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The North Blyth Biomass Power Station Order 2013

Type Statutory-Instrument

Publication 2013-07-24

State In force

Department King's Printer of Acts of Parliament

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Made: 24th July 2013

Coming into force: 15th August 2013

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 120 and 149A of the 2008 Act, makes the following Order:

Citation and commencement

1

This Order may be cited as the North Blyth Biomass Power Station Order 2013 and shall come into force on 15th August 2013.

Interpretation

2

(1) Except for Schedule 4, which is subject to the definitions provided in that Schedule, in this Order—

“the 1961 Act” means the Land Compensation Act 1961[^f00005];

“the 1965 Act” means the Compulsory Purchase Act 1965[^f00006];

“the 1980 Act” means the Highways Act 1980[^f00007];

“the 1990 Act” means the Town and Country Planning Act 1990[^f00008];

“the 1991 Act” means the New Roads and Street Works Act 1991[^f00009];

“the 2008 Act” means the Planning Act 2008[^f00010];

“the 2009 Act” means the Marine and Coastal Access Act 2009[^f00011];

“the authorised development” means the development and associated 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;

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

“carriageway”, “highway” and “highway authority” have the same meanings as in the 1980 Act;

“Commission” means the Blyth Harbour Commission;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

“the deemed Marine Licence” means the marine licence set out in Schedule 4 and deemed by article 27 to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;

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

“elevations plan” means the elevations plan certified by the Secretary of State as the elevations plan for the purposes of this Order;

“the Environment Agency” means the body established under the Environment Act 1995[^f00012] or any successor to its statutory functions;

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

“the heat radiation contour plan” means the heat radiation contour plan certified by the Secretary of State as the heat radiation contour plan for the purposes of this Order;

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

“maintain” includes inspect, maintain, and repair the authorised development; and “maintenance” shall be construed accordingly;

“massing plan” means the massing plan certified as such by the Secretary of State for the purposes of this Order;

“the Marine Management Organisation” or “MMO” means the body of that name created under the 2009 Act or any successor to its statutory functions;

“Order land” means the land shown on the land plan which is within the boundary of land required for or affected by the proposed development, and described in the book of reference;

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

“Owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00013];

“relevant planning authority” means Northumberland County Council as planning authority for the area in which the land to which the provisions of this Order apply is situated and any successor to its statutory function as planning authority for the area in which the authorised development is located;

“the Requirements” means the requirements set out in Schedule 2 (Requirements) to this Order;

“statutory undertaker” means any person falling within section 127(8), 128(5) or 129(2) of the 2008 Act;

“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 III of the 1991 Act;

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

“the undertaker” means, subject to article 7(2) of this Order, North Blyth Energy Limited (company number 7595351);

“vessel” means a ship, boat, raft or water craft of any description and includes non-displacement craft, seaplanes and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily) and a hovercraft or other amphibious vehicle;

“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 plan” means the works plan certified by the Secretary of State as the works plan 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 shall be taken to be measured along that work.

(4) References in this Order to numbered Requirements are to the Requirements with those numbers in Schedule 2 (Requirements).

(5) References in this Order to numbered “Works” or “Work No(s).” are to the works of the authorised development with those numbers in Schedule 1 (authorised development) and shown on the works plan.

3

(1) Subject to the other terms of this Order, including the Requirements and the provisions and conditions of the deemed Marine Licence, the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

(2) The authorised development may be constructed in the lines or situations shown on the works plan and, subject to the provisions of the Requirements, in accordance with the drawings specified in the Requirements.

(3) In constructing or maintaining Work Nos. 1(v), 1(w), 3A to D, 4, 5 and 9 the undertaker may deviate laterally from the lines or situations shown on the works plan within the limits of deviation.

Procedure in relation to approvals etc under the Requirements

4

Where an application is made to the relevant planning authority for any consent, agreement or approval required by any of the Requirements, the following provisions apply in respect of that application as they would apply if the consent, agreement or approval so required was required by a condition imposed on a 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 a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission.

Maintenance of authorised development

5

Subject to—

(a) the other terms of this Order, including the Requirements and the provisions and conditions of the deemed Marine Licence; and

(b) any contrary provision in an agreement made under this Order,

the undertaker may at any time maintain the authorised development.

Operation of generating station

6

(1) The undertaker is authorised to operate the generating station comprised in the authorised development for the purpose of generating electricity.

(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 from time to time to authorise the operation of a generating station.

Benefit of Order

7

(1) Subject to the terms of this article, the provisions of this Order shall have effect solely for the benefit of the undertaker.

(2) Subject to paragraph (5), the undertaker may with the consent of the Secretary of State—

(a) transfer to another person (the “transferee”) any or all of the benefit of the provisions of this Order 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 the benefit of the provisions of this Order and such related statutory rights as may be so agreed.

(3) Where an agreement has been made in accordance with paragraph (2) references in this Order to the undertaker, except in paragraph (4), shall include references to the transferee or lessee.

(4) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (2) shall be 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 provisions of articles 13(1), 16(1), 19(1) and 22 shall have effect only for the benefit of the named undertaker and a person who is a transferee or lessee as is referred to in paragraph (2) and is also—

(a) the transferee or lessee of the land occupied by Work No. 1, and

(b) a person who holds a licence under the Electricity Act 1989[^f00014].

Defence to proceedings in respect of statutory nuisance

8

(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990[^f00015] (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 shall 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 development and that the nuisance is attributable to the carrying out of the authorised development 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[^f00016]; or

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

(b) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development which is being used in accordance with a scheme of monitoring and attenuation of noise agreed with the relevant planning authority as described in Requirement 36; or

(ii) is a consequence of the use of the authorised development 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), shall 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 development.

Street works

9

(1) The undertaker may, 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;

(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) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1); and all such other provisions as apply for the purpose of the provisions mentioned above.

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

Agreements with street authorities

10

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

(a) any alteration or diversion of a street authorised by this Order; or

(b) the carrying out in the street of any of the works referred to in article 9(1) (street works).

