The Hinkley Point C (Nuclear Generating Station) Order 2013

Made: 18th March 2013

Coming into force: 9th April 2013

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

PART 1 — General provisions

Preliminary

Citation and commencement

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This Order may be cited as the Hinkley Point C (Nuclear Generating Station) Order 2013 and shall come into force on 9th April 2013.

Interpretation

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• (1) In this Order, unless the context requires otherwise—

• “the 1961 Act” means the Land Compensation Act 1961[^f00004];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00005];

• “the 1980 Act” means the Highways Act 1980[^f00006];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00007];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00008];

• “the 1995 Order” means the Town and Country Planning (General Permitted Development) Order 1995[^f00009];

• “the 2008 Act” means the Planning Act 2008;

• “AIL” means an abnormal indivisible load as defined in paragraph 2 of Schedule 1 (abnormal indivisible load vehicles) to the Road Vehicles (Authorisation of Special Types) (General) Order 2003[^f00010];

• “approved plans” means the plans listed in Part 3 of Schedule 1 (approved plans) and such revised or supplemental plans as may be approved pursuant to the requirements;

• “authorised development” means the development described in Part 1 of Schedule 1 (authorised development) and any other development authorised by this Order, but does not include the temporary jetty works;

• “authorised project” means the authorised development and the temporary jetty works authorised by this Order;

• “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” has the meaning given in section 329 of the 1980 Act (interpretation);

• “discharging authority” means the body responsible for giving any agreement or approval required by a requirement;

• “footpath implementation plan” means a written plan agreed between the undertaker and the highway authority for creation or improvement of a footpath to a specified standard;

• “HPC development site” means the land within the Order limits shown on sheet nos. 2, 3 and 4;

• “land” includes land covered by water, any interest in land or right in, to or over land;

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

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

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00011] (interpretation);

• “permanent development site” means the land within the permanent development site boundary as shown on plan HINK-A1-SL-00-GA-010 (Site Layout Plan (Operational));

• “permanent limits” means the limits of land for the purpose of article 24 (compulsory acquisition of land) as shown shaded pink on the land plans;

• “relevant planning authority” means, in any given provision of this Order, the district planning authority for any area of land that the provision relates to, i.e. West Somerset District Council and/or Sedgemoor District Council, as the case may be;

• “requirements” has the meaning given in article 3 (development consent for authorised development etc.);

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

• “site preparation permission” means the planning permission in respect of land to the West of Hinkley Point, Stogursey, Bridgwater TA5 1TP granted by West Somerset District Council on 27th January 2012, with reference number 3/32/10/037;

• “statutory undertaker” means any person falling within section 127(8), 128(5) or 129(2) of the 2008 Act (which make provision about orders affecting statutory undertakers’ land);

• “street” means a street within the meaning of section 48 of the 1991 Act (streets, street works and undertakers), 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 meaning given in section 49 of the 1991 Act (the street authority and other relevant authorities);

• “temporary associated development works” means Work Nos. 3, 4A, 5A, 7A, 8A(2)(a) to (h), 9A, 10 and 11;

• “temporary jetty demolition works” means Work No. TJ0;

• “temporary jetty works” means Work Nos. TJ1, TJ2 and TJ3 described in Part 2 of Schedule 1 (temporary jetty works) and any other works authorised by Part 2 of this Order (provisions relating to temporary jetty works) or, as the case may require, any part of those works, but excluding the temporary jetty demolition works;

• “tree preservation order” has the meaning given in section 198 of the 1990 Act (power to make tree preservation orders);

• “undertaker” means NNB Generation Company Limited (Company number 06937084);

• “undertaking” means the generation of electricity by the undertaker as authorised from time to time;

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

• “the works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order.

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

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

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

• (5) A reference in this Order to a work designated by a number, or by a combination of letters and numbers (for example, “Work No. 9A”), is a reference to the work so designated in Part 1 or 2 of Schedule 1.

• (6) Unless the context requires otherwise, a reference in this Order to a numbered sheet (for example, “sheet no. 3”) is a reference to the sheet so numbered in the works plans.

• (7) A reference in this Order to a document or plan required to be submitted for certification under article 43(1)(e) (certification and construction of plans and documents) is a reference to the version of that document or plan that has been certified under article 43.

• (8) A reference in the Schedules to a “relevant site” is a reference to the site of that name shown in the right of way plans and land plans.

• (9) In this Order, 10-digit references prefaced by the letters “ST” refer to the corresponding Ordnance Survey National Grid reference points.

Principal powers

Development consent for authorised development etc.

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• (1) Subject to the provisions of Schedule 2 (requirements) (“the requirements”) and the other provisions of this Order, the undertaker is granted development consent for the authorised development, to be carried out in the lines or situations shown on the works plans and in accordance with the approved plans.

• (2) In constructing or maintaining any of the authorised development, the undertaker may deviate laterally from the lines or situations shown on the works plans within the limits of deviation relating to that work shown on those plans.

• (3) In constructing or maintaining Work No. 2A, Work No. 2C and Work No. 2E, the undertaker may deviate vertically to any extent provided that no part of these works is less than 10 metres below the seabed or more than 50 metres below the seabed.

• (4) In constructing or maintaining Work No. 2G the undertaker may deviate vertically to any extent provided that no part of these works is more than 25 metres below the seabed.

• (5) Paragraphs (1), (2), (3) and (4) only authorise the carrying out of works within the Order limits.

Effect of the Order on the site preparation permission

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• (1) If the undertaker serves a notice on West Somerset District Council under this article—

• (a) the undertaker shall cease to carry out development under the site preparation permission; and

• (b) the conditions of the site preparation permission shall cease to have effect, except for Conditions G4, R1, R2, R3, R4, R5 and R6.

