The Able Marine Energy Park Development Consent Order 2014

Made: 13th January 2014

Laid before Parliament: 10th February 2014

Coming into force: 29th October 2014

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 120 and 122 of, and paragraphs 1 to 3, 10 to 17, 24, 26, 30A to 32, 32B to 34, 36, and 37 of Part 1 of Schedule 5 to, the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation

1

This Order may be cited as the Able Marine Energy Park Development Consent Order 2014.

Interpretation

2

• (1) In this Order—

• “the 1847 Act” means the Harbours, Docks and Piers Clauses Act 1847[^f00005];

• “the 1961 Act” means the Land Compensation Act 1961[^f00006];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00007];

• “the 1980 Act” means the Highways Act 1980[^f00008];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00009];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00010];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00011];

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

• “AB Ports” means Associated British Ports, company reference number ZC000195, whose principal office is at 71-91 Aldwych, London WC2B 4HN;

• “address” includes any number or address used for the purposes of electronic transmission;

• “the approach channel” means the area bounded by co-ordinates (53°39.579’N, 00°13.223’W), (53°39.094’N, 00°12.296’W), (53°38.956’N, 00°12.570’W), (53°38.972’N, 00°12.631’W) and (53°38.956’N, 00°12.570’W) and shown on sheets 8 and 9 of the works plans;

• “area of jurisdiction” means the area within the limits of the harbour;

• “area of seaward construction activity” means the area of the sea within the Order limits;

• “authorised development” means the nationally significant infrastructure project 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 berthing pocket” means the area bounded by co-ordinates (53°39.492’N, 00°13.466’W), (53°39.476’N, 00°13.511’W), (53°39.488’N, 00°13.546’W), (53°39.528’N, 00°13.421’W) (53°39.397’N, 00°13.249’W), (53°39.415’N, 00°13.211’W), (53°38.974’N, 00°12.631’W), (53°38.947’N, 00°12.676’W), (53°38.928’N, 00°12.724’W), (53°38.945’N, 00°12.746’W), (53°38.965’N, 00°12.702’W), (53°39.389’N, 00°13.260’W) and (53°39.369’N, 00°13.304’W) and shown on sheets 4, 8 and 9 of the works plans;

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

• “Centrica” means Centrica Plc, company number 03033654, whose principal office is at Millstream, Maidenhead Road, Windsor, Berkshire, SL4 5GD, and all of its subsidiaries, and Group companies, transferees, assignees, etc., including but not limited to Centrica KPS Ltd, Centrica Storage Limited and Centrica Energy;

• “Cherry Cobb sands breach” means the area bounded by co-ordinates (53°39.427’N, 00°08.633’W), (53°39.457’N, 00°08.581’W), (53°39.554’N, 00°08.737’W) and (53°39.524’N, 00°08.789’W);

• “the Company” means Able Humber Ports Limited, company number 107029, registered at Ogier House, The Esplanade, St Helier, Jersey, JE4 9WG and whose UK branch is at Able House, Billingham Reach Industrial Estate, Billingham TS23 1PX;

• “the compensation environmental management and monitoring plan” means the plan for environmental management and monitoring on the north bank of the River Humber referred to in paragraph 19(1) of Schedule 11 (requirements);

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

• “the Conservancy Authority” means AB Ports in its role as harbour authority for the River Humber;

• “C.GEN” means C.GEN Killingholme Limited, company number 06422434, whose principal office is at 130 Shaftesbury Avenue, London, W1D 5EU;

• “C.RO” means C.RO Ports (Killingholme) Limited, company number 00278815, whose principal office is at Clough Lane, North Killingholme, North Lincolnshire, DN40 3LX;

• “the dockmaster” means the dockmaster appointed by the Harbour Authority under this Order;

• “the design drawings” means the design drawings submitted under regulation 5(2)(o) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 and certified as the design drawings by the Secretary of State for the purposes of this Order;

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

• “environmental management and monitoring plan” means all or any of the compensation environmental management and monitoring plan, the marine environmental management and monitoring plan and the terrestrial environmental management and monitoring plan;

• “E.ON” means E.ON UK Plc whose registered office is at Westwood Way, Westwood Business Park, Coventry, West Midlands CV4 8LG (company registration number 02366970);

• “former Mitigation Area A” means the area bounded by co-ordinates (53°38.543’N, 00°14.155’W), (53°38.793’N, 00°13.413’W), (53°38.543’N, 00°13.138’W), (53°38.473’N, 00°13.341W), (53°38.461’N, 00°13.346’W) and (53°38.270’N, 00°13.886’W);

