The Thurrock Flexible Generation Plant Development Consent Order 2022

• (4) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.

PART 6 — OPERATIONS

Felling or lopping of trees and removal of hedgerows

35

• (1) The undertaker may fell or lop any tree or shrub, or cut back its roots, within or overhanging land within the Order limits if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

• (a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

• (b) from constituting a danger to persons using the authorised development.

• (2) In carrying out any activity authorised by paragraph (1), the undertaker must—

• (a) do no unnecessary damage to any tree or shrub; and

• (b) pay compensation to any person for any loss or damage arising from such activity.

• (3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

• (4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits that is required to be removed.

• (5) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997⁴⁴.

PART 7 — MISCELLANEOUS AND GENERAL

Protective provisions

36

Schedule 8 (protective provisions) has effect.

Operational land for the purposes of the 1990 Act

37

Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as not being operational land) of the 1990 Act.

Certification of plans, etc.

38

• (1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

• (a) the land plans and special category land plans (consisting of a key plan and sheets 1 to 5 inclusive) as approved by the Secretary of State under requirement 30;

• (b) the works plans (document number A2.3);

• (c) the illustrative cross section plans (document number A2.8);

• (d) the illustrative landscape plan (document number A2.9);

• (e) the conceptual drainage strategy (document number A7.3);

• (f) the book of reference as approved by the Secretary of State under requirement 30;

• (g) the environmental statement (document number A6.0);

• (h) the design principles statement (document number A8.4);

• (i) the outline code of construction practice (document number A8.6);

• (j) the outline ecological management plan (document number A8.7);

• (k) the outline construction traffic management plan (document number A8.8);

• (l) the outline construction worker travel plan (document number A8.9);

• (m) the outline written scheme of archaeological investigation (document number A8.11);

• (n) the outline employment and skills strategy (document number A8.13); and

• (o) any other plans or documents referred to in this Order as requiring certification,

for certification that they are true copies of the documents referred to in this Order.

• (2) A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

39

• (1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

• (a) by post;

• (b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

• (c) with the consent of the recipient and subject to paragraphs (5) to (8) by electronic transmission.

• (2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

• (3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978⁴⁵ as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

• (a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

• (b) in any other case, the last known address of that person at the time of service.

• (4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

• (a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

• (b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

• (5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

• (a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

• (b) the notice or document is capable of being accessed by the recipient;

• (c) the notice or document is legible in all material respects; and

• (d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

• (6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

• (7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

• (8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

• (a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

• (b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

• (9) This article does not exclude the employment of any method of service not expressly provided for by it.

• (10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

No double recovery

40

Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.

Application of landlord and tenant law

41

• (1) This article applies to any agreement entered into by the undertaker under article 8 (consent to transfer of benefit of Order) so far as it relates to the terms on which any land is subject to a lease granted by or under that agreement.

• (2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

• (3) No enactment or rule of law to which paragraph (2) applies is to apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

• (a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

• (b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

• (c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Arbitration

42

• (1) Except where otherwise expressly provided for in this Order and unless otherwise agreed in writing between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State.

• (2) Any matter for which the consent or approval of the Secretary of State is required under any provision of this Order shall not be subject to arbitration.

SCHEDULE 1 — AUTHORISED DEVELOPMENT

In the administrative area of Thurrock Borough Council

The construction, operation and maintenance of a nationally significant infrastructure project as defined in sections 14(1)(a) and 15 of the 2008 Act, comprising—

Work no. 1 – An electricity generating station and battery storage facility comprising—

1A – Gas fired electricity generating station with a gross rated electrical output of up to 620 MW consisting of—

• (a) engine house building(s);

• (b) up to 96 gas reciprocating engines;

• (c) up to 48 exhaust stacks;

• (d) up to 48 gas engine exhaust energy recovery systems;

• (e) cooling system;

• (f) air pollutant control system;

• (g) lubricating oil and air pollutant control system reagent storage;