• (2) The undertaker may not carry out Work No. 1A under this Order until notice has been served under paragraph (1).

• (3) Notwithstanding paragraph (2), the undertaker may exercise any other powers under this Order in respect of any part of the authorised project prior to or following service of notice under paragraph (1).

• (4) Without prejudice to the generality of paragraph (3), the undertaker may discharge any requirement at any time prior to or following the service of notice under paragraph (1).

• (5) Where details, plans or any other matters have been approved or agreed by West Somerset District Council pursuant to a condition of the site preparation permission in column (1) of Schedule 3 prior to the date on which the undertaker serves notice under paragraph (1) they shall be deemed to have been approved for the purpose of the corresponding requirement in column (2) of Schedule 3.

Maintenance of authorised project

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

Authorisation of use

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Subject to the provisions of this Order and to the requirements the undertaker may operate and use the authorised project.

Benefit of Order

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Subject to article 8 (consent to transfer benefit of Order), the provisions of this Order shall have effect solely for the benefit of the undertaker.

Consent to transfer benefit of Order

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• (1) 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.

• (2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3), shall include references to the transferee or the lessee.

• (3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) shall be subject to the same restrictions, liabilities and obligations (including development consent obligations within the meaning of section 106(14) of the 1990 Act) as would apply if those benefits or rights were exercised by the undertaker.

Application of the 1991 Act

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• (1) Where the undertaker carries out works under this Order in relation to a highway which consists of or includes a carriageway and the works carried out are—

• (a) of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) of the 1991 Act (which defines what highway authority works are major highway works); or

• (b) works which, had they been executed by the highway authority, could have been carried out in exercise of the powers conferred by section 64 of the 1980 Act (dual carriageway and roundabouts),

the works shall be treated for the purposes of Part 3 of the 1991 Act (street works) as if they were major highway works carried out by the highway authority.

• (2) In the application of Part 3 of the 1991 Act to works within paragraph (1) by virtue of paragraph (1), the references in that Part to the highway authority concerned shall be construed as references to the undertaker.

Application of the 1990 Act

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• (1) This article applies to the resumption of the use of land used for the temporary associated development works for the use for which it was normally used before this Order was made.

• (2) Where this article applies, section 57(2) of the 1990 Act (planning permission required for development) shall apply as if the development consent granted under this Order were planning permission granted for a limited period.

Application of the 2010 Regulations

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• (1) The Community Infrastructure Levy Regulations 2010[^f00012] shall apply to the authorised development as if regulation 5(2) of those Regulations (meaning of “planning permission”) referred to development consent which is deemed to be granted for a limited period by an order made under section 114(1)(a) of the 2008 Act (grant or refusal of development consent) rather than to planning permission which is granted for a limited period.

• (2) Development consent is deemed to be granted for a limited period for the temporary associated development works, Work No. 1A(b) and any other temporary buildings or works authorised by this Order.

Defence to proceedings in respect of statutory nuisance

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• (1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990[^f00013] (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 project and that the nuisance is attributable to the carrying out of the authorised project in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974[^f00014]; or

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

• (b) the defendant shows that the nuisance is a consequence of the use of the authorised project and that it cannot reasonably be avoided.

• (2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) and section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded) of the Control of Pollution Act 1974 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 project.

Streets

Street works

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• (1) The undertaker may, for the purposes of the authorised project, enter on so much of any of the streets specified in columns (1) and (2) of Schedule 4 (streets subject to street works) as is within the Order limits for the relevant site specified in column (3) of Schedule 4 and may—

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

• (b) tunnel or bore under the street;

• (c) place apparatus in the street;

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

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

• (2) In this article “apparatus” has the meaning given in section 105(1) of the 1991 Act.

Stopping up of footpaths on HPC development site

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• (1) Subject to paragraphs (2) and (3), the undertaker may, in connection with the carrying out of the authorised project—

• (a) stop up each of the footpaths specified in columns (1) and (2) of Part 1 of Schedule 5 (footpaths to be permanently stopped up on HPC development site) to the extent specified, by reference to the letters and numbers shown on the rights of way plans, in column (3) of that Part of that Schedule; and

• (b) temporarily stop up each of the footpaths specified in columns (1) and (2) of Part 2 of Schedule 5 (footpaths to be temporarily stopped up on HPC development site) to the extent specified, by reference to the letters and numbers shown on the rights of way plans, in column (3) of that Part of that Schedule.

• (2) No footpath specified in columns (1) and (2) of Part 1 or columns (1) and (2) of Part 2 of Schedule 5 shall be wholly or partly stopped up under this article unless the diversion route specified on the rights of way plans between points DR1/1 and DR1/2, and between points DR1/4, DR1/5, DR1/6, DR1/7, DR1/8, DR1/9 and DR1/10, DR1/11 and DR1/12, and between points DR1/5 and DR1/13 is first provided by the undertaker, to the reasonable satisfaction of the highway authority.

• (3) The diversion route provided under paragraph (2), or such alternative diversion route connecting the points listed in paragraph (2) as may from time to time be agreed by the highway authority, shall be subsequently maintained by the undertaker until the completion and opening of the footpaths on the HPC development site specified in columns (1), (2) and (3) of Schedule 7 (status of footpaths created or improved) in accordance with any relevant footpath implementation plan.

Permanent stopping up of streets

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• (1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised project, stop up each of the streets specified in columns (1) and (2) of Parts 1 and 2 of Schedule 6 (streets to be permanently stopped up) to the extent specified, by reference to the letters and numbers shown on the rights of way plans, in column (3) of those Parts of that Schedule.