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

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

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

Discharge of water

11

(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 pursuant to paragraph (1) shall be determined as if it were a dispute under section 106 of the Water Industry Act 1991[^f00017] (right to communicate with public sewers).

(3) The undertaker shall 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 shall not be unreasonably withheld.

(4) The undertaker shall 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 shall not be unreasonably withheld; and

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

(5) The undertaker shall 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 shall 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) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by regulation 38 of the Environmental Permitting Regulations (England and Wales) 2010[^f00018] (offences).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964[^f00019] (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991[^f00020] have the same meaning as in that Act.

Authority to survey and investigate the land

12

(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 prejudice to 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 prejudice to 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 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) shall, if so required entering the land, 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 shall be made under this article—

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

(b) in a private street without the consent of the street authority, but such consent shall not be unreasonably withheld; or

(5) The undertaker shall 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.

Compulsory acquisition of land

13

(1) Subject to the provisions of article 16, the undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate, or is incidental, to it.

(2) As from the date on which a compulsory acquisition notice under section 134(3) of the 2008 Act is served or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, that land or that part of it which is vested (as the case may be) shall be discharged from all rights, trusts and incidents to which it was previously subject.

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

Compulsory acquisition of land – incorporation of the minerals code

14

Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981[^f00021] (minerals) are incorporated in this Order subject to the modifications that—

(a) paragraph 8(3) is not incorporated; and

(b) for “the acquiring authority” substitute “the undertaker”.

Time limit for exercise of authority to acquire land compulsorily

15

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

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

(b) no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981[^f00022] as applied by article 18 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

Compulsory acquisition of rights

16

(1) The undertaker may only acquire compulsorily the existing rights and create and acquire compulsorily the new rights described in plots 2 to 15 of the book of reference and shown coloured blue on the land plan.

(2) As from the date on which a compulsory acquisition notice is served or the date on which any new right is vested in the undertaker, whichever is the later, the land over which any new rights is acquired shall be discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right.

(3) Subject to section 8 of the 1965 Act, as substituted by article 20 (acquisition of part of certain properties), where the undertaker acquires an existing right over land under paragraph (1), the undertaker shall not be required to acquire a greater interest in that land.

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

Private rights of way

17

(1) Subject to the provisions of this article, all private rights of way over land subject to compulsory acquisition under this Order shall be 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).

(2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being within the limits of land which may be acquired shown on the land plan, is required for the purposes of this Order shall be extinguished on the appropriation of the land by the undertaker for any of those purposes.

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

(4) This article does not apply in relation to any right of way to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 22 (statutory undertakers) applies.

(5) Paragraphs (1) to (3) shall have effect subject to—

(a) any notice given by the undertaker before—

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

(ii) the undertaker’s appropriation of it,

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

(iv) the undertaker’s taking temporary possession of it, that any or all of those paragraphs shall not apply to any right of way specified in the notice; and

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

(6) If any such agreement as is referred to in paragraph (5)(b)—

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

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

it shall be effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

18

(1) The Compulsory Purchase (Vesting Declarations) Act 1981[^f00023] shall apply as if this Order were a compulsory purchase order.

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

(3) In section 3 (preliminary notices), for subsection (1) there shall be 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 shall 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 shall be substituted “(1)” and after “given” there shall be inserted “and published”.

(5) In that section, for subsections (5) and (6) there shall be 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 shall be inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) shall be 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)” shall be omitted.

(8) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 shall be 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 only

19

(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in paragraph (1) of article 13 (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 under paragraph (1), the undertaker shall not be required to acquire an interest in any other part of the land.

(3) Paragraph (2) shall not prevent article 20 (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 properties

20

(1) This article shall apply 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 shall be required to 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 shall be required to sell only the land subject to the notice to treat shall, unless the undertaker agrees to take the land subject to the counter-notice, 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 shall be required to 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 shall be 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 shall be 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 shall be 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 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, shall 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 shall 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 streets

21

(1) The undertaker may 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) shall 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, shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Compensation shall 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.

Statutory undertakers

22

(1) The undertaker may—

(a) acquire compulsorily the land belonging to statutory undertakers shown on the land plan within the limits of the land to be acquired and described in the book of reference; and

(b) acquire compulsorily the new rights over land belonging to statutory undertakers shown on the land plan and described in the book of reference.

(2) Nothing in this Order shall authorise the undertaker to—

(a) extinguish the rights of statutory undertakers in connection with their apparatus; or

(b) remove or reposition apparatus belonging to statutory undertakers.

Recovery of costs of new connections

23

(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 22 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be 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) shall not apply in the case of the removal of a public sewer but where such a sewer is removed under article 22, 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, shall be 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) This article shall not have effect in relation to apparatus to which Part 3 of the 1991 Act applies.

(4) In this paragraph—

“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003[^f00024]; and

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

24

(1) Subject to the following provisions of this article, the undertaker may not under article 9 (street works) break up or open a street where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act)—

(a) is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority; or

(b) forms part of a level crossing belonging to any such undertakers or to such an authority or to any other person,

except with the consent of the undertakers or authority or, as the case may be, of the person to whom the level crossing belongs.

(2) Paragraph (1) shall not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act.

(3) A consent given for the purpose of paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but shall not be unreasonably withheld.

(4) In this article “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary or harbour.

Application of landlord and tenant law

25

(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants shall prejudice the operation of any agreement to which this article applies.

(3) Accordingly, no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Operational land for purposes of the 1990 Act

26

Development consent granted by this Order shall 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).

Deemed licence for purposes of the 2009 Act

27

The undertaker is deemed to have been granted a licence under Part 4 Chapter 1 of the 2009 Act to carry out the works described in Schedule 4, subject to the provisions set out in that Schedule, which are deemed to have been attached to the licence by the Secretary of State under Part 4 of the 2009 Act.

Certification of plans etc

28

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

(a) the book of reference;

(b) the design and access statement;

(d) the environmental statement;

(e) the heat radiation contour plan;

(f) the land plan;

(g) the massing plan; and

(h) the works plan

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

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

Arbitration

29

Any difference under any provision of this Order, unless otherwise provided for other than a difference which falls to be determined by the Tribunal, shall 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) by the President from time to time of the Law Society of England and Wales.

