The Immingham Open Cycle Gas Turbine Order 2020

Made: 7th August 2020

Coming into force: 1st September 2020

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 was examined by a single appointed person (appointed by the Secretary of State) in accordance with Chapters 3 and 4 of Part 6 of the 2008 Act and the Infrastructure Planning (Examination Procedure) Rules 2010 . The single appointed person having considered the application with the documents that accompanied the application, and the representations made and not withdrawn, has, in accordance with section 83 of the 2008 Act, submitted a report and recommendation to the Secretary of State.

The Secretary of State having considered the representations made and not withdrawn, the report and recommendation of the single appointed person and having taken into account the environmental information in accordance with regulation 4 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 and having 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 has determined to make an Order granting development consent for the development comprised in the application on terms that, in the opinion of the Secretary of State, are not materially different from those comprised 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 Immingham Open Cycle Gas Turbine Order 2020 and comes into force on 1st September 2020.

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 which are certified as the access and rights of way plans by the Secretary of State under article 39 (certification of plans etc.) 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 and 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;

• “Anglian Water” means Anglian Water Services Limited (company number 2366656) whose registered address is Lancaster House Lancaster Way, Ermine Business Park, Huntingdon, Cambridge, United Kingdom PE29 6XU;

• “authorised development” means the development described in Schedule 1 (authorised development) and any other development authorised by this Order within the meaning of section 32 (meaning of “development”) of the 2008 Act;

• “book of reference” means the document of that description set out in Schedule 11 (documents and plans to be certified) certified by the Secretary of State as the book of reference under article 39 for the purposes of this Order and the document which is certified by the Secretary of State as the supplemental book of reference under article 39 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 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 and the words “commencement” and “commenced” and cognate expressions are to be construed accordingly;

• “commissioning” means the process of testing all systems and components of the authorised development (which are installed or in relation to which installation is nearly complete) in order to ensure that they, and the authorised development as a whole, function in accordance with the plant design specifications and the undertaker's operational and safety requirements and the words “commission” and “commissioned” and cognate expressions are to be construed accordingly;

• “commitments register” means the plans which are certified as the access and rights of way plans by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “date of completion of construction” means the date on which the construction of the authorised development is complete including rectification of any construction defects, landscaping and reinstatement works;

• “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;

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

• “emergency” means a situation where, if the relevant action is not taken, there will be adverse health, safety, security or environmental consequences that, in the reasonable opinion of the undertaker, would outweigh the adverse effects to the public (whether individuals, classes or generally as the case may be) of taking that action;

• “the environmental statement” means the statement certified as the environmental statement by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “flood risk assessment” means the document certified as the flood risk assessment by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

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

• “framework biodiversity enhancement and management plan” means the plan which is certified as the framework biodiversity enhancement and management plan by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “framework construction environmental management plan” means the plan which is certified as the framework construction environmental management plan by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “framework construction traffic management plan” means the plan which is certified as the framework construction traffic management plan by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “framework construction worker travel plan” means the plan which is certified as the framework construction worker travel plan by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “framework written scheme of investigation” means the documents which are certified as the framework written scheme of investigation documents by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

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

• “indicative lighting strategy” means the documents which are certified as the indicative lighting strategy documents by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “land plans” means the plans which are certified as the land plans by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “limits of deviation” means in respect of numbered works 1, 2, 3, 4, 5 and 6 the outer limits of the corresponding numbered area shown on the works plan;

• “maintain” includes, inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part, but not the whole of, the authorised development provided that such activities are not likely to give rise to any significant adverse effects that have not been assessed in the environmental statement and “maintenance” and “maintaining” are to be construed accordingly;

• “National Grid” means National Grid Electricity Transmission plc (Company Registration Number 02366977) whose registered office is at 1 to 3 Strand, London, WE2N 5EH and/or National Grid Gas plc (Company Registration Number 02006000) whose registered office is at 1 to 3 Strand, London WC2N 5EH as the context requires;

• “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 coloured pink, blue, yellow and orange on the land plans and described in the book of reference;

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

• “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 the local planning authority for the land in question, being North Lincolnshire Council, or any successor to it as planning authority;

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

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

• “statement to inform appropriate assessment” means statement to inform appropriate assessment which are certified as by the Secretary of State under article 39 (certification of plans etc.) for the purposes of this Order;

• “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;

• “supplemental 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 coloured orange on the land plans and described in the book of reference;

• “traffic authority” has the same meaning as in section 121A (traffic authorities) of the 1984 Act;

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

• “undertaker” means VPI Immingham B Limited or the person who for the time being has the benefit of this Order in accordance with articles 6 (benefit of this Order) and 7 (consent to transfer benefit of the Order);

• “VPI Immingham B Limited” means VPI Immingham B Limited (Company number 10630563) whose registered office is at 4th Floor, Nova South, 160 Victoria Street, London, England, SW1E 5LB;

• “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 of that description set out in Schedule 11.

• (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 airspace above its surface and to any trusts or incidents (including restrictive covenants) to which the land is subject and references in this Order to the creation or acquisition of new rights include the imposition of restrictive covenants which interfere with interests or rights of another and are for the benefit of land which is acquired under this Order or is otherwise comprised in the 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 access and rights of way 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 (authorised development) and shown on the works plans.

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

• (7) References in this Order to plots are references to the plots shown on the land plans and described in the book of reference.

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by this 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 must be situated within the corresponding numbered area shown on the works plans and within the limits of deviation shown for each work number on the works plans.

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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Subject to article 7 (consent to transfer benefit of this Order), the provisions of this Order have effect solely for the benefit of VPI Immingham B Limited save for Work No. 5, for which the provisions of this Order have effect for the benefit of VPI Immingham B Limited and National Grid.

Consent to transfer benefit of this 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, 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 (licences authorising supply, etc.) of the Electricity Act 1989 or section 7 (licensing of public gas transporters) of the Gas Act 1986 ; or

• (ii) in relation to a transfer or a 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 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 and National Grid in writing before transferring or granting a benefit referred to in paragraph (1).

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

• (a) the name and contact details of the person to whom the benefit of the powers are to be transferred or granted;

• (b) subject to paragraph (9), the date on which the transfer is expected to take effect;

• (c) the powers to be transferred or granted;

• (d) pursuant to paragraph (3), the restrictions, liabilities and obligations that are to apply to the person exercising the powers transferred or granted; and

• (e) where relevant, a plan showing the works or areas to which the transfer or grant relates.

• (7) The undertaker must notify National Grid on seeking the consent of the Secretary of State referred to in paragraph (4).

• (8) The notification referred to in paragraph (7) must comply with the requirements in paragraph (6).

• (9) The date specified under paragraph (6)(b) must not be earlier than the expiry of five working days from the date of the receipt of the notice.