SCHEDULE 1AUTHORISED DEVELOPMENT
PART 2REQUIREMENTS
DecommissioningI117
1
Within 14 days of the date of final commissioning the undertaker must serve written notice on the relevant planning authority and the Environment Agency of the date of final commissioning.
2
No later than the 35th anniversary of the date of final commissioning, the undertaker and Environment Agency must—
a
undertake a review of the progress made by the Environment Agency in respect of managed realignment of the existing flood defence, with particular regard to the timescales for achieving—
i
all necessary consents and approvals;
ii
all the land and/or rights over land; and
iii
funding required for managed realignment of the existing flood defence; and
b
as soon as reasonably practicable following that review, submit a managed realignment programme to the relevant planning authority, which sets out the timescales for achieving the matters prescribed in sub-paragraphs to inclusively and the anticipated date by which the parts of the authorised development required for managed realignment of the existing flood defence must be decommissioned.
3
If the Environment Agency is unable to satisfy the requirements of sub-paragraph on or before the 35th anniversary of the date of final commissioning, the process set out in that sub-paragraph must be repeated every five years thereafter until the Environment Agency is able to submit a managed realignment programme to the relevant planning authority compliant with that sub-paragraph.
4
The Environment Agency must consult, and have regard to any representations received from, the undertaker in respect of the managed realignment programme before it is submitted to the relevant planning authority and if the undertaker and Environment Agency cannot agree the timescales to be included in the managed realignment programme those timescales shall be determined pursuant to article 35 (arbitration).
5
The Environment Agency may submit an application to the relevant planning authority for a decommissioning notice to be served on the undertaker in accordance with the managed realignment programme submitted pursuant to sub-paragraph or provided that it has first consulted, and had regard to, any submissions on the application made by the undertaker.
6
The application made pursuant to sub-paragraph must be accompanied by evidence that the Environment Agency has secured the matters prescribed in sub-paragraphs to inclusively.
7
Within eight weeks of receiving an application pursuant to sub-paragraph , or such other timescale as may be agreed in advance with the undertaker, the relevant planning authority must serve the decommissioning notice on the undertaker.
8
Before serving the decommissioning notice, the relevant planning authority must—
a
be satisfied on the evidence before it that the Environment Agency has secured the matters prescribed in sub-paragraphs to inclusively; and
b
consult, and have regard to, any submissions made by the undertaker.
9
The decommissioning notice must—
a
give reasons for the relevant planning authority determining that the Environment Agency has secured the matters prescribed in sub-paragraphs to inclusively;
b
include a plan detailing the extent of land within the Order limits required for managed realignment of the existing flood defence;
c
not be served—
i
within a period of 40 years from the date of final commissioning, or until such later time as any appeal, arbitration or judicial review of any decommissioning notice served pursuant to this Requirement has been determined, and provide that the authorised development may continue to generate and store electricity on a commercial basis until the later of those periods has been determined; and
ii
in respect of any land within the Order limits that is not required for managed realignment of the existing flood defence as shown on the plan required by of this sub-paragraph.
10
The undertaker must submit the decommissioning and restoration plan to the relevant planning authority for approval within 3 months of the earlier of—
a
all or part of the Order land ceasing to be used for the purposes of electricity generation or storage (either actively generating electricity or being available to generate electricity on a standby basis);
b
the date of the decommissioning notice served pursuant to sub-paragraph ; or
c
such other timescale as may be approved by the relevant planning authority in writing.
11
The decommissioning and restoration plan required by sub-paragraph must—
a
accord with the outline decommissioning and restoration plan;
b
state the date by which the authorised development will be decommissioned; and
c
not require the undertaker to decommission the existing flood defence located within the Order limits.
12
The decommissioning and restoration plan required must be implemented as approved.
13
In this requirement the following definitions have effect—
“date of final commissioning” means the date on which the authorised development commences operation by generating electricity on a commercial basis but excluding the generation of electricity during commissioning and testing;
“decommissioning and restoration plan” means the decommissioning and restoration plan approved by the relevant planning authority pursuant to sub-paragraph which sets out how the authorised development should be decommissioned and the specification to which the land should be restored having regard to the outline decommissioning and restoration plan and whether or not that land is required for managed realignment of the existing flood defence;
“decommissioning notice” means the notice to be served by the relevant planning authority on the undertaker pursuant to sub-paragraph which confirms the requirement for the authorised development to be decommissioned having regard to the managed realignment programme and the matters prescribed in sub-paragraph ;
“managed realignment of the existing flood defence” means the physical realignment of the existing flood defence located within the Order limits (that would require the removal of all or any part of Work No. 1, 2 and 3) as it exists at the date of this Order and as described in the Medway Estuary and Swale Strategy published on 10 September 2019 or as otherwise agreed between the undertaker and the Environment Agency, or determined by article 35 (arbitration); and
“managed realignment programme” means the managed realignment programme required to be submitted to the relevant planning authority by the Environment Agency pursuant to sub-paragraph or which sets out the timescales within which the Environment Agency reasonably expects the matters prescribed in sub-paragraphs to inclusively to be secured such that managed realignment of the existing flood defence can be achieved.