Crown rights

30

(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 to take, use, enter upon or in any manner interfere with any land, hereditaments, or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary) belonging to—

(a) Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those Commissioners; or

(b) 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.

(2) No interest in Crown land may be acquired compulsorily under this Order unless the appropriate Crown authority consents to the acquisition.

(3) A consent under paragraph (1) or (2) may be given unconditionally or subject to such conditions or upon such terms as may be considered necessary or appropriate.

Protective provisions

31

Schedule 5 (protective provisions) shall have effect.

SCHEDULE 1 — Authorised development

1

In Northumberland the construction use and maintenance of a nationally significant infrastructure project as defined in sections 14(1)(a) and 15 of the 2008 Act comprising—

2

Associated development within the meaning of section 115(2) of the 2008 Act comprising—

SCHEDULE 2 — Requirements

Interpretation

1

(1) In this Schedule—

“applicable mandatory sustainability criteria” means— the mandatory sustainability criteria which the undertaker must comply with from time to time as a condition of eligibility of the authorised development for financial assistance under a relevant assistance regime; or if financial assistance has been granted under a relevant assistance regime in respect of the authorised development for a limited period of time and that period has elapsed so that the authorised development is no longer eligible for financial assistance under any relevant assistance regime, those criteria by compliance with which the operation of the authorised development was most recently eligible for such assistance, and biomass fuel feedstocks shall be taken to comply with the applicable mandatory sustainability criteria if, at that time, the undertaker has reason to believe that they comply with the applicable mandatory sustainability criteria;

“biomass fuel feedstocks” means— wood fuel, in the form of virgin wood fibre (chipped roundwood, slabwood, offcuts, peelings, butt reducing chips and bark), recycled wood chips, wood pellets and wood briquettes; or energy crops; or other biomass material, including residues from processing cereals (wheat, barley and maize) and oilseeds (rapeseed, sunflower and other oilseeds), that qualify as biomass as defined under the provisions of the Renewables Obligation Order 2009[^f00025] (as amended from time to time by other subsequent legislation relevant to power generation);

“CEMP” means a construction and environmental management plan relating to the construction of the authorised development;

“code of construction practice” means a code of construction practice agreed by the relevant planning authority prior to commencement of the authorised development;

“commence” means the first carrying out of a material operation for the construction of the authorised development and commencement and commenced shall be defined accordingly;

“commissioning” means the testing of the authorised development prior to its first operation for commercial export of electricity and the phrase “first brought in to use” shall not apply to commissioning;

“construction site” means the area of onshore works of the authorised development;

“construction work” means operations to build the authorised development but does not include any internal fitting out or commissioning activities;

“European protected species” has the same meaning as in regulations 40 and 44 of the Conservation (Natural Habitats, &c.) Regulations 2010[^f00026];

“first commercial use” means the first export of electricity from the authorised development for commercial purposes;

“heavy commercial vehicles” means any vehicles exceeding 3 tonnes in weight employed by the undertaker or its contractors or their subcontractors for the purpose of movement of aggregates plant and materials to and from the construction site during the construction period or employed for the purposes of delivering fuel stock during the operation of the authorised development as the case may be;

“mandatory sustainability criteria” means criteria relating to the sustainability of biomass for energy use (other than biofuels and bioliquids) which are prescribed in a relevant assistance regime;

“material operation” has the same meaning as section 155 of the 2008 Act;

“Natural England” means the body established by section 1 of the Natural Environment and Rural Communities Act 2006[^f00027] and includes any successor to its statutory functions;

“relevant assistance regime” means the provisions of any legislation or other legally binding arrangements established or approved by Government under or by virtue of which the generation of electricity from biomass fuel feedstocks on a commercial basis qualifies for financial assistance by reason of the burning of biomass fuel feedstocks which comply with prescribed mandatory sustainability criteria; and

“site” shall mean that part of the land within Order limits shown on 02377 D 2521-02 and titled “North Blyth Site Plan”.

(2) References to any statutory body shall include that body’s successor bodies having jurisdiction over the authorised development.

Time limits

2

The authorised development shall not be commenced after the expiration of five years of the date this Order comes into force.

Detailed design

3

(1) No part of the authorised development may commence until details of the following (which must accord with the principles of the design and access statement) have been submitted to and approved by the relevant planning authority—

(a) details of the external appearance (including materials which are proposed to be used and proposed finishes) of Work Nos. 1(a) to (d), (f) to (j), (l), (m), (o), (p) and (s) comprised in the authorised development;

(b) details of the architectural feature comprising translucent cladding shown on the elevations plan and forming part of Work No. 1(a) which must not emit light at a level greater than 60 lux when measured at any point within 20 metres of Work No. 1(a) at ground level between dusk and dawn in any 24 hour period;

(c) details of vehicular access and circulation roads, drainage, parking, cycle parking, hardstanding, storage tanks and silos, loading and unloading facilities and turning facilities;

(d) details for the minimisation of operational dust emitted by the authorised development prepared in accordance with the principles in paragraphs 7.1.6 and 7.8.6 of the environmental statement;

(e) details for the minimisation of operational noise emitted by the authorised development prepared in accordance with the principles in paragraph 8.8.18 of the environmental statement; and

(f) details of the metal mesh screens to be provided on the north east elevation of the authorised development more particularly shown on the elevations plan.

The development shall thereafter be carried out fully in accordance with the approved details.

(2) The details submitted to the relevant planning authority in accordance with sub-paragraph (1) shall demonstrate that—

(a) in respect of Work No. 1(a) excluding the architectural feature comprising translucent cladding shown on the elevations plan; Work Nos. 1(c) to 1(s) and Work No. 7 the heights of the buildings must not exceed the heights from existing ground level shown on the massing plan;

(b) in respect of Work No. 1(a), the architectural feature comprising translucent cladding shown on the elevations plan must be no greater than 4.5 metres in height when measured from the roof level of Work No. 1(a) and no greater than 10 metres in width; and

(c) Work Nos. 1(a) to (d), (f) to (j), (l), (p) and (s) comprised in the authorised development must comply with the principles contained in numbers 1 to 8 of the elevational treatment list (including references to proposed colours) at paragraph 4.21 of the design and access statement.

