the limits of deviation for the scheduled works comprised in the authorised development shown on the works plans;

“the local planning authority” means, in relation to any land or part of the authorised development, the district council or unitary authority for the area in which the land or development is situated;

“maintain”, includes, to the extent assessed in the environmental statement—

but does not include the alteration, removal or replacement of foundations; and “maintenance” shall be construed accordingly;

“MHWS” means the highest level which spring tides reach on average over a period of time;

“MLWS” means the lowest level which spring tides reach on average over a period of time;

“the MMO” means the Marine Management Organisation or any successor to its statutory functions;

“mode of transmission” means whichever of the HVAC or HVDC technologies is chosen by the undertaker as the means of transmitting electricity by cable for the purposes of the authorised project;

“monopile foundation” comprises a large diameter steel or concrete tube or pile driven vertically into the seabed, J-tubes and platforms and may include external structural devices such as bracing members or steel anchor wires and a transition piece;

“offshore accommodation platform” means a platform housing or incorporating temporary accommodation, landing ports for vessels and/or helicopters, standby electricity generation equipment, marking and lighting and other equipment facilities to assist in the co-ordination of marine activities related to the authorised development;

“offshore HVAC collector substation” means a structure serving as a collection point for the inter-array electrical circuits and containing equipment with the purpose of transforming the electricity generated at the wind turbines to a higher voltage; it may also include a helicopter platform;

“offshore HVDC converter station” means a structure which contains equipment to convert HVAC electricity to HVDC electricity; it may also include a helicopter platform;

“offshore reactive compensation substation” means a structure housing electrical reactors for the purpose of limiting electrical losses in the course of HVAC transmission by providing reactive compensation; it may also include a helicopter platform;

“the offshore works plans” means the part of the works plans described as the offshore works plans;

“the onshore works plans” means the part of the works plans described as the onshore works plans;

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

“the Order limits” means the limits shown on the works plans within which the authorised project may be carried out;

“requirements” means those matters set out in Part 3 (requirements) of Schedule 1 to this Order;

“scheduled works” means the numbered works specified in Part 1 of Schedule 1 to this Order, or any part of them;

“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;

“suction pile” means a large diameter steel cylinder which is fixed to the base of the foundation and partially penetrates the seabed and remains in place using its weight and hydrostatic pressure differential;

“the tribunal” means the Lands Chamber of the Upper Tribunal;

“Trinity House” means the Corporation of Trinity House of Deptford Strond;

“undertaker” is to be construed in accordance with article 3;

“vessel” means every description of vessel, however propelled or moved, and includes a nondisplacement craft, a personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over water and which is at the time in, on or over water;

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

“Wind Farm Area 1” means the area within the limits of deviation for Work No. 1 of which the co-ordinates are specified in Part 1 of Schedule 1;

“Wind Farm Area 2” means the area within the limits of deviation for Work No. 2 of which the co-ordinates are specified in Part 1 of Schedule 1;

“Wind Farm Area 3” means the area within the limits of deviation for Work No. 3 of which the co-ordinates are specified in Part 1 of Schedule 1;

“wind turbine generator” means a structure comprising a tower, rotor with horizontal axis blades connected at the hub, nacelle containing mechanical and electrical equipment, ancillary equipment including access ladders and platforms, lifts, cables, corrosion protection systems, maintenance equipment, helihoist facilities and other associated equipment, which may include lighting and a helicopter platform, fixed to a foundation; and

“the works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order divided into three parts and described as the offshore works plans, the intertidal works plans and the onshore works plans.

(2) All distances, directions and lengths referred to in this Order are approximate, save in respect of the parameters referred to in requirements 2 and 4 in Part 3 of Schedule 1 and licence conditions 1 to 5 in Part 2 of each of Schedules 8 to 11 (deemed marine licences), and distances between parts of a work comprised in the authorised development are taken to be measured along that work.

(3) References in this Order to points identified by letters, with or without numbers, are to be construed as references to points so lettered on the works plans.

(4) References in this Order to numbered works, except in Schedules 8 to 11, are references to the scheduled works as numbered in Part 1 of Schedule 1.