• “harbour” means the authorised development within the limits of the harbour, and includes any works, land, buildings, ancillary works, plant, property and conveniences connected with it, as from time to time existing within the limits of the harbour;

• “the Harbour Authority” means the Company in its capacity as harbour authority established by article 8 (jurisdiction of the Harbour Authority), or to the extent of any transfer under article 13(1)(a) (consent to transfer benefit of order), any transferee;

• “the harbour master” means the harbour master appointed by the Conservancy Authority for the purposes of the Humber Conservancy Acts 1852 to 1951[^f00012] and the Humber Harbour Reorganisation Scheme 1966 Confirmation Order 1967[^f00013] to be a harbour master for an area that includes the area of jurisdiction and includes the harbour master’s deputies and assistants;

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

• “the inset berth” means the area bounded by co-ordinates (53°39.492’N, 00°13.466’W), (53°39.511’N, 00°13.409’W), (53°39.392’N, 00°13.253’W) and (53°39.369’N, 00°13.304’W) and shown on sheets 8 and 9 of the works plans;

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

• “level of high water” means the level of mean high-water springs;

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

• “limits of the harbour” means the boundary line shown on the plan at Schedule 10 (limits of harbour);

• “maintain” includes to inspect, repair, adjust, alter, remove, reconstruct or replace and any derivative of “maintain” is to be construed accordingly;

• “the marine environmental management and monitoring plan” means the plan for environmental management and monitoring below the high water mark referred to at paragraph 19(2) of Schedule 11;

• “MMO” means the Marine Management Organisation;

• “Network Rail” means Network Rail Infrastructure Limited, company number 02904587 registered at Kings Place, 90 York Way, London N1 9AG;

• “Order land” means the land shown on the land plans as 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 as the limits within which the authorised development and works may be carried out on the works plans , save for former Mitigation Area A;

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00014];

• “the planning application drawings” means the drawings referred to in paragraph 6(a) of Schedule 11;

• “plans” include sections, elevations, drawings, specifications, programmes, method statements and hydraulic information;

• “the pumping station outfall” means the area bounded by co-ordinates (53°38.993N, 00°13.188W), (53°38.956N, 00°13.085W), and (53°38.926N, 00°13.138W) and shown on sheets 3 and 9 of the works plans;

• “the quay limits” means the area bounded by co-ordinates (53°39.457’N, 00°13.681’W), (53°39.464’N, 00°13.662’W), (53°39.447’N, 00°13.645’W), (53°39.487’N, 00°13.546’W), (53°39.475’N, 00°13.511’W), (53°39.506’N, 00°13.416’W), (53°38.946’N, 00°12.678’W), (53°38.876’N, 00°12.849’W), (53°38.984’N, 00°13.165’W) and (53°38.985’N, 00°13.178’W) and shown on sheets 8 and 9 of the works plans;

• “relevant planning authority” means the local planning authority for the area in which the relevant land to which the provisions of this Order apply is situated;

• “requirement” means any requirement set out in the relevant paragraph of Schedule 11;

• “the 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;

• “the sections” means the sections referred to in paragraph 6(c) of Schedule 11;

• “statutory undertaker” means a person falling within the definition of statutory undertaker in 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 carriageway, 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 terrestrial environmental management and monitoring plan” means the plan for environmental management and monitoring above the high water mark on the south bank of the River Humber referred to at paragraph 19(3) of Schedule 11;

• “tidal work” means so much of any work or operation authorised by this Order as is on, under or over tidal waters or tidal lands below the level of high water;

• “tree preservation order” has the meaning given in section 198 of the 1990 Act;

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

• “Trinity House” means the Corporation of Trinity House of Deptford Strond;

• “turning area” means the area bounded by co-ordinates (53°39.406’N, 00°12.893’W), (53°39.414’N, 00°12.524’W), (53°39.112’N, 00°12.261’W) and (53°39.094’N, 00°12.296’W) and shown on sheets 8 and 9 of the works plans.

• “the undertaker” means the person who has the benefit of this Order in accordance with section 156 of the 2008 Act and articles 12 (benefit of order) and 13 (consent to transfer benefit of order);

• “the undertaking” means the harbour undertaking of the undertaker as authorised from time to time;

• “vessel” means every description of vessel or water-borne structure, however propelled, moved or constructed, and includes displacement and non-displacement craft, personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over or placement in water and which is at the time in, on or over water;

• “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 development are to be taken to be measured along that work.