(3) Work No. 1(b) must be finished in a light grey colour and must not be less than 100 metres in height measured from existing ground level, nor exceed 105 metres in height measured from existing ground level and its diameter must not exceed 5 metres.

(4) Save in relation to Work No. 1(l), for which micrositing within a distance of 10 metres from its position shown on the elevations plan is permitted, Work Nos. 1(a) to (d), (f) to (j), (p) and (s) comprised in the authorised development must accord with the elevations plan.

Highway accesses

4

(1) No part of the authorised development may commence until written details of the siting, design and layout of any new permanent or temporary means of access to a highway to be used by vehicular traffic, or any alteration to an existing means of access to a highway used by vehicular traffic, has, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the relevant planning authority.

(2) The highway accesses must be constructed in accordance with the approved details prior to first commercial use of the authorised development.

Fencing and other means of enclosure

5

(1) No part of the authorised development may commence until written details of all proposed permanent fences, walls or other means of enclosure have, following consultation with Northumbria Police, been submitted to and approved by the relevant planning authority.

(2) The authorised development, and any construction sites, must remain securely fenced at all times during construction of the authorised development.

(3) Any temporary fencing must be removed within a period of twelve calendar months following the first commercial use of the authorised development.

(4) Any approved permanent fencing of the authorised development must be completed before first commercial use of the authorised development.

Surface and foul water drainage

6

(1) No part of the authorised development may commence until written details of the surface and foul water drainage systems (including means of pollution control and the principles set out in 14.7.12 of the environmental statement) have been submitted to and approved by the relevant planning authority and the sewerage and drainage authority.

(2) The surface and foul water drainage system must thereafter be constructed in accordance with the approved details and operational before first commercial use of the authorised development.

Surface water drainage – contamination

7

(1) Any surface water contaminated with hydrocarbons or silt must be treated to remove contamination in a manner previously approved in writing by the relevant planning authority in consultation with the Environment Agency prior to any discharge to any public sewer or water course.

(2) Appropriate interceptors (including oil interceptors) must be fitted to all appropriate drainage systems in accordance with a scheme to be submitted to and approved in writing by the relevant planning authority prior to commencement of the authorised development.

(3) The approved details must thereafter be maintained for the lifetime of the authorised development to the reasonable satisfaction of the relevant planning authority.

(4) A scheme for the prevention of contamination of controlled waters by cementitious materials must be prepared in accordance with paragraphs 15.6.23 to 15.6.26 of the environmental statement and submitted to and approved in writing by the relevant planning authority prior to commencement of the authorised development. The authorised development shall be carried out in accordance with the approved scheme. All concrete and cement mixing and washing areas must be bunded and sited at least 10 metres from any watercourse or surface water drain to minimise the risk of runoff entering a watercourse.

(5) Prior to any concrete being sprayed or poured in an area that may give rise to concrete entering the marine environment, the undertaker must ensure that suitable protective sheeting is first provided in that area to prevent rebound or windblown concrete from entering the marine environment. Thereafter any rebounded or windblown material must be cleared away before the sheeting is removed.

Contaminated land and groundwater

8

(1) No part of the authorised development may commence until a written scheme (which may be included in the CEMP) has been prepared (including those measures proposed in paragraph 15.6.13 of the environmental statement) to deal with the contamination of any land, including groundwater, within the Order limits which is likely to cause significant harm to persons or pollution of controlled waters or ground waters or the environment has been submitted to and approved by the relevant planning authority in consultation with the Environment Agency.

(2) The scheme shall include an investigation and assessment report, prepared by a specialist consultant approved by the relevant planning authority, to identify the extent of any contamination and the remedial measures to be taken to render the land fit for its intended purpose, together with a management plan which sets out long-term measures with respect to any contaminants remaining on the site.

(3) Remediation must be carried out in accordance with the approved scheme.

(4) If during the construction of the authorised development further contamination not previously identified is found to be present then no further work may be carried out on that part of the authorised development until a risk assessment has been carried out and the results of that risk assessment have been provided to the relevant planning authority.

Disposal of contaminated materials

9

(1) No part of the authorised development may commence until a scheme for the disposal of contaminated material (including contaminated water) arising from the construction of the authorised development has been submitted to and approved by the relevant planning authority in consultation with the Environment Agency.

(2) Thereafter all contaminated material must be disposed of to licensed disposal facilities or treated where found in accordance with that scheme and to the reasonable satisfaction of the relevant planning authority. All reasonably required details of such disposal must be provided to the relevant planning authority on request.

Earthworks and remediation

10

(1) The CEMP must include details of the processes for dealing with remediation specified in paragraphs 4.5.53, 4.5.54 and 15.6.5 of the environmental statement. The CEMP must address, where necessary, detailed processes for dealing with the identified risks of harm or pollution from contaminant sources and will include procedures for the validation and auditing of the earthworks and any required remediation to ensure compliance with the CEMP.

(2) All earthworks must be carried out in accordance with the CEMP.

Ecological management

11

(1) The CEMP must include a written ecological management plan reflecting the ecological mitigation and enhancement measures included in the environmental statement and in particular the mitigation measures proposed for Grayling Butterflies, Common Lizards and Otters referred to at section 10.7 of the environmental statement.

(2) The written ecological management plan must include—

(a) proposals for the timing of any works which may impact on ecological receptors;

(b) appropriate working practices to be adopted to mitigate impacts on ecological receptors, including fencing to exclude workmen from potential nesting areas;

(c) in relation to Common Lizards, a strategy for their protection and translocation if encountered which shall include identification of proposed receptor sites;

(d) proposals for the creation, management and monitoring of habitat; and

(e) proposals for record taking and reporting to the relevant planning authority.

(3) No on-site vegetation clearance or demolition works may occur within the period March to August (inclusive) of any year unless a suitably qualified ecologist has first undertaken a checking survey immediately prior to clearance or demolition and confirms that no active wild bird nests are present and a report of his findings has been provided to and agreed with the relevant planning authority. The authorised development must thereafter be carried out fully in accordance with the recommendations of the submitted report.