(5) Unless otherwise indicated—

(a)all offshore co-ordinates shall be taken to be latitude and longitude degrees, minutes and seconds to three decimal places in WGS84 Datum; and

(b)all onshore co-ordinates shall be taken to be Eastings and Northings in OSGB36 Datum, British National Grid Projection.

PART 2E+W+SPrincipal powers

Development consent granted by the OrderE+W+S

3.—(1) Subject to the provisions of this Order and the requirements, development consent is granted to the following persons in respect of the scheduled works, along with associated development and ancillary works related to those works—

(a)to Njord Limited to construct, maintain and operate Work No.2;

(b)to Vi Aura Limited to construct, maintain and operate Work No.3; and

(c)to Heron Wind Limited to carry out all other works comprising the authorised development,

such development, associated development and ancillary works to be carried out within the Order limits, and Schedule 1 (authorised project) has effect.

(2) Each of the scheduled works must be constructed and maintained within the limits of deviation for that work.

(3) In carrying out any of the scheduled works the undertaker may deviate from the situations shown on the works plans and described in Schedule 1 to the extent of the limits of deviation.

(4) The grant of development consent under paragraph (1)(b) is subject to paragraph 3 of Part 1 of Schedule 1 (Work No. 3 not to be constructed if Work Nos. 1 or 2 include more than 80 wind turbine generators).

(5) Any reference in this Order to the “undertaker” means Heron Wind Limited except that—

(a)insofar as relevant to Work No. 2 and related associated development or ancillary works, “undertaker” means Njord Limited;

(b)insofar as relevant to Work No.3 and related associated development or ancillary works, “undertaker” means Vi Aura Limited; and

(c)“undertaker” means two or more of Heron Wind Limited, Njord Limited or Vi Aura Limited, where this is necessary for the fulfilment of the obligations in this Order.

Maintenance of authorised projectE+W+S

4.  Subject to the other terms of this Order, the undertaker may at any time maintain the authorised project, except to the extent that this Order or an agreement made under this Order, provides otherwise.

Operation of electricity generating stationsE+W+S

5.—(1) The undertaker is hereby authorised to operate the electricity generating stations comprised in the authorised development.

(2) This article does not relieve the undertaker of any requirement to obtain any permit or licence under any other legislation that may be required to authorise the operation of an electricity generating station.

PART 3E+W+SStreets

Street worksE+W+S

6.—(1) The undertaker may, for the purposes of the authorised project, enter on so much of any of the streets specified in Schedule 2 (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; and

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

(2) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Application of the 1991 ActE+W+S

7.—(1) The provisions of the 1991 Act mentioned in paragraph (2) which, together with other provisions of that Act, apply in relation to the carrying out of street works and any regulations made or code of practice issued or approved under those provisions apply (with the necessary modifications) in relation to the temporary stopping up, temporary alteration or temporary diversion of a street by the undertaker under the powers conferred by article 8 (temporary stopping up of streets) and the carrying out of works under article 6 (street works) whether or not the stopping up, alteration or diversion, or the carrying out of such works, constitutes street works within the meaning of that Act.

(2) The provisions of the 1991 Act referred to in paragraph (1) are—

• sections 54 (advance notice of certain works) and 55, subject to paragraph (3);

• section 55 (notice of starting date of works), subject to paragraph (3);

• section 57 (notice of emergency works);

• section 59 (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 68 (facilities to be afforded to street authority);

• section 69 (works likely to affect other apparatus in the street);

• section 76 (liability for cost of temporary traffic regulation);

• section 77 (liability for cost of use of alternative route); and

all such provisions as apply for the purposes of the provisions mentioned above.

(3) Sections 54 and 55 of the 1991 Act as applied by paragraph (1) have effect as if references in section 57 of that Act to emergency included a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

Temporary stopping up of streetsE+W+S

8.—(1) The undertaker, during and for the purposes of carrying out the authorised project, 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 (3), prevent all persons from passing along the street.

(2) Without limitation on the scope of paragraph (1), the undertaker may use any street temporarily stopped up under the powers conferred by this article within the Order limits as a temporary working site.

(3) 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.

(4) Without limitation on the scope of paragraph (1), the undertaker may temporarily stop up, alter or divert the streets specified in columns (1) and (2) of Schedule 3 (streets to be temporarily stopped up) to the extent specified, by reference to the letters and numbers shown on the works plans, in column (3) of that Schedule.

