The Wrexham Gas Fired Generating Station Order 2017

Enactments and agreements

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Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Wales and West Utilities in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 7 — FOR THE PROTECTION OF THE SOLAR OPERATOR

Application

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For the protection of the solar operator as referred to in this Part of this Schedule 9, the following provisions will, unless otherwise agreed in writing between the undertaker and the solar operator, have effect.

Interpretation

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In this Part of this Schedule—

• “apparatus” means any solar photovoltaic panels, cables or other apparatus belonging to or maintained by the solar operator for the purposes of electricity generation and for the export of electricity pursuant to the solar farm permission (including but not limited to all reasonably necessary protective equipment for such electricity generation and export of electricity such as security devices and fencing);

• “authorised development” has the same meaning as in article 2(1) (interpretation) of this Order and (unless otherwise specified) for the purposes of this Schedule is to include the use and maintenance of the authorised development;

• “diversionary agreement” means a contractually binding agreement providing for the passage of a gas pipeline around the solar farm site;

• “diversionary planning permission” means any planning permission that may be granted pursuant to the 1990 Act providing for the routing of a gas pipeline to avoid the solar farm site;

• “gas pipeline” means a pipeline to carry gas between Maelor Gasworks and Work No. 1;

• “in” in a context referring to apparatus in land, includes a reference to apparatus under, over or upon land;

• “solar farm permission” means full planning permission granted on 31 July 2015 by Wrexham Country Borough Council for the apparatus (Ref P/2015/0287) including any planning permission granted pursuant to an application to vary any condition of planning permission (Ref P/2015/0287) under section 73 of the 1990 Act;

• “solar farm site” means the site on which planning permission was granted by the solar farm permission;

• “solar operator” means the operator from time to time of the solar farm on the solar farm site which has consent pursuant to the solar farm permission; and

• “specified work” means so much of any of the works comprised in the authorised development or works required to facilitate or which are incidental to the authorised development (including, but without limitation, the gas pipeline) which are in, on or under any land purchased, leased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus.

Removal of apparatus

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• (1) If, for the purpose of executing any specified work, the undertaker requires the removal of any apparatus in the solar farm site, the undertaker must give the solar operator written notice of that requirement, together with a plan and section of the work proposed and a plan, section and description of the specified work to be executed with written confirmation of the extent to which the removed apparatus can be reinstated as soon as reasonably practicable following completion of the execution of the specified work.

• (2) Within 56 days of receipt of the written notice referred to in sub-paragraph (1) the solar operator must proceed without unnecessary delay to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (3) Regardless of anything in sub-paragraph (2), the undertaker may, in the notice issued under sub-paragraph (1), give notice to the solar operator that it desires itself to execute any work, or part of any work, in connection with the removal of apparatus in any of plots GC12, GC12A and GC12B as identified on the land plans, and where such notice is given that work, instead of being executed by the solar operator, must be executed by the undertaker within 56 days of the solar operator receiving such notice.

• (4) Where notice is given in the circumstances described in sub-paragraph (3), the undertaker must provide the solar operator with the opportunity to supervise any work, or part of any work, in connection with the removal of apparatus but if the solar operator does not provide any superintendence within the required 56 days, then the undertaker may proceed to execute the works.

• (5) Nothing in sub-paragraphs (3) or (4) authorises the undertaker to execute the connection or disconnection of any apparatus. In carrying out any works under sub-paragraph (3) or (4), the undertaker must comply with all statutory obligations which would have been applicable had the works been carried out by the solar operator and the undertaker must ensure that the works are carried out by persons competent and suitably qualified to carry out such works.

• (6) Where the undertaker has served written notice in accordance with sub-paragraph (1) the solar operator must proceed to disconnect any apparatus to be removed without delay upon written request from the undertaker.

• (7) Where the undertaker has served written notice in accordance with sub-paragraph (1), the solar operator must, within 56 days of receipt of such notice, give written notice to the undertaker whether it requires the undertaker to reinstate the removed apparatus in accordance with such reasonable requirements as the solar operator may specify and if no notice is received by the undertaker, the undertaker is under no obligation to reinstate the removed apparatus.

Retained apparatus

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• (1) Not less than 56 days before the commencement of any specified work that does not require the removal of apparatus under paragraph 69 (removal of apparatus) the undertaker must submit to the solar operator a plan, section and description of the specified work to be executed.

• (2) Those specified works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (4) by the solar operator for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

• (3) The solar operator is entitled to watch and inspect the execution of any specified work.

• (4) Any requirements made by the solar operator under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

• (5) If the solar operator in accordance with sub-paragraph (4) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraph 69 (removal of apparatus) applies as if the removal of the apparatus had been required by the undertaker under paragraph 69(1).

