The Preesall Underground Gas Storage Facility Order 2015

Made: 17th July 2015

Coming into force: 7th August 2015

The Secretary of State, in exercise of the powers conferred by sections 103, 114, 115, 120, 122, 123, 142 and 149A 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 Preesall Underground Gas Storage Facility Order 2015 and shall come into force on 7th August 2015.

Interpretation

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• (1) In this Order—

• “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 1990 Act” means the Town and Country Planning Act 1990[^f00009];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00010];

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

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

• “access and temporary stopping up plans” means the plans certified as the access and temporary stopping up plans by the Secretary of State for the purposes of this Order;

• “approved development plans” mean the plans listed below and certified as the approved development plans by the Secretary of State for the purposes of this Order—A-9000-016 Rev.C (application boundary index plan); A-9100-006 Rev.C (application boundary sheet 1 of 9); A-9100-007 Rev.B (application boundary sheet 2 of 9); A-9100-008 Rev.B (application boundary sheet 3 of 9); A-9100-009 Rev.B (application boundary sheet 4 of 9); A-9100-010 Rev.B (application boundary sheet 5 of 9); A-9100-011 Rev.B (application boundary sheet 6 of 9); A-9100-012 Rev.B (application boundary sheet 7 of 9); A-9100-013 Rev.B (application boundary sheet 8 of 9); A-9100-014 Rev.B (application boundary sheet 9 of 9); A-5000-001 Rev.B (seawater pump station site location plan); A-5000-002 Rev.B (seawater pump station site plan); A-5000-003 Rev.B (seawater pump station ground floor plan); A-5000-004 Rev.B (seawater pump station elevations, cross section); A-6000-001 Rev.B (booster pump station and control centre location plan); A-6000-002 Rev.B (booster pump station site and location plan); A-6000-003 Rev.B (booster pump station ground floor plan and section); A-6000-004 Rev.B (booster pump station elevations); A-7000-001 Rev.B (entrance facilities site and location plans); A-7000-002 Rev.B (entrance facilities proposed barn rebuild); A-7000-003 Rev.B (entrance facilities gatehouse and farmhouse); A-2000-001 Rev.B (compressor station & electrical sub-station locations); A-2000-002 Rev.B (gas compressor compound site plan); A-2000-003 Rev.B (compressor compound floor plans); A-2000-004 Rev.B (gas compressor compound sectional elevations); A-2000-005 Rev.C (gas compressor compound equipment elevations); A-2000-006 Rev.B (gas compressor compound indicative planting); A-1000-001 Rev.C (wellhead compounds location plan); A-1000-030 Rev.B (cavern development); A-9100-015 Rev.C (temporary construction compounds index plan); A-9100-016 Rev.C (temporary construction compounds - sheet 1 of 5); A-9100-017 Rev.B (temporary construction compounds - sheet 2 of 5); A-9100-018 Rev.B (temporary construction compounds - sheet 3 of 5); A-9100-019 Rev.B (temporary construction compounds - sheet 4 of 5); A-9100-020 Rev.B (temporary construction compounds - sheet 5 of 5); MMD-277663-D-DR-00-XX-0100 (proposed access road - sheet 1 of 3); MMD-277663-D-DR-00-XX-0101(proposed access road - sheet 2 of 3); 277663-D-DR-00-XX-0103 (proposed access road - sheet 3 of 3); C.01117.X03 (location of outfall os map); C.01121.X03 (concrete diffuser); A-9000-032 Rev.C (seawall crossing site location plan); 4726/05 Rev.B (proposed sea wall crossing of brine outfall pipe); A-9000-001 Rev.C (master plan overall); A-9000-002 Rev.C (fleetwood master plan); A-9000-003 (Preesall master plan); A-9000-005 Rev.B (master plan/metering station); A-9000-014 Rev.C (master site location plan-reference drawing); A-9000-033 Rev.C (nts master plan); A-3000-010 Rev.B (metering station location plan); A-3000-001 Rev.B (plan and elevation metering station); and 14.10V2-WX40004-02 (landscape and ecological management strategy plan);

• “the authorised development” means the development and associated development described in Schedule 1 (authorised development);

• “Blackpool Borough Council” means the Blackpool Borough Council whose address is Town Hall, Blackpool, FY1 1AD;

• “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;

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

• “deemed Marine Licence” means the marine licence set out in Schedule 7 (deemed licence under the Marine and Coastal Access Act 2009) and deemed by article 35 to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;

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

• “existing brine cavern” means any brine cavern which existed prior to the making of this Order;

• “existing brine well” means any brine well which existed prior to the making of this Order;

• “gas” has the same meaning as natural gas in section 235 (interpretation) of the 2008 Act;

• “geology summary report” means the document entitled the updated geological summary report dated 9th May 2014 and certified as the geology summary report by the Secretary of State for the purposes of this Order;

• “Halite Energy Group” means Halite Energy Group Limited (company number 04145789) whose registered office is at Unit 5, St Georges Park, Kirkham, Lancashire, PR4 2EF;

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

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

• “the landscape and ecological management strategy plan” means the document entitled the landscape and ecological management strategy plan dated May 2012 and the drawing with reference 14.10V2-WX40004-02 and certified as the landscape and ecological management strategy plan by the Secretary of State for the purposes of this Order;