(5) The undertaker must not temporarily stop up, alter, divert or use as a temporary working site—

(a)any street specified as mentioned in paragraph (4) without first consulting the street authority; and

(b)any other street without the consent of the street authority which may attach reasonable conditions to any consent.

(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) If a street authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraph 5(b) that street authority is deemed to have granted consent.

Access to worksE+W+S

9.—(1) The undertaker may for the purposes of the authorised project—

(a)form and lay out means of access, or improve existing means of access, in the location specified in columns (1) and (2) of Schedule 4 (access to works); and

(b)with the approval of the local planning authority after consultation with the highway authority, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits, as the undertaker reasonably requires for the purposes of the authorised project.

(2) If the local planning authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraph (1)(b) that local planning authority shall be deemed to have granted consent.

Agreements with street authoritiesE+W+S

10.  A street authority and the undertaker may enter into agreements with respect to—

(a)the construction of any new street authorised by this Order; or

(b)the carrying out in the street of any of the works referred to in article 6(1) (street works).

(c)Such an agreement may, without prejudice to the generality of paragraph (1)—

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

(e)include an agreement between the undertaker and street authority specifying a reasonable time for the completion of the works; and

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

Highway improvementsE+W+S

11.—(1) The undertaker may carry out highway improvements to the plot marked 106 on the land plans.

(2) The highway improvements should be carried out in accordance with plans approved by the relevant highway authority, such approval not to be unreasonably withheld.

(3) If the relevant highway authority fails to notify the undertaker of its decision on whether to give approval within 28 days of receiving plans for approval that highway authority is deemed to have given approval.

PART 4E+W+SSupplemental powers

Discharge of waterE+W+S

12.—(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 project and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits and subject to receipt of consent under paragraph (3), 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(11) (right to communicate with public sewers).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; 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 pursuant to 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 pursuant to 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 2010(12).

(8) If a person who receives an application for consent or approval fails to notify the undertaker of a decision within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a) that person is deemed to have granted consent or given approval, as the case may be.

(9) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964(13) (interpretation), 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 Environmental Permitting (England and Wales) Regulations 2010 have the same meaning as in those regulations.

Authority to survey and investigate the landE+W+S

13.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits and—

(a)survey or investigate the land;

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

(c)without limitation on the generality 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 under paragraph (1) or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

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

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

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

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

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

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

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 authority conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

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

(a)under paragraph (4)(a) in the case of a highway authority; or

(b)under paragraph (4)(b) in the case of a street authority,

that authority is deemed to have granted consent.

PART 5E+W+SPowers of acquisition etc.

Guarantees in respect of payment of compensationE+W+S

14.—(1) The undertaker must not begin to exercise the powers in articles 15 to 25 of this Order in relation to any land unless it has first put in place either—

(a)a guarantee in respect of the liabilities of the undertaker to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land; or

(b)an alternative form of security for that purpose which has been approved by the Secretary of State.

(2) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under the Order is to be treated as enforceable against the guarantor by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.

(3) The guarantee or alternative form of security is to be in place for a maximum of 20 years from the date on which relevant power is exercised.

Compulsory acquisition of landE+W+S

15.  The undertaker may acquire compulsorily so much of the Order land shown numbered 404 on the land plans as is required for the authorised project or to facilitate, or is incidental, to it.

Compulsory acquisition of rightsE+W+S

16.—(1) In the case of the Order land specified in column (1) of Schedule 5 (land in which new rights etc., may be acquired) the undertaker may acquire compulsorily such new rights by creating them as may be required for the purpose specified in relation to that land in column (2) of that Schedule.

(2) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights)), where the undertaker acquires a right over land the undertaker is not required to acquire a greater interest in that land.

(3) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.

(4) In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker the undertaker may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.

(5) The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (4) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.

(6) Any person who suffers loss as a result of the extinguishment or 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.

Time limit for exercise of authority to acquire land compulsorilyE+W+S

17.—(1) After the end of the period of five years beginning on the day on which this Order is made—

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

(b)no declaration is to be executed under section 4 of the 1981 Act as applied by article 19 (application of the Compulsory Purchase (Vesting Declarations) Act 1981)(14).

