The Drax Power (Generating Stations) Order 2019

Made: 4th October 2019

Coming into force: 25th October 2019

An application under section 37 of the Planning Act 2008 (“the 2008 Act”) has been made to the Secretary of State for an order granting development consent.

The application has been examined by the Examining Authority appointed by the Secretary of State pursuant to Chapter 2 of Part 6 of the 2008 Act. The examination was carried out in accordance with Chapter 4 of Part 6 of the 2008 Act and the Infrastructure Planning (Examination Procedure) Rules 2010 . The Examining Authority has submitted a report and recommendation to the Secretary of State under section 74 of the 2008 Act.

The Secretary of State has considered the report and recommendation of the Examining Authority, has considered the environmental information in accordance with regulation 4 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 and has had regard to the documents and matters referred to in section 104(2) of the 2008 Act.

The Secretary of State, having decided the application, has determined to make an order giving effect to the proposals comprised in the application on terms that in the opinion of the Secretary of State are not materially different from those proposed in the application.

Accordingly, 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 Drax Power (Generating Stations) Order 2019 and comes into force on 25th October 2019.

Interpretation

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• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961 ;

• “the 1965 Act” means the Compulsory Purchase Act 1965 ;

• “the 1980 Act” means the Highways Act 1980 ;

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981 ;

• “the 1984 Act” means the Road Traffic Regulation Act 1984 ;

• “the 1990 Act” means the Town and Country Planning Act 1990 ;

• “the 1991 Act” means the New Roads and Street Works Act 1991 ;

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

• “access and rights of way plans” means the plans of that name identified in the Table 17in Schedule 14 (documents and plans to be certified) and which are certified by the Secretary of State as the access and rights of way plans for the purposes of this Order;

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

• “AOD” means above ordnance datum;

• “AGL” means above ground level;

• “apparatus” has the same meaning as in Part 3 of the 1991 Act except that it further includes pipelines (and parts of them), aerial markers, cathodic protection test posts, field boundary markers, transformer rectifier kiosks, electricity cables, telecommunications equipment and electricity cabinets;

• “authorised development” means the development and associated development described in Schedule 1 (authorised development) which is development within the meaning of section 32 of the 2008 Act;

• “book of reference” means the document of that name identified in the table in Schedule 14 and which is 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;

• “carbon capture readiness reserve space” means the area comprised in Work No. 10 shown on the works plans;

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

• “the CHP statement” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the CHP statement for the purposes of this Order;

• “commence” means carry out a material operation, as defined in section 155 of the 2008 Act (which explains when development begins), comprised in or for the purposes of the authorised development other than the permitted preliminary works (except where stated to the contrary) and “commencement”, “commenced” and cognate expressions are to be construed accordingly;

• “commissioning” means the process of assuring that all systems and components of each of numbered works 1A and 2A (which are installed or whose installation is near to completion) are tested to verify that they function and are operable in accordance with the design objectives, specifications and operational requirements of the undertaker and “commission” and other cognate expressions, in relation to numbered works 1A and 2A, are to be construed accordingly;

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

• “date of Work No. 1A full commissioning” means the date on which the commissioning of numbered work 1A is completed as notified by the undertaker to the relevant planning authority pursuant to Requirement 4(2) of Schedule 2;

• “date of Work No. 2A full commissioning” means the date on which the commissioning of numbered work 2A is completed as notified by the undertaker to the relevant planning authority pursuant to Requirement 4(3) of Schedule 2;

• “design parameters” means the parameters set out in Schedule 13 (design parameters)

• “Drax Power Limited” means Drax Power Limited (Company Registration Number 04883589) whose registered office is at Drax Power Station, Selby, North Yorkshire YO8 8PH;

• “Electricity Acts” means the Electric Lighting Act 1909 , the Electricity (Supply) Act 1919 and the Electricity Act 1989 ;

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form;

• “the environmental statement” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the environmental statement for the purposes of this Order;

• “the flood risk assessment” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the flood risk assessment for the purposes of this Order;

• “footpath” and “footway” have the same meaning as in the 1980 Act;

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

• “the land plans” means the plans of that name identified in the table in Schedule 14 and which are certified by the Secretary of State as the land plans for the purposes of this Order;

• “limits of deviation” means the limits of deviation shown for each work number on the works plans;

• “maintain” includes inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part of, but not remove, reconstruct or replace the whole of, the authorised development provided that any such activities do not give rise to any materially new or materially different environmental effects which are worse than those assessed in the environmental statement and “maintenance” and “maintaining” are to be construed accordingly;

• “NGET” means National Grid Electricity Transmission plc (Company Registration Number 02366977) whose registered office is at 1 to 3 Strand, London, WC2N 5EH;

• “NGG” means National Grid Gas plc (Company Registration Number 02006000) whose registered office is at 1 to 3 Strand, London WC2N 5EH;

• “Order land” means the land delineated and marked as such on the land plans;

• “Order limits” means the limits shown on the works plans within which the authorised development may be carried out;

• “the outline construction environmental management plan” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction environmental management plan for the purposes of this Order;

• “the outline construction traffic management plan” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction traffic management plan for the purposes of this Order;

• “the outline construction worker travel plan” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline construction worker travel plan for the purposes of this Order;

• “the outline landscape and biodiversity strategy” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline landscape and biodiversity strategy for the purposes of this Order;

• “the outline public right of way management plan” means the document of that name identified in the table in Schedule 14 and which is certified by the Secretary of State as the outline public right of way management plan for the purposes of this Order;

