The North Killingholme (Generating Station) Order 2014

Made: 11th September 2014

Coming into force: 2nd October 2014

The Secretary of State has decided to grant development consent and, under sections 114, 115, 120 and 149A of the 2008 Act, to make the following Order—

Citation and commencement

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This Order may be cited as the North Killingholme (Generating Station) Order 2014 and shall come into force on 2nd October 2014.

Interpretation

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• (1) In this Order—

• “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 2008 Act” means the Planning Act 2008;

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

• “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 same meaning as in the 1980 Act;

• “commence”, unless otherwise provided, means beginning to carry out any material operation (as defined in Section 56(4) of the 1990 Act) forming part of the authorised development other than operations consisting of site clearance, demolition work, archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and “commencement” shall be construed accordingly;

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

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

• “footpath diversion zone” means the area or areas of land marked as such on the land plans;

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

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

• “limits of deviation” means the limits of deviation for the scheduled works shown on the works plans;

• “maintain” includes maintain, inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct any part (but not the whole), decommission, replacement of any part (but not the whole) and improve, but not so as to vary from the description of the authorised development in Schedule 1 and only to the extent assessed in the environmental statement, and “maintenance” shall be construed accordingly;

• “Order land” means the land shown on the land plans within the Order limits which is land over which it is proposed to exercise powers of compulsory acquisition or any right to use land, and land subject to powers to extinguish, suspend or interfere with easements, servitudes or other private rights described in the book of reference;

• “Order limits” means the limits shown on the land and works plans within which the authorised development may be carried out and land acquired or used;

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00009];

• “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority or a sewerage undertaker;

• “relevant planning authority” means North Lincolnshire Council;

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

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

• “statutory undertaker” means any person falling within section 127(8) 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 3 of the 1991 Act;

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

• “undertaker” means C.GEN Killingholme Limited, which is the named undertaker, or any other person who has the benefit of this Order in accordance with article 6;

• “watercourse”, unless otherwise provided, 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 including the works plan dated 31st July 2020 and certified by the Secretary of State in accordance with article 34(1A).

• (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 plots of land are to plots identified on the land plans and in the book of reference.

Development consent etc. granted by the Order

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• (1) Subject to the provisions of this Order, the undertaker is granted development consent for the authorised development to be carried out within the Order limits, and Schedule 1 (authorised development) has effect for that purpose.

• (2) For the purposes of the authorised development, development consent granted by this Order shall include and permit the alteration, removal, clearance, refurbishment, reconstruction, decommissioning and demolition of any buildings or other structures within the Order limits to the extent that they relate to, are required by, or are incidental to the carrying out of the authorised development.

• (3) The development authorised by this Order shall be constructed in the lines or situations shown on the land plans and works plans.

• (4) The scheduled works shall be constructed within the limits of deviation.

• (5) In constructing the scheduled works, the undertaker may—

• (a) deviate laterally from the lines or situations shown on the works plans within the limits of deviation; and

• (b) deviate vertically to any extent downwards and (except in the case of maintaining) no more than 5 metres upwards from the heights specified in Part 2 of Schedule 1 for each building comprised in the authorised development and shown on the works plans as may be necessary, convenient or expedient.

• (6) The main stack comprised in Work No. 1 and shown on the works plans shall not be constructed so as to be lower than 85 metres above ordnance datum and the flare stack comprised in Work No. 2b shall not be constructed so as to be lower than 140 metres above ordnance datum.

• (7) The pipe conveyor comprised in Work No. 6b shall not be constructed above 21 metres above ordnance datum except in the locations shown on drawing 2.28 Conveyor Section in the works plans.

Maintenance, decommissioning and demolition of authorised development

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• (1) The undertaker may at any time maintain the authorised development, except to the extent that the other provisions of this Order, the requirements or an agreement made under this Order provide otherwise.

• (2) Subject to paragraph (3) and the requirements, the power to maintain the authorised development includes the power to carry out and maintain any of the following as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction or operation of the authorised development namely—

• (a) works to alter the position of apparatus below ground level including main sewers drains and cables, including below ground structures associated with that apparatus within the Order limits; and

• (b) works of decommissioning and demolition.

• (3) This article only authorises the carrying out of maintenance, demolition and decommissioning of works within the Order limits.

Operation of generating station

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• (1) The undertaker is authorised to operate the generating station comprised in the authorised development.

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

• (3) Subject to the provisions of requirement 38 the generating station may be fired by natural gas or by solid fuels treated in the gasification facility comprised in Work No. 2a.

Benefit of the Order

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• (1) Subject to paragraph (2) the provisions of articles 9 to 11, 14 to 27 and 31 shall have effect only for the named undertaker and a person who is a transferee or lessee as defined in this article.

• (2) The named 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.

Guarantees in respect of payment of compensation

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The authorised development must not be commenced and the undertaker must not begin to exercise the powers provided in articles 9 to 28, 31 and 32 of this Order unless either a guarantee in respect of the liabilities of the undertaker to pay compensation under this Order or an alternative form of security for that purpose is in place which has been approved by the relevant planning authority.

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[^f00010] (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraphs (c), (d), (e), (fb), (g), (ga) and (h) of section 79(1) of that Act, 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[^f00011]; 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 in accordance with a scheme of monitoring and attenuation of noise agreed with the relevant planning authority as described in requirement 20(1); 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

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

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

• (b) tunnel or bore under the street;

• (c) place apparatus in the street;

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

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

• (2) 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).

• (4) The provisions of this article shall not apply to the streets in parcel numbers 09/09, 09/10, 09/11, 10/14, 10/15, and 10/16 as shown on the land and works plans to the extent that any works interfere with the surface of the street in question or impede passage along the street but nothing in this article shall prevent the carrying out of works in the subsoil of a street to which this paragraph applies.

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

Temporary stopping up of streets

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• (1) Subject to sub-paragraph (5) the undertaker, during and for the purposes of carrying out the authorised development, may temporarily stop up, alter or divert any street and may for any reasonable time—

• (a) divert the traffic from the street; and

• (b) subject to paragraph (2), prevent all persons from passing along the street.

• (2) The undertaker shall provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration or diversion of a street under this article if there would otherwise be no such access.

• (3) Without prejudice to the generality of paragraph (1), the undertaker may temporarily stop up, alter or divert the street specified in columns (1) and (2) of Schedule 3 (streets to be temporarily stopped up) within the extent of the footpath diversion zone for that street shown on the land plans.

• (4) The provisions of this article shall apply to any street that is created in or diverted through any parcels shown on the land plans and any such street may be temporarily stopped up, altered or diverted within the footpath diversion zone for such a street shown on the land plans.

• (5) The undertaker shall not temporarily stop up, alter or divert—

• (a) the street specified as mentioned in paragraphs (3) and (4) without first consulting the local highway authority; and

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