(2) The authority conferred by article 23 (temporary use of land for carrying out the authorised project) ceases 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 was taken before the end of that period.

Private rightsE+W+S

18.—(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under article 15 (compulsory acquisition of land) are extinguished—

(a)as 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(1) of the 1965 Act (power of entry),

whichever is the earliest.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights under article 16 (compulsory acquisition of rights) are extinguished in so far as their continuance would be inconsistent with the exercise of the right—

(a)as from the date of the acquisition of the right by the undertaker (whether the right is acquired compulsorily or by agreement, or through the grant of lease of the land 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 earliest.

(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 under this article is entitled to compensation in accordance with the terms of section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) This article does not apply in relation to any right to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 25 (statutory undertakers) applies.

(6) Paragraphs (1) to (3) have effect subject to—

(a)any notice given by the undertaker before—

(i)the completion of the acquisition of the land or the acquisition of rights,

(ii)the undertaker’s appropriation of it,

(iii)the undertaker’s entry onto it, or

(iv)the undertaker’s taking temporary possession of it,

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

(b)any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(7) If any such agreement as is referred to in paragraph (6)(b)—

(a)is made with a person in or to whom the right is vested or belongs; and

(b)is expressed to have effect also for the benefit of those deriving title from or under that person,

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) Reference in this article to private rights over land includes reference to any trusts or incidents to which the land is subject.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981E+W+S

19.—(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 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 1981 Act are construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order.

Acquisition of subsoil or airspace onlyE+W+S

20.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of, or the airspace over, the land referred to in article 15 (compulsory acquisition of 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, or the airspace over, under paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) Paragraph (2) does not prevent article 21 (acquisition of part of certain properties) from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Acquisition of part of certain propertiesE+W+S

21.—(1) This article applies instead of section 8(1) of the 1965 Act (other provisions as to divided land) (as applied by section 125 of the 2008 Act) where—

(a)a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b)a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner must sell only the land subject to the notice to treat is, unless the undertaker agrees to take the land subject to the counter-notice, to be referred to the tribunal.

(5) If on such a reference the tribunal determines that the land subject to the notice to treat can be taken—

(a)without material detriment to the remainder of the land subject to the counter-notice; or

(b)where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken—

(a)without material detriment to the remainder of the land subject to the counter-notice; or

(b)where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat is deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determines that—

(a)the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b)the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determines that—

(a)none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b)the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) Where, by reason of a determination by the tribunal under this article, a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of six weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or manufactory or of land consisting of a house with a park or garden, the undertaker must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Rights under or over streetsE+W+S

22.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised project and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised project.

(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 be payable under paragraph (4) to any person who is an undertaker 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.

Temporary use of land for carrying out the authorised projectE+W+S

23.—(1) The undertaker may, in connection with the carrying out of the authorised project—

(a)enter on and take temporary possession of—

(i)the Order land specified in columns (1) and (2) of Part 1 of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised project specified in column (4) of that Schedule;

(ii)any of the land referred to in article 15 (compulsory acquisition of land) and Schedule 5 (land in which only new rights etc. may be acquired) in respect of which no notice of entry has been served under section 11 of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 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; and

(d)construct or carry out any works or operations specified in relation to that land in column (3) of Part 1 of Schedule 7, or any other mitigation works or operations (including land drainage restoration works).

(2) The undertaker may, for the purpose of obtaining access to construct the authorised project—

(a)make temporary use, in common with other persons enjoying rights over that land, of access routes over the land specified in Part 2 of Schedule 7; and

(b)carry out any necessary works to improve those access routes (and for that purpose only take temporary possession of the area in which the work is to be carried out for the duration of that work).

(3) Not less than 14 days before entering on and taking temporary possession of or using 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 not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a)in the case of 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 project specified in relation to that land in column (4) of Part 1 of Schedule 7;

(b)in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of this land was taken unless the undertaker has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act.

(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; but the undertaker is not required to—

(a)replace a building removed under this article; or

(b)restore the land on which any works have been constructed under paragraph (1)(d).

(6) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of any power conferred by this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

(9) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not precluded from—

(a)acquiring new rights over any part of that land under article 16 (compulsory acquisition of rights); or

(b)acquiring any part of the subsoil (or rights in the subsoil) of that land under article 20 (acquisition of subsoil or airspace only).

