The Millbrook Gas Fired Generating Station Order 2019

Made: 13th March 2019

Coming into force: 3rd April 2019

An application under section 37 (applications for orders granting development consent) 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 a single appointed person appointed by the Secretary of State pursuant to Chapter 3 (the single appointed person procedure) of Part 6 of the 2008 Act and carried out in accordance with Chapter 4 of Part 6 of the 2008 Act and the Infrastructure Planning (Examination Procedure) Rules 2010 . The single appointed person has submitted a report and recommendation to the Secretary of State under section 83 (single appointed person to examine and report on application) of the 2008 Act .

The Secretary of State has considered the report and recommendation of the Examining Authority, has taken into account the environmental information in accordance with regulation 3 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and has had regard to the documents and matters referred to in section 104(2) (decisions in cases where national policy statement has effect) 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.

In accordance with section 127 (statutory undertakers' land) of the 2008 Act , the Secretary of State has applied the relevant tests and is satisfied that they have been met.

Accordingly, the Secretary of State, in exercise of the powers in sections 114 (grant or refusal of development consent order), 115 (development for which development consent may be granted), and 120 (what may be included in order granting development consent) 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 Millbrook Gas Fired Generating Station Order 2019 and comes into force on 3rd April 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 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 ;

• “the access road visibility splay” means the visibility splay shown hatched in purple on the access road visibility splay plan;

• “access road visibility splay plan” means the plan identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified by the Secretary of State as the access road visibility splay plan for the purposes of this Order;

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

• “apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

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

• “book of reference” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order 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;

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

• “commence” means beginning to carry out any material operation, as defined in section 155 (when development begins) of the 2008 Act, comprised in or carried out for the purposes of the authorised development other than operations consisting of environmental surveys and monitoring, investigations for the purpose of assessing ground conditions, receipt and erection of construction plant and equipment, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and the words “commencement” and “commenced” and cognate expressions are to be construed accordingly;

• “date of final commissioning” means the date on which the authorised development commences operation by generating power on a commercial basis but excluding the generation of power during commissioning and testing;

• “design principles statement” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and certified as such by the Secretary of State for the purposes of this Order;

• “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 identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as such by the Secretary of State for the purposes of this Order;

• “exhaust gas emission flue stack” means the exhaust gas emission flue stack including ancillary support structures, sound proof cladding, and emissions monitoring platforms;

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

• “gas turbine generator” means one gas turbine which drives a single electricity generator for the purposes of generating electricity including air inlet filter house, air inlet duct, exhaust diffuser, and auxiliaries such as lube oil system, air dryers, fuel gas filter package, instrument air system and compressor washing;

• “gross rated electrical output” means the aggregate of gross electrical power as measured at the terminals of the generator in accordance with standards agreed with the regulating authority under the Environmental Permitting (England and Wales) Regulations 2016;

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

• “land plans” means the plans identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which are certified as the land plans by the Secretary of State for the purposes of this Order;

• “limits of deviation” means, in respect of numbered works 1A, 1B, 1C, 1D, 2A, 2B, 3A, 3B, 4A, 4B, 5, 6, 7, and 8 the outer limits of the corresponding numbered area shown on the works plans;

• “low level restoration scheme agricultural track” means an access track into Rookery South Pit from Green Lane which is in part existing and in part to be constructed in accordance with the planning permission for the low level restoration scheme of Rookery South Pit (reference number BC/CM/2000/8);

• “low level restoration scheme baseline works” means the works permitted by the planning permission for the low level restoration scheme of Rookery South Pit (reference number BC/CM/2000/8) and shown on the low level restoration scheme baseline works plan;

• “low level restoration scheme baseline works plan” means the plan identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the low level restoration scheme baseline works plan by the Secretary of State for the purposes of this Order;

• “low level restoration scheme drainage strategy” means the drainage strategy to be approved pursuant to conditions 8 and 9 of the planning permission for the low level restoration scheme of Rookery South Pit (reference number BC/CM/2000/8);

• “low level restoration scheme secondary access track” means an access track into Rookery South Pit from Station Lane which is to be constructed in accordance with the planning permission for the low level restoration scheme of Rookery South Pit (reference number BC/CM/2000/8);