(4) The CEMP must include an implementation timetable for the ecological mitigation and enhancement measures and must be carried out as approved.

Code of construction practice and CEMP

12

(1) No part of the authorised development may commence until a code of construction practice has been submitted to and approved by the relevant planning authority.

(2) No part of the authorised development may commence until a CEMP drafted in accordance with the principles set out in paragraphs 4.5.6 to 4.5.10 of the environmental statement and the code of construction practice has, after consultation with the relevant planning authority, been submitted to and approved by the relevant planning authority. The CEMP must deal in particular with—

(a) lighting during construction;

(b) construction noise and vibration management;

(d) sustainable waste management in a site waste management plan;

(e) traffic management and materials storage on site;

(f) water management (surface water and groundwater) including consideration of the principles in paragraphs 15.6.16 to 15.6.18 and 15.6.27 of the environmental statement;

(g) the identification of commissioning operations which may generate noise and how they will be notified to the relevant planning authority and to local residents;

(h) maintenance of relevant equipment in good working order and its being fitted with the appropriate silencers, mufflers or acoustic covers where applicable so as to reduce noise;

(i) the location of and screening of stationary noise sources (including demonstrating their location being as far away as reasonably possible from nearby residential properties) and where necessary the location of acoustic barriers to shield such noise sources;

(j) the movement of vehicles to and from the construction site so as to minimise noise;

(k) the supervision of employees to secure compliance with the noise control measures adopted;

(l) procedures and activities to prevent and control spillage of oil, chemicals and other potentially harmful liquids in accordance with paragraphs 11.6.2 and 15.6.19 of the environmental statement;

(m) storage of materials in accordance with paragraphs 14.7.13 to 14.7.17 and 15.6.17 of the environmental statement;

(n) health and safety procedures in accordance with paragraphs 15.6.7 to 15.6.9 and 15.6.19 of the environmental statement; and

(o) the location, design and timing for erecting a board fence to reduce the potential for visual impacts during construction.

(3) All remediation, construction and commissioning works shall be undertaken in accordance with the code of construction practice and the CEMP.

(4) The operation and maintenance of the authorised development must be undertaken in accordance with the CEMP or any variation or replacement thereof previously approved by the relevant planning authority.

Suppression of dust and dirt during construction

13

(1) No part of the authorised development may commence until there has been submitted to and approved in writing by the relevant planning authority a scheme for the provision of wheel cleansing facilities for any heavy commercial vehicles or mobile plant which has an operating weight exceeding 3 tonnes and is associated with construction of the authorised development.

(2) Such facilities approved under sub-paragraph (1) must be installed in accordance with a timescale to be approved in writing by the relevant planning authority and must be maintained throughout the period of construction of the authorised development.

(3) Any heavy commercial vehicle or mobile plant which has an operating weight exceeding 3 tonnes and is associated with the construction of the authorised development, other than those vehicles or mobile plant exclusively using tarmac and concrete roads, must whenever it leaves the construction site, pass through wheel cleansing facilities provided pursuant to sub-paragraph (1) above prior to entering the highway.

(4) No part of the authorised development may commence until there has been submitted to and approved in writing by the relevant planning authority a scheme employing reasonably practicable measures for the suppression of dust during the period of construction of the authorised development in accordance with paragraphs 7.8.4 and 7.8.5 of the environmental statement. The measures approved in the scheme for dust suppression must be employed throughout the period of the construction of the authorised development.

(5) Any open bodied heavy commercial vehicle carrying dry loose aggregate, cement or soil into and out of the construction site must be sheeted.

Construction traffic routing and management plan

14

(1) No part of the authorised development may commence until written details of a construction phase traffic management plan (TMP) to be used for the management of construction traffic is, after consultation with the local highway authority and the Highways Agency, submitted to and approved by the relevant planning authority.

(2) The TMP must include details of the routing strategy and procedures of the notification and conveyance of any abnormal indivisible loads (AIL). It must also include agreed routes, number of abnormal loads to be delivered by road and identification for AILs that will be delivered by road. The details thereafter approved must be adhered to at all times when AILs are to be transported to or from the authorised development by road.

(3) The TMP shall also include details of the following—

(a) identification of the construction programme and start and finish time of all personnel working on the construction site;

(b) identification of the times when major items of plant and equipment are to be transported to and from the construction site by road;

(c) any necessary measures for the temporary protection of carriageway surfaces; for the protection of statutory undertakers’ plant and equipment and for the temporary removal of street furniture;

(d) measures to mitigate the traffic impact of AILs;

(e) description of the methods of transport to be used by construction personnel to minimise overall traffic impact;

(f) description of monitoring procedures; and

(g) proposals for communicating information to the relevant planning authority, the local highway authority and the Highways Agency.

(4) Notices must be erected and maintained throughout the period of construction at every construction site exit, in accordance with the TMP, indicating to drivers the route agreed by the relevant planning authority for traffic entering and leaving the construction site.

Control of noise during construction and commissioning

15

(1) No part of the authorised development may commence until a written scheme for noise management during construction in accordance with the provisions of paragraph 8.8.4 of the environmental statement has been submitted to and approved by the relevant planning authority.

(2) The scheme must set out the particulars of—

(a) the works, and the methods by which they are to be carried out;

(b) the noise attenuation measures to be taken to minimise noise resulting from the works, including any noise limits;

(c) locations for noise measuring equipment for the monitoring requirements imposed by sub-paragraph (4) and the times such monitoring will be undertaken;

(d) a scheme for monitoring the noise from the construction of the authorised development during the times identified to monitor compliance with the noise limits referred to in paragraph (b) and the effectiveness of the associated noise attenuation measures;

(e) how the undertaker will ensure that all works will be completed in accordance with the guidelines provided in BS 5228 parts 1 and 2 (2009) (Code of practice for noise and vibration control on construction and open sites); and

(f) a scheme for mitigating the emission of noise during the commissioning phase of the authorised development including measures for mitigating the noise arising from steam purging during commissioning reflecting the provisions of paragraph 8.8.4 of the environmental statement.