(10) Where the undertaker takes possession of or uses land under this article, the undertaker is not required to acquire the land or any interest in it.

(11) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

Temporary use of land for maintaining authorised projectE+W+S

24.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised project, the undertaker may—

(a)enter on and take temporary possession of any land referred to in paragraph (1) of article 23 (temporary use of land for carrying out the authorised project) if such possession is reasonably required for the purpose of maintaining the authorised project; 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 on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

(4) The undertaker 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 project 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 provisions of this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(11) In this article “the maintenance period”, in relation to any part of the authorised project, means the period of five years beginning with the date on which that part of the authorised project is first energised.

Statutory undertakersE+W+S

25.  Subject to the provisions of Schedule 12 (Protective Provisions), the undertaker may—

(a)exercise the powers conferred by articles 15 (compulsory acquisition of land) and 16 (compulsory acquisition of rights) in relation to so much of any land referred to in those articles as belongs to statutory undertakers;

(b)extinguish the rights of, remove or reposition the apparatus belonging to statutory undertakers over or within the Order land referred to in those articles.

Recovery of costs of new connectionsE+W+S

26.—(1) Where any apparatus of public utility undertakers or of a public communications provider is removed under article 25 (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 25 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) In this article—

(a)“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(15); and

(b)“public utility undertaker” has the same meaning as in the 1980 Act.

PART 6E+W+SOperations

Felling or lopping of trees and the removal of hedgerowsE+W+S

27.—(1) The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used with the authorised project.

(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) The undertaker may remove any hedgerows within the Order limits that may be required for the purposes of the carrying out of the authorised development.

(4) The undertaker is not required to comply with the requirements of regulation 5 of the Hedgerow Regulations 1997(16) in exercising the powers of paragraph (3) and it is not guilty of an offence under regulation 7(1) of those Regulations if it does so.

(5) 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.

(6) In this article “hedgerow” has the same meaning as in the Hedgerow Regulations 1997.

Trees subject to tree preservation ordersE+W+S

28.—(1) The undertaker may lop any tree within or overhanging land within the Order limits where that tree is subject to a tree preservation order which was made after 31st January 2013.

(2) In carrying out any activity authorised by paragraph (1)—

(a)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; and

(b)the duty contained in section 206(1) of the 1990 Act (replacement of trees) does not apply.

(3) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(4) 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.

PART 7E+W+SMiscellaneous and general

Operational land for purposes of the 1990 ActE+W+S

29.  Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as operational land for the purposes of that Act).

Disapplication of legislative provisionsE+W+S

30.  The following provisions do not apply in relation to the construction of works carried out for the purpose of, or in connection with, the construction or maintenance of the authorised project—

(a)section 109 of the Water Resources Act 1991(17);

(b)the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 to the Water Resources Act 1991, which require consent or approval for the carrying out of the works;

(c)section 23 of the Land Drainage Act 1991(18);

(d)the provisions of any byelaws made under section 66 of the Land Drainage Act 1991 which require consent or approval for the carrying out of the works.

Defence to proceedings in respect of statutory nuisanceE+W+S

31.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(19) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) 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 project and that the nuisance is attributable to the carrying out of the authorised project 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) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974(20); or

(ii)is a consequence of the construction or maintenance of the authorised project and that it cannot reasonably be avoided; or

(b)the defendant shows that the nuisance is a consequence of the use of the authorised project 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 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), do 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 project.

Procedure in relation to approvals etc under requirementsE+W+S

32.  Where an application is made to the relevant planning authority or authorities 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 local 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 and 79 of the 1990 Act (right of appeal in relation to planning decisions);

(b)any orders, rules or regulations which make provision in relation to appeals under section 78 of the 1990 Act,

insofar as those provisions are not inconsistent with the Infrastructure Planning (Environmental Impact Assessment Regulations) 2009(21) and any orders, rules or regulations made under the 2008 Act.

Abatement of offshore works abandoned or decayedE+W+S

33.—(1) Where the authorised development constructed seaward of MHWS or any part of it is abandoned or suffered to fall into decay the Secretary of State may, following consultation with the undertaker, by notice in writing require the undertaker at its own expense either to repair and restore the authorised development or any part, or to remove the authorised development and restore the site to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.

