The Port Talbot Steelworks Generating Station Order 2015

• (3) Emergency works required in order for DCC to fulfil its functions under sub-paragraph (2) take precedence over works to be carried out by the undertaker and, in such circumstances, the undertaker must reschedule its works accordingly.

• (4) To avoid doubt, if DCC suffers any loss, cost or damage as a result of emergency action taken by the undertaker without prior notification as provided for in sub-paragraph (1), the indemnity in paragraph 11 applies.

Insurance

10

• (1) The undertaker must not commence any works under paragraph 6(1) unless the undertaker has effected acceptable insurance.

• (2) The undertaker must maintain acceptable insurance during the construction of the authorised development.

Indemnity

11

• (1) Subject to sub-paragraphs (3) to (5), the undertaker must indemnify DCC and hold it harmless against all claims, demands, costs, damages, expenses, penalties and losses that DCC may have, sustain or become liable for in consequence of works under paragraph 6(1) in respect of—

• (a) the commencement, carrying out, execution or retention of the works;

• (b) any breach of this Part relating to the performance of the works caused by the actions or default of the undertaker, its contractors, sub-contractors, licensees, agents and invitees;

• (c) damage to the environment caused by the undertaker during the works including but not limited to pollution or contamination; and

• (d) any breach of any stipulation or otherwise of any deeds of grant (or any renewal of any of the deeds of grant made on substantially the same terms, provided that DCC has supplied the undertaker with a copy of the new document) arising from the works.

• (2) The indemnity in sub-paragraph (1) includes, without limitation, the costs reasonably incurred by DCC in making good damage to DCC apparatus or restoring an interruption in the supply provided by DCC.

• (3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of DCC, its officers, servants, contractors or agents.

• (4) DCC must give the undertaker reasonable notice of any claim or demand; and no settlement or compromise may be made without the consent of the undertaker.

• (5) DCC must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity in sub-paragraph (1) applies and, if requested to do so by the undertaker, DCC must provide an explanation of how the claim has been minimised.

• (6) The undertaker is liable under this paragraph only for claims reasonably incurred by DCC.

Arbitration

12

• (1) Subject to sub-paragraph (2), differences or disputes arising between the undertaker and DCC under this Part must, unless otherwise agreed in writing, be determined by arbitration in accordance with article 25 (arbitration).

• (2) Article 25 does not apply where DCC uses a warrant of entry in accordance with the Water Industry Act 1991.

SCHEDULE 5 — PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Interpretation

1

In this Schedule—

• “appeal parties” means the relevant planning authority, the undertaker and (where relevant) every requirement consultee;

• “business day” means a day other than a Saturday, a Sunday or a public holiday in Wales;

• “requirement consultee” means a body named in a Requirement as a body to be consulted by the relevant planning authority in discharging the Requirement.

Applications made under Requirements

2

• (1) Where an application has been made to the relevant planning authority for any consent, agreement or approval required by a Requirement (including consent, agreement or approval in respect of part of a Requirement), the relevant planning authority must give notice to the undertaker of its decision on the application before the end of the decision period.

• (2) For the purposes of sub-paragraph (1), the decision period is—

• (a) in the case of Requirement 4 (detailed design)—

• (i) where no further information is requested under paragraph 3, 16 weeks from the day following the day on which the application is received by the relevant planning authority;

• (ii) where further information is requested under paragraph 3, 16 weeks from the day following the day on which the further information is received by the relevant planning authority; or

• (iii) such longer period as may be agreed by the undertaker and the relevant planning authority in writing before the end of the period referred to in paragraph (b)(i) or (b)(ii); and

• (b) in the case of any other Requirement—

• (i) where no further information is requested under paragraph 3, 8 weeks from the day following the day on which the application is received by the relevant planning authority;

• (ii) where further information is requested under paragraph 3, 8 weeks from the day following the day on which the further information is received by the relevant planning authority; or

• (iii) such longer period as may be agreed by the undertaker and the relevant planning authority in writing before the end of the period referred to in sub-paragraph (i) or (ii).

Further information

3

• (1) In relation to any application referred to in paragraph 2(1), the relevant planning authority may request such further information from the undertaker as is necessary to enable it to consider the application.

• (2) If the relevant planning authority considers that further information is necessary, the relevant planning authority must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates.

• (3) If the requirement specifies that consultation with a requirement consultee is required, the relevant planning authority must—

• (a) issue the consultation to the requirement consultee within 2 business days of receipt of the application; and

• (b) notify the undertaker in writing specifying any further information requested by the requirement consultee within 2 business days of receipt of such a request and in any event within 21 business days of receipt of the application.