(3) Any equipment requiring overnight operations such as pumps, generators and compressors will be adequately silenced to ensure that noise from such equipment will not exceed the night time limits in annex E of BS 5228 part 1 (2009) (45 LAeq).

(4) During the construction and commissioning of the authorised development during the months of August to March (inclusive) in any year the noise levels measured at Cambois coal staithes (national grid reference point NZ 30679 82815) and on Cambois Beach (national grid reference point NZ 31204 82857) will not exceed 55 dB(A) LA Max unless previously agreed with the relevant planning authority following consultation with Natural England.

(5) The approved noise management scheme must be implemented before and maintained during the construction of the authorised development.

External lighting during construction

16

No part of the authorised development may commence until written details of any external lighting to be installed at any of the construction sites, including measures to prevent light spillage, have been submitted to and approved by the relevant planning authority, and any approved means of lighting must subsequently be installed and maintained as approved for the duration of the construction period.

Unexploded ordnance (UXO) survey

17

(1) No part of the authorised development may commence until a survey to ascertain UXO risk on the construction site is carried out and submitted to the relevant planning authority and the MMO together with (if required) any proposals of the undertaker to mitigate the risks and to adhere to the recommendations included in the UXO report.

(2) The authorised development must thereafter be carried out fully in accordance with such recommendations of the UXO report as are agreed by the undertaker and the relevant planning authority.

Travel plan – construction

18

(1) No part of the authorised development may commence until, after consultation with the local highway authority and the Highways Agency, a travel plan for the construction workforce of the authorised development has been submitted to and approved by the relevant planning authority.

(2) The plan approved under sub-paragraph (1) shall include details of—

(a) expected means of travel to and from the construction site and any parking to be provided on site;

(b) numbers of construction staff, working hours and modal split;

(d) details of the number of car parking spaces to be provided on site and if appropriate a car park management plan;

(e) commitment to measures that will encourage sustainable travel to and from the construction site for construction staff including the use of minibuses to carry workers to and from the construction site;

(f) responsibility and timescales for implementing proposed measures;

(g) targets for vehicle trips and modal splits;

(h) formal monitoring regime for those targets;

(i) provision for mess/canteen facilities for staff; and

(j) consideration of offsite parking provision and a strategy for both car sharing and use of minibuses for the transportation of construction workers.

(3) The plan approved under sub-paragraph (1) must be implemented and observed during the construction of the authorised development.

Flooding – mitigation

19

(1) No part of the authorised development may commence until there has been submitted to and approved in writing by and deposited with the relevant planning authority, in consultation with the Environment Agency, a scheme for mitigation of flood risk during the construction and operation of the authorised development prepared in accordance with the principles set out in section 14.7 of the environmental statement and the flood risk assessment annexed to the environmental statement. In particular it must include details of construction compounds and storage of materials to be located in areas of low flood risk and for access and egress from the construction or operational site of the authorised development to land above flood levels in the event of inundation.

(2) The approved scheme must thereafter be fully implemented and adhered to throughout the period of the construction and operation of the authorised development.

Flooding – warning and evacuation plan

20

(1) No part of the authorised development may commence until there has been submitted to and approved in writing and deposited with the relevant planning authority, following consultation with the Environment Agency, a flood warning and evacuation plan (FEP). The FEP shall address and include at least the following—

(a) command and control procedures (to include a procedure for dealing with flooding incidents);

(b) training and exercising of personnel on site (including records of such activities) must be maintained;

(c) flood warning procedures (in terms of receipt and transmission of information and to whom notification must be provided for the implementation of the FEP); and

(d) site evacuation procedures and routes; provision of the identified safe refuges and their continuing maintenance.

(2) Full details of the emergency flood access route from the authorised development to North Blyth Road shall be included in the FEP. The FEP must be reviewed at intervals not exceeding three years from first approval. The FEP must thereafter form part of the health and safety at work procedures applicable to the authorised development and must be adhered to throughout the operational phase of the authorised development.

Fire prevention

21

(1) No part of the authorised development may commence until, following consultation with the Northumberland Fire and Rescue Service and the Blyth Harbour Commissioners, there has been submitted to and approved in writing by the relevant planning authority a fire prevention method statement, incorporating a fire risk assessment, which must accord with the details specified in paragraphs 4.4.29 to 4.4.37 of the environmental statement and must also contain details of—

(a) automatic fire detection and suppression measures and access of fire appliances to all major buildings, structures and storage areas, including measures proposed to contain and treat water used to suppress any fire;

(b) physical separation of fuel stores, subdivision of fuel stores and proposals for segregation of fuel types within each fuel store;

(c) additional fire prevention measures to be incorporated into the design of the authorised development to safeguard existing buildings or structures shown on the heat radiation contour plan as being situated within the heat radiation contour;

(d) safe working practices to be employed in the management of fuel stores and the removal of wood dust discharged from ash handling and storage facilities;

(e) requirements for operational staff to log all fire incidents including false alarms; and

(f) the content, and timing for dissemination to local residents, of a summary of the safety procedures to be followed in the event of fire or similar emergency at the authorised development.

(2) The approved fire prevention method statement must be deposited with the relevant planning authority, the Northumberland Fire and Rescue Service and the Blyth Harbour Commissioners.

(3) The authorised development must be carried out fully in accordance with the approved fire prevention method statement and all the relevant fire suppression and detection measures and fire appliances must be maintained in working order at all times when the authorised development is operational.

Otter mitigation strategy

22

(1) No part of the authorised development may commence until full details of a scheme for minimising the risk of entrapment of otters has been submitted to and approved by the relevant planning authority. The scheme must include consideration of suitable boarding or covers to be used to prevent otters from accessing any deep and steep sided excavations near to the River Blyth, such as the water intake structure and cooling water intake pipe trenches. Where so required by the approved scheme, suitable means of escape will be provided, to enable otters to climb out of excavated areas and, where specified, excavations will be covered or means of escape provided at the end of each working day.

(2) The authorised development must be carried out fully in accordance with the approved details.