(2) In circumstances where the undertaker is required to remove the authorised development, without prejudice to any notice served under section 105(2) of the 2004 Act, the notice may also require the restoration of the site of the relevant part of the authorised development to a safe and proper condition within an area and to such an extent as may be specified in the notice.

(3) If the undertaker fails to comply in any respect with a notice served under this article within the period of 30 days beginning with the date of service of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; and any expenditure incurred by the Secretary of State in doing so is recoverable from the undertaker.

Transfer of benefit of OrderE+W+S

34.—(1) The undertaker with the consent of the Secretary of State may—

(a)transfer to another person (the “transferee”) any or all of their benefit of the provisions of this Order (including the deemed marine licences) and such related statutory rights as may be agreed between the undertaker and the transferee; or

(b)grant to another person (the “lessee”) for a period agreed between the undertaker and the lessee any or all of their benefit of the provisions of this Order (including the deemed marine licences) and such related statutory rights as may be so agreed.

(2) Where the consent of the Secretary of State is required under paragraph (1), the Secretary of State must consult the MMO prior to granting consent if such transfer or grant relates to the exercise of powers within the MMO’s jurisdiction.

(3) Where a transfer or grant has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (4), includes references to the transferee or the lessee.

(4) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

(5) The consent of the Secretary of State is not required for a transfer or grant for an agreed period of the benefit of any of the provisions (and any related statutory rights) relating to Works Nos. 1, 2 or 3 from one undertaker to another or of any of the provisions (and any related statutory rights) relating to Works Nos. 4 to 12 to another body licensed under section 6 of the 1989 Act.

(6) Prior to any transfer or grant under this article taking effect the undertaker must give notice in writing to the Secretary of State and to the MMO, and if such transfer or grant relates to the exercise of powers in their area, to the local planning authority, stating—

(a)the name and contact details of the person to whom the benefit of the powers will be transferred or granted;

(b)subject to paragraph (7), the date on which the transfer will take effect;

(c)the powers to be transferred or granted;

(d)pursuant to paragraph (4), the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted;

(e)where relevant, a plan showing the works or areas to which the transfer or grant relates; and

(f)a copy of the document effecting the transfer or grant signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted.

(7) The date specified under (6)(b) must not be earlier than the expiry of five days from the date of the receipt of the notice.

(8) The notice given under paragraph (6) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice.

Deemed marine licences under the Marine and Coastal Access Act 2009E+W+S

35.  The person who is the licence-holder for the purpose of each of Schedules 8 to 11 is deemed to be granted under Part 4 of the 2009 Act the deemed marine licence set out in the relevant Schedule, subject to the licence conditions set out in Part 2 of that Schedule.

Disapplication of constraints on works in the HumberE+W+S

36.  The following provisions do not apply to the authorised project—

(a)section 25 of the Humber Conservancy Act 1852(22);

(b)section 9(ii) (licences for execution of works) of the Humber Conservancy Act 1899(23); and

(c)section 6(2) (no erections in the Humber below river lines or without licence above river lines) of the Humber Conservancy Act 1905(24).

Saving for Trinity HouseE+W+S

37.  Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of  Trinity House.

Crown RightsE+W+S

38.—(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—

(a)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)—

(i)belonging to Her Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;

(ii)belonging to Her 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

(iii)belonging to a Government Department or held in trust for Her Majesty for the purposes of a Government Department without the consent in writing of that Government Department; or

(b)to exercise any right under this Order compulsorily to acquire an interest in any land which is Crown Land which is for the time being held otherwise than by or on behalf of the Crown without the consent in writing of the appropriate Crown authority.

(2) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions.

Certification of plans etcE+W+S

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

(a)the land plans;

(b)the offshore works plans, intertidal works plans and the onshore works plans;

(c)the book of reference;

(d)the environmental statement; and

(e)any other plans or documents referred to in this Order,

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.

Protection of InterestsE+W+S

40.  Schedule 12 (Protective provisions) has effect.

ArbitrationE+W+S

41.  Any difference under any provision of this Order, unless otherwise provided for, is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on application of either party (after giving notice in writing to the other) by the Secretary of State.