• (6) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any specified work, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

• (7) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the solar operator notice as soon as is reasonably practicable and a plan, section and description of those specified works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

Expenses and costs

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• (1) Subject to the following provisions of this paragraph, the undertaker must repay to the solar operator the reasonable expenses incurred by the solar operator in, or in connection with, the inspection, removal, reinstatement, alteration or protection of any apparatus which may be required in consequence of the execution of any of any of the works referred to in paragraph 69 or any specified work.

• (2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed and not reinstated under the provisions of this Part of this Schedule, that value being calculated after removal.

• (3) If in accordance with the provisions of this Part of this Schedule—

• (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration (as provided for in paragraph 74 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the solar operator by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

• (4) For the purposes of sub-paragraph (3)—

• (a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraphs 69 or 70; and

• (b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

• (5) An amount which apart from this sub-paragraph would be payable to the solar operator in respect of works by virtue of sub-paragraph (1) if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer the solar operator any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.

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• (1) Subject to sub-paragraphs (2) and (3), if by reason of or in consequence of the construction of any of the works referred to in paragraphs 69 or 70 or any specified work, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the solar operator, or there is any interruption in any service provided, or in the supply of any goods, by the solar operator, the undertaker must—

• (a) bear and pay the cost reasonably incurred by the solar operator in making good such damage or restoring the supply; and

• (b) make reasonable compensation to the solar operator for any other expenses, loss, damages, penalty or costs incurred by the solar operator,

by reason or in consequence of any such damage or interruption.

• (2) 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 the solar operator, its officers, servants, contractors or agents.

• (3) The solar operator must give the undertaker reasonable notice of any claim or demand pursuant to sub-paragraph (1) above and no settlement or compromise is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Co-operation

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Where in consequence of the proposed construction of any of the authorised development or any specified work, the solar operator makes requirements for the protection or removal of apparatus under paragraphs 69(4) or 69(5), the undertaker shall use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and/or any specified work and taking into account the need to ensure the safe and efficient and economic operation of the apparatus and the solar operator shall use its best endeavours to co-operate with the undertaker for that purpose.

Arbitration

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Any difference or dispute arising between the undertaker and the solar operator under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the solar operator, be determined by arbitration in accordance with article 38 (arbitration).

Enactments and agreements

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Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and the solar operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Compulsory acquisition and temporary use

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• (1) The rights set out in sub-paragraph (2) are not exercisable by the undertaker over the solar farm site if—

• (a) a diversionary agreement has been concluded; and

• (b) a diversionary planning permission has been granted which authorises the construction of a gas pipeline over the route to which the diversionary agreement applies; and

• (c) the land has been acquired by the undertaker under the diversionary agreement.

• (2) Sub-paragraph (1) applies to the following rights—

• (a) article 17 (compulsory acquisition of land);

• (b) article 18 (compulsory acquisition of rights etc);

• (c) article 22 (acquisition of subsoil only);

• (d) article 24 (private rights);

• (e) article 25 (rights under or over streets);

• (f) article 26 (temporary use of land for carrying out the authorised development);

• (g) article 27 (temporary use of land for maintaining the authorised development); and

• (h) article 28 (statutory undertakers).

SCHEDULE 10 — PROCEDURE FOR DISCHARGE OF REQUIREMENTS

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• (1) Where an application has been made to the relevant authority for any consent, agreement or approval required by a requirement (including agreement or approval in respect of part of a requirement) included in this Order the relevant authority must give notice to the undertaker of their decision on the application within a period of eight weeks beginning with—

• (a) the day immediately following that on which the application is received by the authority;

• (b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 2; or

• (c) such longer period as may be agreed by the undertaker and the relevant authority in writing.

• (2) Subject to sub-paragraph (3), in the event that the relevant authority does not determine an application within the period set out in sub-paragraph (1), the relevant authority is to be taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

• (3) Where—

• (a) an application has been made to the relevant planning authority for any consent, agreement or approval required by a requirement included in this Order;

• (b) the relevant planning authority does not determine such application within the period set out in sub-paragraph (1); and

• (c) such application is accompanied by a report that considers it likely that the subject matter of such application will give rise to any materially new or materially different environmental effects in comparison with the authorised development as approved, then the application is to be taken to have been refused by the relevant planning authority at the end of that period.

• (4) Where any application is made as described in sub-paragraph (1), the undertaker must include a statement in such application that refers to the timeframe for consideration of the application and the consequences of failure to meet that timeframe as prescribed by sub-paragraphs (1), (2) and (3).

• (5) Where an application is made to the relevant planning authority for any consent, agreement or approval required by requirements 3(1), 4(1), 5(1), 12(1) or 13(1) (including agreement or approval in respect of part of a requirement), the undertaker must at the same time as making the application send a copy of the materials provided in support of the application to NRW and, in respect of requirement 12(1) only, Dŵr Cymru Cyfyngedig, and must draw NRW and Dŵr Cymru Cyfyngedig’s attention to the procedure set out in paragraphs 1 to 3 of this Schedule and state that any comments must be provided to the relevant planning authority within 21 days if they are to be considered by the relevant planning authority.