Asbestos

23

(1) No part of the authorised development may commence until a scheme is submitted to and approved in writing by the relevant planning authority for the mitigation of any risk of release of asbestos from the areas of asbestos encapsulation. All soils contaminated by asbestos and removed from the construction site will be removed under controlled conditions by a specialist contractor and disposed of off-site at a suitably licensed landfill.

(2) No works within areas that may affect the area of asbestos encapsulation may commence until the relevant planning authority is satisfied that all risk assessments and detailed method statements have been agreed and approved by all relevant regulatory authorities.

Storage of liquids on site

24

(1) No part of the authorised development may commence until the relevant planning authority has received and approved in writing a method statement for the storage of process chemicals, fuels and lubricants on site which includes the intended location of such storage and a pollution incident response plan. The details must be prepared in accordance with paragraphs 15.6.19 to 15.6.22 and 15.6.44 to 15.6.47 of the environmental statement.

(2) The authorised development must thereafter be carried out fully in accordance with the approved details, and the methods of storage of such process chemicals, fuels and lubricants must continue fully in accordance with the details approved by the relevant planning authority. Full records of the maintenance of the storage measures and the use of potentially contaminating substances must be made available to the relevant planning authority on request.

(3) No potentially contaminating liquid may be stored except in an area that has an impermeable bund of at least 110% of the storage capacity of the relevant container.

(4) The pollution incident response plan approved pursuant to sub-paragraph (1) must be reviewed by the undertaker at the expiry of each five year period from the commencement of the authorised development and the results of such review must be submitted to the relevant planning authority for its approval.

Database of tall structures

25

The authorised development must not be commenced until the undertaker has provided to the relevant planning authority confirmation that details of the anticipated height of the chimney stack and boiler house comprising part of Work No. 1 have been provided to the Defence Geographic Agency for inclusion in its database of tall structures.

Aviation safety

26

That part of the authorised development comprising the main stack may not commence until there has been submitted to and approved in writing by the relevant planning authority following consultation with the Civil Aviation Authority a scheme for the provision of safety lighting on the stack forming part of the authorised development. The authorised development must be carried out in accordance with the approved scheme and the lighting required by such scheme must at all times be maintained to the reasonable satisfaction of the relevant planning authority.

European protected species

27

(1) Immediately prior to the commencement of the authorised development the undertaker shall carry out survey work to establish whether European protected species are present on any of the land affected, or likely to be affected, by the authorised development.

(2) Where a European protected species is shown to be present, no part of the authorised development may commence until, after consultation with the relevant planning authority, Natural England and the Secretary of State for the Environment, Food and Rural Affairs, a scheme of protection and mitigation measures in respect of such species has been submitted to and approved by the relevant planning authority; and the authorised development must be carried out in accordance with the approved scheme.

Construction hours

28

Construction work must not take place other than between 0700 and 1800 hours on weekdays and 0700 and 1300 hours on Saturdays, excluding public holidays, unless alternative times are proposed to and previously agreed by the relevant planning authority.

Piling and vibration

29

(1) No piling works may be commenced until a piling method statement (which may form part of the CEMP) has been submitted to and approved by the relevant planning authority following consultation with Natural England, the Environment Agency and the MMO regarding the mitigation of the impact of piling and other construction works that are significant in terms of noise generation likely to impact on ornithology and aquatic and marine animals. The piling method statement must—

(a) conform with the provisions set out in paragraphs 4.5.80 and 4.5.81 of the environmental statement and the letter from the undertaker to Natural England dated 26 June 2012;

(b) fully reflect paragraphs 11.6.5 to 11.6.19 of the environmental statement and include provision ensuring that noise levels will be monitored during the construction phase to ensure levels are as predicted;

(c) include details of mitigation to be employed to ensure that the noise from piling activities does not exceed 55 dB(A) LA Max at the locations of the agreed measurement points during the months of August to March inclusive (unless otherwise previously agreed with the relevant planning authority in consultation with Natural England, the Environment Agency and the MMO);

(d) stipulate that any percussive piling may only be undertaken if the volume emissions of such works are to be increased on a gradual basis;

(e) demonstrate that piling activities will not have a resultant unacceptable impact on groundwater;

(f) include provision that no piling shall be undertaken in connection with Work Nos. 1(u) to (w) (inclusive) during the months of October to March inclusive; and

(g) include a programme for reporting noise measurements and proposals for reporting on the effectiveness of the mitigation contained within the method statement including, in the event that predicted noise levels during the construction phase are exceeded, a process for any necessary remedial action being approved by the relevant planning authority and thereafter implemented within a stated timescale following such approval.

(2) Notwithstanding any measures approved pursuant to sub-paragraph (1), no pile driving shall take between the hours of 17.30 and 07.00 on any day.

(3) The authorised development must be carried out in accordance with the provisions of the approved piling method statement and this Order.

(4) No piling works may commence as part of the construction of the authorised development until steps have been taken to ensure that vibration monitoring will be carried out (including for test piling) in accordance with details which have been submitted to and approved by the relevant planning authority. Thereafter details of monitoring must be submitted to and approved by the relevant planning authority in writing prior to commencement of any piling works for the authorised development and a record of vibration must be maintained at all times during the construction works and made available to the relevant planning authority on request.

Control of artificial light emissions

30

(1) The authorised development may not be brought into first commercial use until a written scheme for the management and mitigation of artificial light emissions (which must be in accordance with the principles of paragraph 9.10.53 and Appendix 4.6 of the environmental statement) has been submitted to and approved by the relevant planning authority.

(2) The approved scheme for the management and mitigation of artificial light emissions must be implemented and maintained during the construction and operation of the authorised development.

(3) No internal lighting of Work No. 1(a) shall be by way of uplighting.

Control of dust emissions

31

(1) The authorised development may not be brought in to first commercial use until a written scheme for the management and mitigation of dust emissions including—

(a) the use of hoppers with integrated dust suppression for unloading fuel stock from vessels;

(b) the storage, management and handling of fuel and fly ash;

(d) the details, including locations, of dust level monitors

has been submitted to and approved by the relevant planning authority.