Appeals

4

• (1) The undertaker may appeal if—

• (a) the relevant planning authority—

• (i) refuses an application for any consent, agreement or approval required by a Requirement;

• (ii) does not determine the application within the decision period set out in paragraph 2; or

• (iii) grants the application subject to conditions;

• (b) on receipt of a request for further information pursuant to paragraph 3, the undertaker considers that the whole or part of the specified further information requested by the relevant planning authority is not necessary to determine the application; or

• (c) on receipt of any further information requested, the relevant planning authority notifies the undertaker that the further information provided is inadequate and requests additional information that the undertaker considers is not necessary to determine the application.

• (2) The appeal process is as follows—

• (a) any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination or, where no determination has been made, end of the decision period set out in paragraph 2;

• (b) the undertaker must—

• (i) submit a copy of the application submitted to the relevant planning authority and any supporting documentation that the undertaker wishes to provide (together, the “appeal documentation”) to the Secretary of State; and

• (ii) provide on the same day copies of the appeal documentation to the relevant planning authority and any requirement consultee;

• (c) as soon as is practicable after receiving the appeal documentation, the Secretary of State must—

• (i) appoint a person to determine the appeal (the “appointed person”), who must be a qualified town planner with at least 10 years’ experience (and may but need not be a person appointed under paragraph 1 of Schedule 6 to the 1990 Act⁴⁸); and

• (ii) notify the appeal parties of the identity of the appointed person and the address to which all correspondence for the appointed person’s attention must be sent;

• (d) the relevant planning authority and any requirement consultee—

• (i) may submit written representations in respect of the appeal to the appointed person within 20 business beginning with the day following the day on which the appeal parties are notified of the appointment of the appointed person; and

• (ii) must ensure that copies of any written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

• (e) the appeal parties may make any counter-submissions to the appointed person within 20 business days of receipt of written representations made under paragraph (d); and

• (f) the appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable.

• (3) The appointment of a person under sub-paragraph (2)(c)(i) may be made by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

• (4) If the appointed person considers that further information is necessary to consider the appeal, the appointed person must as soon as is practicable notify the appeal parties in writing specifying the further information required.

• (5) The undertaker must provide the further information specified under sub-paragraph (4) to the appointed person, the relevant planning authority and any requirement consultee by the date specified by the appointed person (the “specified date”).

• (6) On or before the specified date, the appointed person must notify the appeal parties of the revised timetable for the appeal, which must require submission of written representations to the appointed person within 10 business days of the specified date but must otherwise be in accordance with the process and time limits set out in sub-paragraph (2)(d) to (f).

• (7) On an appeal under this paragraph, the appointed person may—

• (a) allow or dismiss the appeal, or

• (b) reverse or vary any part of the decision of the relevant planning authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to the appointed person in the first instance.

• (8) The appointed person must decide an appeal taking into account only such written representations as have been submitted within the relevant time limits.

• (9) The appointed person may decide an appeal even though no written representations have been submitted within the relevant time limits, if it appears that there is sufficient material to enable a decision to be made on the merits of the case.

• (10) The decision of the appointed person on an appeal is final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

• (11) If a consent, agreement or approval is given by the appointed person pursuant to this Schedule, it is deemed to be a consent, agreement or approval for the purpose of Schedule 2 (Requirements) as if it had been given by the relevant planning authority.

• (12) The relevant planning authority may confirm any determination given by the appointed person in identical form in writing, but a failure to give such confirmation (or a failure to give it in identical form) does not affect or invalidate the appointed person’s determination.

• (13) Except where a direction is given under sub-paragraph (14) requiring the costs of the appointed person to be paid by the relevant planning authority, the reasonable costs of the appointed person must be paid by the undertaker.

• (14) On application by the relevant planning authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid.

• (15) In considering whether to give a direction under sub-paragraph (14) and the terms on which to give it, the appointed person must have regard to Welsh Government Circular NAFWC 07/2003 Planning (and Analogous) Appeals and Call-in Procedures⁴⁹ or any circular or guidance which may from time to time replace it.

Signed

Signed by authority of the Secretary of State for Energy and Climate Change

Giles Scott — Head of National Infrastructure Consents and Coal Liabilities — Department of Energy and Climate Change — 8th December 2015

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order grants Tata Steel UK Limited development consent for a gas-fired generating station on the site of the Port Talbot steelworks. The Order provides for the decommissioning of the existing generating station on the site. The Order authorises the extinguishing of rights over land and the creation and compulsory acquisition of new rights over land for the purposes of the development.

A copy of the plans, book of reference and other documents mentioned in this Order and certified in accordance with article 22 may be inspected free of charge during working hours at the offices of Neath Port Talbot County Borough Council, Civic Centre, Port Talbot SA13 1PJ.

Footnotes

Editorial notes