• (6) Where an application is made to the relevant planning authority for any consent, agreement or approval required by requirements 3(1), 4(1), 5(1), 12(1) or 13(1) (including agreement or approval in respect of part of a requirement), the relevant planning authority is not required to consider comments received from NRW and, in respect of requirement 12(1) only, Dŵr Cymru Cyfyngedig more than 21 days after the date of the application.

• (7) Where an application is made to the relevant planning authority for any consent, agreement or approval required by an article or requirement in this Order and the relevant planning authority intends to consult NRW and Dŵr Cymru Cyfyngedig in relation to that application, the undertaker must as soon as reasonably practicable comply with any direction from the relevant planning authority to provide a copy of the materials provided in support of the application to each body specified in the direction.

Further information

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• (1) In relation to any part of the application to which this Schedule applies, the relevant authority has the right to request such further information from the undertaker as is necessary to enable it to consider the application.

• (2) In the event that it considers such further information to be necessary the relevant authority must, within twenty one 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. In the event that the relevant authority does not give such notification within this twenty one day period it is deemed to have sufficient information to consider the application and thereafter is not entitled to request further information without the prior agreement of the undertaker.

• (3) Where further information is requested under this paragraph 2 in relation to part only of an application, that part is to be treated as separate from the remainder of the application for the purposes of calculating time periods in paragraph 1(1)(b), paragraph 1(3) and this paragraph 2.

Appeals

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• (1) The undertaker may appeal in the event that—

• (a) the relevant authority refuses (including a deemed refusal pursuant to paragraph 1(3)) an application for any consent, agreement or approval required by an article or requirement included in this Order or grants it subject to conditions;

• (b) on receipt of a request for further information pursuant to paragraph 2 the undertaker considers that either the whole or part of the specified information requested by the relevant authority is not necessary for consideration of the application; or

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

• (2) The appeal process is to be as follows—

• (a) The undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the relevant authority and any article or requirement consultee (together with the undertaker, these are the “appeal parties”);

• (b) The Secretary of State must appoint a person as soon as reasonably practicable after receiving the appeal documentation and must forthwith notify the appeal parties of the identity of the appointed person and the address to which all correspondence for his attention should be sent;

• (c) The relevant authority and any requirement consultee must submit written representations to the appointed person in respect of the appeal within twenty six days of the appointment of the person pursuant to sub-paragraph (b) and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

• (d) The appeal parties must make any counter-submissions to the appointed person within twenty six days of receipt of written representations pursuant to sub-paragraph (c) above; and

• (e) The appointed person must make his decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within forty days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (d).

The appointment of the person pursuant to sub-paragraph (b) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

• (3) In the event that the appointed person considers that further information is necessary to enable him to consider the appeal he must, within twelve days of his appointment, notify the appeal parties in writing specifying the further information required.

• (4) Any further information required pursuant to sub-paragraph (3) must be provided by the undertaker to the appointed person, the relevant authority and any requirement consultee on the date specified by the appointed person (the “specified date”), and the appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of written representations to the appointed person within fourteen days of the specified date but must otherwise be in accordance with the process and time limits set out in sub-paragraph (2)(c) to (e).

• (5) 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 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 him in the first instance.

• (6) The appointed person may take into account written representations that have been sent outside of the relevant time limits but the appointed person must proceed to a decision within the time limits set by this Schedule.

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

• (8) The decision of the appointed person on an appeal is to be 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.

• (9) If an approval is given by the appointed person pursuant to this Schedule, it is deemed to be an approval for the purpose of Schedule 1 (authorised development) of this Order as if it had been given by the relevant authority. The relevant 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) is not to be taken to affect or invalidate the effect of the appointed person’s determination.

• (10) Save where a direction is given pursuant to sub-paragraph (11) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

• (11) On application by the relevant 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. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to Planning Practice Guidance: Appeals (March 2014) or any circular or guidance which may from time to time replace it.

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In this Schedule “relevant authority” means the relevant planning authority, relevant highway authority, traffic authority, street authority, or the owner of a watercourse, sewer or drain as may be appropriate to the consent, agreement or approval sought.

Signed

Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy

Giles Scott — Head of Energy Infrastructure Planning and Coal Liabilities — Department for Business, Energy and Industrial Strategy — 18th July 2017

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order authorises Wrexham Power Limited (referred to in this Order as the undertaker) to construct, operate and maintain a gas fired electricity generating station of up to 299 MWe. The Order would permit the undertaker to acquire, compulsorily or by agreement, rights in land and to use land for this purpose.

A copy of the Order plans and the book of reference mentioned in this Order and certified in accordance with article 35 of this Order (certification of plans etc.) may be inspected free of charge during working hours at Contact Wrexham, 16 Lord Street, Wrexham LL11 1LG

Footnotes

Editorial notes