• “maintain” includes, to the extent assessed in the environmental statement, inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part, but not the whole of, the authorised development and “maintenance” and “maintaining” are to be construed accordingly;

• “Millbrook Power Limited” means Millbrook Power Limited (Company No. 08920458) whose registered office is at Drax Power Station, Drax, Selby, North Yorkshire YO58 8PH;

• “National Grid Electricity” means National Grid Electricity Transmission plc (Company Registration Number 02366977) whose registered office is at 1 to 3 Strand, London, WE2N 5EH;

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

• “Network Rail” means Network Rail Infrastructure Limited (Company Registration Number 02904587) whose registered office is at 1 Eversholt Street, London, NW1 2DN;

• “Order land” means the land which is required for, or is required to facilitate, or is incidental to, or is affected by, the authorised development shown on the land plans and described in the book of reference;

• “Order limits” means the limits shown on the works plans;

• “outline construction environment management plan” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the outline construction environment management plan by the Secretary of State for the purposes of this Order;

• “outline construction traffic management measures” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the outline construction traffic management measures by the Secretary of State for the purposes of this Order;

• “outline landscape and ecological mitigation and management strategy” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the outline landscape and ecological mitigation and management strategy by the Secretary of State for the purposes of this Order;

• “outline lighting strategy” means the document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the outline lighting strategy by the Secretary of State for the purposes of this Order;

• “outline travel plan” means document identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the outline travel plan by the Secretary of State for the purposes of this Order;

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

• “relevant planning authority” means Central Bedfordshire Council in relation to land in its area and Bedford Borough Council in relation to land in its area, and “the relevant planning authorities” means both of them;

• “requirements” means those matters set out in Schedule 2 to this Order;

• “rights of way, streets and access plan” means the plan identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is certified as the rights of way, streets and access plan by the Secretary of State for the purposes of this Order;

• “Rookery South access road” means the access road comprising numbered work 5A pursuant to The Rookery South (Resource Recovery Facility) Order 2011 ;

• “statutory undertaker” means any person falling within section 127(8) (statutory undertakers' land) of the 2008 Act;

• “street” means a street within the meaning of section 48 (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes any footpath and “street” includes any part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

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

• “undertaker” meansin respect of the authorised development, Millbrook Power Limited;in respect of numbered works 5, 6 and 7, Millbrook Power Limited and National Grid Electricity; andin respect of numbered work 3A, Millbrook Power Limited and National Grid Gas;

• “watercourse” includes all rivers, streams, creeks, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

• “works plans” means the plans identified in Table 11 of Schedule 14 (documents and plans to be certified) to this Order and which is 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 and references in this Order to the imposition of restrictions are references to restrictive covenants over land 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 plan and rights of way, streets and access plan are to be taken to be measured along that work.

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

• (5) 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 to numbered work 1 means 1A to 1D (inclusive), a reference to numbered work 2 means 2A and 2B (inclusive), a reference to numbered work 3 means 3A and 3B (inclusive), and a reference to numbered work 4 means 4A and 4B (inclusive). References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the rights of way, streets and access plan.

• (6) The expression “includes” is to be construed without limitation.

• (7) References to any statutory body include that body's successor bodies as from time to time have jurisdiction over the authorised development.

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 in Schedule 2, the undertaker is granted development consent for the authorised development in Schedule 1 to be carried out within the Order limits.

• (2) Subject to paragraph (3), each numbered work must be situated within the numbered area shown on the works plans.

• (3) In constructing each numbered work, the undertaker may deviate within the corresponding numbered area(s) shown on the works plans up to 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 only authorises the carrying out of maintenance works within the Order limits.

Operation of authorised development

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

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

Benefit of this Order

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• (1) Subject to paragraph (2) and article 7 (consent to transfer benefit of the Order), the provisions of this Order have effect solely for the benefit of Millbrook Power Limited.

• (2) Paragraph (1) does not apply to—

• (a) numbered works 5, 6 and 7 for which development consent is granted by this Order for the benefit of Millbrook Power Limited and National Grid Electricity; and

• (b) numbered works 3A for which development consent is granted by this Order for the benefit of Millbrook Power Limited and National Grid Gas.

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 (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 (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 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 the holder of a licence under section 6 (licences authorising supply, etc) of the Electricity Act 1989 or section 7 (licensing of public gas transporters) of the Gas Act 1986 ; 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;