(2) The approved scheme for the management and mitigation of dust emissions must be implemented and maintained during the operation and decommissioning of the authorised development.

Waste management on site

32

(1) The authorised development may not be brought in to first commercial use until the relevant planning authority has received and approved in writing a site waste management plan for the operational phases of the authorised development incorporating the principles in paragraphs 4.4.23 to 4.4.26 of the environmental statement. The site waste management plan must address and include at least the following—

(a) the storage of waste materials on site;

(b) removal of waste materials from the site for recovery/disposal at appropriately licensed sites; and

(2) The authorised development must thereafter be operated fully in accordance with the approved details.

Travel plan and traffic management plan – operational period

33

(1) No part of the authorised development may be brought into first commercial use until, after consultation with the local highway authority and Highways Agency, a framework travel plan, which must include details of the expected means of travel to and from the authorised development and any parking to be provided, has been submitted to and approved by the relevant planning authority.

(2) The details referred to in sub-paragraph (1) must include—

(a) number of operational staff, working hours and modal split for journeys to work;

(b) work start and finish times for operational staff;

(c) details of the number of car parking spaces to be provided onsite and if appropriate the provision of a car parking management plan;

(d) commitment to measures that will encourage sustainable travel to and from the site for operational staff;

(e) responsibility and timescales for implementing proposed measures;

(f) targets for vehicle trips and modal splits; and

(g) a formal monitoring regime for those targets, including— a requirement for an annual review of the performance of the travel plan; submission (and timetable for submission) of the review findings to the relevant planning authority; a process to agree with the relevant planning authority any necessary revisions to the travel plan or its targets following the annual review; and a timetable for any implementation of any agreed revisions.

(3) The framework travel plan must also include details of—

(a) cycle parking provision on site;

(b) the provision of and location of an electric car charging point; and

All measures proposed must be provided from first commercial use of the authorised development and thereafter maintained during the operation of the authorised development, subject to any alterations or variations thereto previously agreed in writing by the relevant planning authority, until replaced by the full travel plan.

(4) The undertaker must submit to the relevant planning authority for approval in consultation with the local highway authority and Highways Agency a full travel plan based on the framework travel plan within three months of the authorised development being brought into first commercial use. Following its approval, the full travel plan must continue to be observed for as long as the authorised development is operational subject to any alterations or variations agreed in writing by the relevant planning authority in consultation with the local highway authority and the Highways Agency.

(5) No part of the authorised development shall be brought into first commercial use until the relevant planning authority, following consultation with the local highway authority and the Highways Agency has approved a traffic management plan (which may form part of the framework travel plan) for both staff and delivery traffic movements for the operation of the authorised development. The traffic management plan must contain details of the route to be followed by heavy commercial vehicles employed for the purposes of delivering fuel stock and, in the event that the agreed route on the local road network in the vicinity of the site is not available, details of an alternative temporary route together with the conditions under which such temporary route must be used, including maximum speeds of heavy commercial vehicles and any restrictions on use during certain times of the day. Following its approval, the traffic management plan must continue to be observed for as long as the authorised development is operational subject to any alterations or variations thereto previously agreed in writing by the relevant planning authority in consultation with the local highway authority and the Highways Agency.

Combined heat and power

34

(1) The authorised development may not be brought into first commercial use until the relevant planning authority, in consultation with the Environment Agency, has certified that it is satisfied that the undertaker has included in Work No. 1 appropriate connections for the later provision of heat pass-outs for off-site users of process or space heating and its later connection to such systems.

(2) The undertaker shall thereafter maintain such provision for the lifetime of the authorised development.

(3) The undertaker must on the date that is 12 months after the authorised development is first brought into commercial use submit to the relevant planning authority for its approval, in consultation with the Environment Agency, a report it has compiled (CHP Review) in consultation with the relevant planning authority and the Environment Agency, updating the CHP/ District heating feasibility report submitted with the application for development consent regarding the authorised development. The CHP Review must consider the opportunities that reasonably exist for the export of heat from the authorised development at the time of the submission of the CHP Review and must include a list of actions (if any) the undertaker shall reasonably undertake (without material additional cost to the undertaker) to increase the potential for the export of heat from the authorised development. The undertaker must thereafter undertake such actions as are agreed within the timescales specified in the CHP Review.

(4) The CHP Review must be revised and re-submitted by the undertaker to the relevant planning authority, in consultation with the Environment Agency, in accordance with the process and subject to the requirements stated in sub-paragraph (3) on the date that is five years after the date of its previous submission to the relevant planning authority throughout the lifetime of the authorised development and any actions specified in the subsequent CHP Review must be carried out by the undertaker in accordance with the timescales specified in the re-submitted CHP Review.

Site safety and signage

35

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The North Blyth Biomass Power Station Order 2013

Citation and commencement

1

Interpretation

2

Development consent etc granted by the Order

3

Procedure in relation to approvals etc under the Requirements

4

Maintenance of authorised development

5

Operation of generating station

6

Benefit of Order

7

Defence to proceedings in respect of statutory nuisance

8

Street works

9

Agreements with street authorities

10

Discharge of water

11

Authority to survey and investigate the land

12

Compulsory acquisition of land

13

Compulsory acquisition of land – incorporation of the minerals code

14

Time limit for exercise of authority to acquire land compulsorily

15

Compulsory acquisition of rights

16

Private rights of way

17

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

18

Acquisition of subsoil only

19

Acquisition of part of certain properties

20

Rights under or over streets

21

Statutory undertakers

22

Recovery of costs of new connections

23

Railway and navigation undertakings

24

Application of landlord and tenant law

25

Operational land for purposes of the 1990 Act

26

Deemed licence for purposes of the 2009 Act

27

Certification of plans etc

28

Arbitration

29

Crown rights

30

Protective provisions

31

SCHEDULE 1 — Authorised development

1

2

SCHEDULE 2 — Requirements

Interpretation

1

Time limits

2

Detailed design

3

Highway accesses

4

Fencing and other means of enclosure

5

Surface and foul water drainage

6

Surface water drainage – contamination