• “the outline surface water drainage strategy” means the outline surface water drainage strategy in section 6.0 of the flood risk assessment;

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

• “permitted preliminary works” means, subject to article 7(2), all or any of—environmental surveys, geotechnical surveys, intrusive archaeological surveys and other investigations for the purpose of assessing ground conditions, demolition of buildings and removal of plant and machinery;above ground site preparation for temporary facilities for the use of contractors;the provision of temporary means of enclosure and site security for construction;the temporary display of site notices or advertisements; orsite clearance (including vegetation removal, demolition of existing buildings and structures);

• “Planning Acts” means the Town and Country Planning Act 1947 , the Town and Country Planning Act 1962 , the Town and Country Planning Act 1971 , and the 1990 Act;

• “plot” means the plots listed in the book of reference and shown on the land plans;

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

• “Requirements” means those matters set out in Schedule 2 (Requirements) and “Requirement” means any one of the Requirements;

• “stage 1” means numbered works 1, 3A, 4A, 5, 6, 7, 8A, 9 (only in so far as applicable to numbered work 1), 11 (only in so far as applicable to numbered work 1), 12A, 13 and 14 and as further described in the environmental statement;

• “stage 2” means numbered works 2, 3B, 4B, 8B, 9 (only in so far as applicable to numbered work 2), 11 (only in so far as applicable to numbered work 2), 12B and as further described in the environmental statement;

• “statutory undertaker” means any person falling within section 127(8) of the 2008 Act and includes a public communications provider defined by section 151(1) of the Communications Act 2003 ;

• “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 any footpath and any part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

• “street works” means the works listed in article 9(1);

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

• “undertaker” means ... the person who has the benefit of this Order in accordance with article 6;

• “watercourse” includes every river, stream, creek, ditch, drain, canal, cut, culvert, dyke, sluice, sewer and passage through which water flows except a public sewer or drain;

• “the works plans” means the plans of that name identified in the table in Schedule 14 and which are certified by the Secretary of State as the works plans 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 and to any trusts or incidents (including restrictive covenants) to which the land is subject and references to the creation or acquisition of new rights include the imposition of restrictive covenants which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or over which rights are created and acquired under this Order or is otherwise comprised in this Order.

• (3) All distances, directions and lengths referred to in this Order are approximate and distances between lines and/or points on a numbered work comprised in the authorised development and shown on the works plans and access rights of way plans are to be taken to be measured along that work.

• (4) References in this Order to numbered works are references to the works comprising the authorised development as numbered in Schedule 1 and shown on the works plans and a reference in this Order to a work designated by a number, or by a combination of letters and numbers (for example, “Work No. 1A” or “numbered work 1A”), is a reference to the work so designated in that Schedule and a reference to “Work No. 1” or “numbered work 1” means numbered works 1A to 1D inclusive and the same principle applies to such numbered works that contain letters.

• (5) In this Order, the expression “includes” is to be construed without limitation.

• (6) In this Order, references to any statutory body include that body's successor bodies.

• (7) All areas described in square metres in the book of reference are approximate.

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, the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

• (2) Each numbered work maybe situated only within the corresponding numbered area shown on the works plans and within the limits of deviation.

Maintenance of authorised development

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• (1) The undertaker may at any time maintain the authorised development except to the extent that this Order or an agreement made under this Order provides otherwise.

• (2) This article authorises the carrying out of maintenance works only within the Order limits.

Operation of authorised development

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• (1) The undertaker is authorised to use and operate the generating stations comprised in the authorised development.

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

Benefit of the Order

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Subject to article 7 (consent to transfer ... benefit of the Order), the provisions of this Order have effect solely for the benefit of Drax Power Limited save for—

• (a) Work No. 6A in relation to which the provisions of this Order have effect for the benefit of Drax Power Limited and NGG; and

• (b) Work No 8 in relation to which the provisions of this Order have effect for the benefit of Drax Power Limited and NGET.

Consent to transfer benefit of the Order

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• (1) Subject to paragraph (4), the undertaker may—

• (a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order which resides for the time being in the undertaker (including any of the numbered works) and such related statutory rights as may be agreed in writing 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 which resides for the time being in the undertaker (including any of the numbered works) and such related statutory rights as may be so agreed.

• (2) Where a transfer or grant 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) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

• (4) The consent of the Secretary of State is required for the exercise of the powers of paragraph (1) except where—

• (a) the transferee or lessee is—

• (i) the holder of a licence under section 6 of the Electricity Act 1989 ;

• (ii) in relation only to a transfer or lease of Work No. 6 or Work No. 7, the holder of a licence under section 7 of the Gas Act 1986 ; or

• (iii) in relation to a transfer or lease of any works within a highway, a highway authority responsible for the highways within the Order land; or

• (b) the time limits for all claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—

• (i) no such claims have been made;

• (ii) any such claims that have been made have all been compromised or withdrawn;

• (iii) compensation has been paid in final settlement of all such claims;

• (iv) payment of compensation into court in lieu of settlement of all such claims has taken place; or

• (v) it has been determined by a tribunal or court of competent jurisdiction in respect of all such claims that no compensation is payable.

• (5) Where the consent of the Secretary of State is not required under paragraph (4), the undertaker must notify the Secretary of State in writing before transferring or granting a benefit referred to in paragraph (1).

• (6) The notification referred to in paragraph (5) must state—