The Clocaenog Forest Wind Farm Order 2014

Made: 11th September 2014

Coming into force: 2nd October 2014

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

PART 1 — Preliminary

Citation and commencement

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This Order may be cited as the Clocaenog Forest Wind Farm Order 2014 and 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 1984 Act” means the Road Traffic Regulation Act 1984[^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;

• “access plan” means plan reference CF/PLAN04/ACCESS/01-07 certified as the access and public rights of way plan by the Secretary of State for the purposes of this Order;

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

• “the authorised development” means the development described in Part 1 of Schedule 1 (authorised development) and any other development authorised by this Order;

• “apparatus” has the same meaning as in Part 3 of the 1991 Act;

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

• “the book of reference” means the book of reference v2 submitted in November 2013 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;

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

• “highway” has the same meaning as in the 1980 Act;

• “the land plan” means the plan reference CF/PLAN01/LAND/01-07 certified as the land plan by the Secretary of State for the purposes of this Order;

• “the limits of deviation” means the limits of deviation referred to in article 6 (power to deviate);

• “maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace, but not so as to vary from the description of the authorised project in Schedule 1 and only to the extent assessed in the environmental statement, and “maintenance” is to be construed accordingly;

• “Order land” means the land shown on the land plan as—land required for or affected by the authorised development,land subject to the interference with private rights, andland subject to the creation of new rights;

• “Order limits” means the order limits shown on the works plan 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[^f00010];

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

• “public sewer or drain” means a sewer or drain which belongs to the Natural Resources Wales, a harbour authority within the meaning of section 57 of the Harbours Act 1964[^f00011] (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation;

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

• “relevant planning authority” means the County Borough of Conwy in relation to land situated in the County Borough of Conwy, and the County of Denbighshire in relation to land situated in the County of Denbighshire;

• “relocation works” means work executed, or apparatus provided, under paragraph (2); and

• “Requirement” means a requirement set out in Part 3 of Schedule 1 (Requirements);

• “statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003[^f00012].

• “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 RWE Innogy UK Limited (company number 2550622) whose registered office is at Auckland House, Lydiard Fields, Great Western Way, Swindon, Wiltshire SN5 8ZT;

• “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 revised works plan submitted with the application dated 23 August 2017 for a non-material change to this Order under paragraph 2 of Schedule 6 to the 2008 Act and certified by the Welsh Ministers in accordance with article 36(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 areas distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised project are taken to be measured along that work.

• (4) References in this Order to a numbered work are references to a work number in Part 1 of Schedule 1 (authorised development), and shown on the works plan.

PART 2 — Principal powers

Development consent etc granted by the Order

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• (1) Subject to the provisions of this Order, and to the Requirements in Part 3 of Schedule 1, the undertaker is granted—

• (a) development consent for the authorised development in Part 1 of Schedule 1, and

• (b) consent for the ancillary works in Part 2 of Schedule 1,

to be carried out within the Order limits.

• (2) Subject to article 6 (power to deviate), the authorised development may only be constructed in the lines or situations shown on the works plan.

• (3) Notwithstanding anything in this Order or shown on the works plan but without prejudice to the provisions of article 6 (power to deviate) the undertaker may construct—

• (a) Works No. 2A, 5A and 14A or Works No. 2B, 5B and 14B but may not construct both Works No. 2A, 5A and 14A and Works No. 2B, 5B and 14B under the powers conferred by this Order, and

• (b) Work No. 4A or 4B but may not construct more than one of those works under the powers conferred by this Order.

• (4) Where the undertaker constructs—

• (a) either Work No. 4A or Work No. 4B as part of the authorised development, the undertaker must notify the relevant planning authority prior to the commencement of the authorised development which of those Works it intends to construct, and

• (b) either Works No. 5A and 14A or Works No. 5B and 14B as part of the authorised development, the undertaker must notify the relevant planning authority prior to the commencement of the authorised development which of those Works it intends to construct.

Procedure in relation to approvals etc under Requirements

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• (1) Where an application is made to the relevant planning authority for any consent, agreement or approval required by a Requirement, the following provisions apply, as if the Requirement was a condition to which planning permission was subject—

• (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 relevant planning authority required by a condition imposed on the grant of planning permission.