• “maintain” includes maintain, inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct, decommission, demolish, replace or improve the authorised development and “maintaining” and “maintenance” shall be construed accordingly;

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

• “operational cavern” means an underground cavern created pursuant to the powers contained in this Order and brought into operation for the storage of gas;

• “Order land” means the land shown on the land plans which is within the limits of land to be acquired and described in the book of reference;

• “the Order limits” means the limits shown on the works plans 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[^f00012];

• “Preesall halite deposit” means the member of the Kirkham Mudstone formation being a deposit characterised by halite with varying marl content and localised mudstone interbeds, more particularly described and shown as the Preesall Salt on the Geological Survey of Great Britain (England and Wales) Sheet 66, 1:50,000 Series, Solid and Drift Edition, of the British Geological Survey Classification entitled “The Geology of the country around Blackpool” dated 1990 and further described in the accompanying British Geological Survey Sheet Memoir 66;

• “Preesall site” means that part of the authorised development situated to the east of the River Wyre and shown shaded green on the Preesall site plan;

• “Preesall site plan” means the drawing dated 4th November 2011 and given drawing reference D-9000-032 certified as the Preesall site plan by the Secretary of State for the purposes of this Order;

• “relevant planning authority” means Wyre Borough Council and any successors to its function as planning authority for the area in which the land to which the provisions of this Order apply;

• “the Requirements” means the requirements set out in Schedule 9 (Requirements);

• “solution mining” means the pumping of a leaching solution into the Preesall halite deposit, such that the leaching solution dissolves the halite, thereby forming a void, and is then pumped back to surface as a halite-saturated brine;

• “the standard temperature and pressure” means 15 degrees centigrade and 1 bar atmospheric;

• “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[^f00013], 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;

• “UK marine area” has the same meaning as in section 42 of the 2009 Act[^f00014];

• “the undertaker” means the person who has the benefit of this Order in accordance with articles 7 and 8;

• “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) Save for the definition of the “undertaker”, the definitions in paragraph (1) shall not apply to Schedule 7 (deemed licence under the Marine and Coastal Access Act 2009).

• (3) The definition of the “undertaker” in paragraph (1) shall not apply to Schedule 8 (protective provisions).

• (4) 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.

• (5) All distances, directions and lengths referred to in this Order and any document 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.

PART 2 — WORKS PROVISIONS

CHAPTER 1 — Principal powers

Development consent etc. granted by the Order

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• (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—

• (a) development consent for the authorised development to be carried out within the Order limits; and

• (b) consent to use the authorised development for the purpose for which it is designed including use of the cavities to be created for the underground storage of gas.

• (2) Paragraph (1) does not relieve the undertaker of any requirement to obtain any permit or licence under any legislation that may be required from time to time to authorise the use of the authorised development for any purpose other than the matters referred to in section 33(1) of the 2008 Act.

Maintenance of authorised development

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• (1) 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 and may enter on any land within the Order limits if such entrance is reasonably required for the purpose of maintaining the authorised development.

• (2) Subject to paragraphs (1) and (3), and to the Requirements, the power to maintain the authorised development includes the power to carry out and maintain such of the following works 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 mains, sewers, drains and cables including below-ground structures associated with that apparatus within the Order limits;

• (b) works of decommissioning and demolition.

• (3) Paragraph (2) shall only authorise the carrying out or maintenance of works within the Order limits.

Limits of deviation

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

• (2) But in constructing or maintaining the authorised development, the undertaker may deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans.

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[^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 for noise management approved by the relevant planning authority as described in paragraph 27 of Schedule 9 (Requirements); 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.

CHAPTER 2 — Benefit of Order

Benefit of Order

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

Transfer of 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 (excluding the deemed Marine Licence referred to in paragraph (3) below) and such related 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 (excluding the deemed Marine Licence referred to in paragraph (3) below) 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 shall include references to the transferee or the lessee.

• (3) The undertaker may with the written consent of the Secretary of State—

• (a) where an agreement has been made in accordance with paragraph (1)(a), transfer to the transferee the whole of the deemed Marine Licence and such related statutory rights as may be agreed between the undertaker and the transferee; or

• (b) where an agreement has been made in accordance with paragraph (1)(b), grant to the lessee, for the duration of the period mentioned in paragraph (1)(b), the whole of the deemed Marine Licence and such related statutory rights as may be so agreed.

• (4) The Secretary of State shall consult the MMO before giving consent to the transfer or grant to another person of the whole of the benefit of the provisions of the deemed Marine Licence.

• (5) Where the undertaker has transferred any benefit or the deemed Marine Licence, or for the duration of any period during which the undertaker has granted any benefit or the deemed Marine Licence under paragraph (1) or (3)—

• (a) the benefit or the deemed Marine Licence transferred or granted (“the transferred benefit”) shall include any rights that are conferred, and any obligations that are imposed by virtue of the provisions to which the transferred benefit relates;

• (b) the transferred benefit shall reside exclusively with the transferee or, as the case may be, the lessee and the transferred benefit shall not be enforceable against the undertaker save in the case of the deemed Marine Licence transferred or granted in respect of any breach of an obligation by the undertaker which occurs prior to such transfer or grant or which occurs as a result of any activity carried out by the undertaker on behalf of the transferee.

• (6) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) or (3) shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by Halite Energy Group.

CHAPTER 3 — Streets

Street works

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