Incorporation of the 1847 Act

3

• (1) With the exception of sections 6 to 23, 25, the proviso to section 28, section 31, the proviso to section 32, sections 35, 36, 38, 39, 42, 43, 45, 48 to 50, 53 to 55, 59 to 64, 66 to 69, 71 to 73, 76 and 79 to 90, 92, 97, 98 and 102, the 1847 Act is incorporated in this Order subject to the modifications stated in paragraph (2).

• (2) In construing the 1847 Act as so incorporated—

• (a) the expression “the special Act” means this Order;

• (b) the expressions “the Promoters of the undertaking” and “the undertakers” mean the undertaker;

• (c) the expression “the harbour, dock or pier” means the authorised development within the area of jurisdiction;

• (d) the expressions “limits” and “prescribed limits” mean the area of jurisdiction;

• (e) the expression “near the pier” does not extend beyond the area of jurisdiction;

• (f) the expression “the harbour master”, in relation to the authorised development means the harbour master as defined in article 2(1) (interpretation);

• (g) the definition of “vessel” in article 2(1) is to be substituted for the definition in section 3 (interpretations in this and the Special Act) of the 1847 Act; and

• (h) any requirement to comply with a notice or direction given by the harbour master is to be construed as including a requirement that, in complying with such notice or direction, a person who is subject to the notice or direction must also comply with any relevant notice or direction given by AB Ports or the harbour master in the exercise by either or both of them of any function conferred by or under any enactment (including this Order).

Modification of enactments

4

• (1) Sections 25 and 26 of the River Humber Conservancy Act 1852[^f00015], section 9 (licences for execution of works) of the Humber Conservancy Act 1899[^f00016] and section 6(2) (no erections in Humber below river lines or without licence above river lines) of the Humber Conservancy Act 1905[^f00017] do not apply to the authorised development.

• (2) The requirement to obtain consent under section 23(1) of the Land Drainage Act 1991[^f00018] does not apply to the authorised development.

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

5

• (1) Subject to the provisions of this Order and to the requirements in Schedule 11 (requirements) the undertaker is granted development consent for the authorised development, to be carried out within the Order limits.

• (2) Subject to article 6 (limits of deviation) the authorised development may only be constructed or carried out in the lines and situations shown on the works plans and at the levels shown on the sections.

Limits of deviation

6

In carrying out the authorised development the undertaker may—

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

• (b) deviate vertically from the levels of the authorised development shown on the sections—

• (i) to any extent not exceeding 1 metre upwards; or

• (ii) to any extent downwards as may be found necessary or convenient.

Period for completion of work

7

If the authorised development is not completed within 10 years from the coming into force of this Order or such extended time as the Secretary of State may on the application of the undertaker allow, then on the expiration of that period or such extended time (as the case may be) the rights granted by this Order to the undertaker for making and maintaining the works cease except as to so much of them as is then substantially commenced.

Jurisdiction of the Harbour Authority

8

• (1) Regardless of the functions of AB Ports exercisable within its limits, the Company is to be the harbour authority for the area of jurisdiction.

• (2) Regardless of any provision of the 1847 Act as incorporated by article 3 (incorporation of the 1847 Act), the area within which the Harbour Authority and the dockmaster may exercise their functions under this Order is to be the area of jurisdiction.

• (3) The jurisdiction of the Harbour Authority over vessels within the area of jurisdiction does not extend to—

• (a) any vessel unless it is at anchor or otherwise moored or is causing an obstruction within the area of jurisdiction; or

• (b) signalling or any other activity connected with the movement of the vessel.

• (4) Where any person referred to in paragraph (5)(a) considers that there is an actual or anticipated conflict between—

• (a) the exercise of any function of any person mentioned in paragraph (5)(a); and

• (b) the exercise of any function of any person mentioned in paragraph (5)(b),

then that person may give notice to the relevant person in paragraph (5)(b).

• (5) The persons referred to in paragraph (4) are—

• (a) AB Ports, C.RO and the harbour master; and

• (b) the Harbour Authority and the dockmaster.

• (6) The notice referred to in paragraph (4) must set out any requirements concerning the exercise of the relevant function by the relevant person mentioned in paragraph (5)(b).

• (7) The requirements referred to in paragraph (6) may—

• (a) make general provision in relation to the exercise of functions over time; or

• (b) make specific provision about the exercise of a particular function or functions on a particular occasion.

• (8) If—

• (a) a notice sets out requirements falling within paragraph (7)(a) it must be made in writing; and

• (b) a notice sets out requirements falling within paragraph (7)(b) it may be made in writing or in any other manner considered appropriate by the person giving the notice.

• (9) On receipt of a notice given under paragraph (4), the recipient of the notice must comply with the notice.