• (2) For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant to this article, the undertaker is deemed to be a holder of a licence under section 6 of the Electricity Act 1989[^f00013].

Maintenance of authorised project

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Subject to other provisions of this Order or an agreement made under this Order, the undertaker may at any time and from time to time maintain the authorised project.

Power to deviate

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• (1) Subject to paragraph (2), in constructing or maintaining the authorised development comprising works numbered 1 to 14B in Schedule 1 (authorised works), the undertaker may deviate laterally from the lines or situations shown on the works plan only to the extent of the limits of deviation shown on that plan.

• (2) In constructing and maintaining Work No. 2A or 2B the undertaker may—

• (a) deviate from the commencement and termination points specified for each of the cable routes referred to in the first column of the Tables comprised within the description of those Works, and

• (b) within the limits of deviation, construct and maintain those cable routes between the commencement and termination points so shown in the Tables.

Operation of generating station

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• (1) The undertaker is authorised to operate and use the authorised development for generating electricity.

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

Benefit of Order

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• (1) Subject to the provisions of this article, 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),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) are subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

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 Act1990[^f00014] (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 may be made, and no fine may be imposed, under section 82(2) of that Act if the condition set out in paragraph (2) has been satisfied.

• (2) The condition to be satisfied for the purposes of paragraph (1) is that the defendant shows that the nuisance relates to premises used by the undertaker for the purposes of or in connection with the construction 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[^f00015].

• (3) 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), does 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.

• (4) The application to the authorised project of section 158 of the 2008 Act (nuisance: statutory authority) or any rule of law having similar effect does not extend to confer upon the undertaker the protection afforded by section 158 of the 2008 Act in respect of any nuisance arising from noise attributable to the use of the authorised project.

Street works

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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) place apparatus in the street,

• (c) maintain apparatus in the street or change its position, and

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

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 development, stop up each of the streets specified in columns (1) and (2) of Schedule 3 (streets to be stopped up) to the extent specified, by reference to the letters and numbers shown on the access plan, in column (3) of that Schedule.

• (2) No street specified in columns (1) and (2) of Schedule 3 (being a street to be stopped up for which a substitute is to be provided) may be wholly or partly stopped up under this article unless—

• (a) the new street to be substituted for it, which is specified in column (4) of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

• (b) a temporary alternative route for the passage of such traffic as could have used the street to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street until the completion and opening of the new street in accordance with sub-paragraph (a).

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

• (4) This article is subject to article 30 (apparatus etc of statutory undertakers in stopped-up streets).

• (5) This article does not relieve the undertaker from any obligation to obtain an order under sections 247 or 257 of the 1990 Act.

Public rights of way

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• (1) With effect from the stopping up of the footpath described in columns (1) and (2) of Schedule 3 (streets to be stopped up) all public rights of way over the relevant section of footpath are extinguished and public rights of way over the section of footpath described in column (4) of Schedule 3 (streets to be stopped up) to this Order are created.

• (2) This article does not relieve the undertaker from any obligation to obtain an order under sections 247 or 257 of the 1990 Act.

Application of the 1991 Act

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• (1) Works carried out under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 of the 1991 Act (street works) as major transport works if—

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

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

• (2) The provisions of the 1991 Act mentioned in paragraph (3) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved under, those provisions apply (with the necessary modifications) in relation to the temporary stopping up, temporary alteration or temporary diversion of a street by the undertaker under the powers conferred by article 14 (temporary stopping up of streets) and the carrying out of streets works under article 10 (street works) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

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

• (a) section 54 (advance notice of certain works),

• (b) section 55 (notice of starting date of works),

• (c) section 57 (notice of emergency works),

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

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

• (f) section 68 (facilities to be afforded to street authority),

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

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

• (i) section 77 (liability for cost of use of alternative route),

• (j) section 82 (liability for damage or loss caused), and

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

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

Temporary stopping up of streets

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• (1) The undertaker, during and for the purposes of carrying out the authorised project, may temporarily stop up, alter or divert any street and may for any reasonable time—

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

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