• (h) a gas pre-heat, metering and pressure reduction compound; and

1B – Battery storage facility having a combination of net rated electrical output and duration that delivers an electrical capacity of up to 600MWh, which may comprise—

• (i) a net rated electrical output of 150MW for up to 4 hours

• (ii) a net rated electrical output of 240MW for up to 2 hours and 30 minutes;

• (iii) a net rated electrical output of 300MW for up to 2 hours;

• (iv) a net rated electrical output of 400MW for up to 1 hour and 30 minutes; or

• (v) a net rated electrical output of 600MW for up to 1 hour; and which consists of;

• (a) storage battery houses or containers;

• (b) storage inverter containers;

• (c) cooling system; and

1C – Facilities to serve both 1A and 1B consisting of—

• (a) electrical equipment comprising 132 kV and 275 kV substations and electrical cables, switch houses and switch rooms, and auxiliary transformers;

• (b) fire suppression system and firewater tank;

• (c) operations, maintenance and storage buildings;

• (d) control room(s);

• (e) septic tank or packaged foul treatment plant;

• (f) internal roads and parking;

• (g) surface water drainage;

• (h) surface water runoff attenuation pond(s); and

• (i) landscaping.

Together with associated development within the meaning of section 115(2) of the 2008 Act—

Work no. 2 – Creation and enhancement of onshore wildlife habitat including topsoil strip, planting, construction of ditches, mounds and banks, and enhancement of retained ditches for ecological benefit; and connection of retained ditches to Work no. 1C(r) surface water drainage.

Work no. 3 – An electrical connection to Tilbury Substation comprising—

3A – 275 kV high-voltage underground cables for electricity export and lower voltage underground cables for auxiliary power supply; and

3B – Connection equipment in Tilbury Substation consisting of—

• (a) civil works – equipment bases, cable trenching, fencing;

• (b) electrical equipment installation – current transformers, voltage transformers, high accuracy metering equipment, circuit breakers, disconnectors and emergency shutoff;

• (c) cable sealing end (where underground high voltage transmission cables join to existing overhead transmission cable) including, base, structure and terminations;

• (d) blockhouse (switch room); and

• (e) control and protection modifications for the re-equipped bay and integration to the site wide systems, including busbar protection.

Work no. 4 – An underground high-pressure gas pipeline between Work no. 1 and Work no. 5A and gas pipeline(s) within Work no. 1.

Work no. 5 – A connection point to the gas National Transmission System comprising—

5A – A gas connection compound with landscaping consisting of—

• (a) a National Grid Minimum Offtake Connection facility containing remotely operable valve, control and instrumentation kiosk, and electrical supply kiosk;

• (b) a Pipeline Inspection Gauge Trap Facility containing pipeline inspection gauge launching facility, emergency control valve, isolation valve, control and instrumentation kiosk, and electrical supply kiosk; and

5B – If required by the siting of Work no. 5A, a high-pressure underground gas pipeline between Work no. 5A(a) and the gas National Transmission System; and

5C – An access track and junction from Station Road with drainage and landscaping.

Work no. 6 – An access road and junction from Station Road with drainage and landscaping.

Work no. 7 – A water supply connection to the water main at Station Road.

Work no. 8 – Construction compound(s) and laydown area(s) south of Tilbury Loop railway.

Work no. 9 – Not used.

Work no. 10 – Not used

Work no. 11 – Not used.

Work no. 12 – An access road from the A1089 St Andrew’s Road comprising—

• (a) improvements, repairs, widening, realignment and surfacing of existing private roads, verges and hardstanding areas, to make the route suitable for use by heavy goods vehicles;

and connecting to 12(a)—

• (b) not used;

• (c) engineering works and construction of new road sections with drainage and landscaping;

• (d) engineering works and construction of new road sections with drainage and landscaping; and

• (e) engineering works and construction of new road section with alterations to ditch and electrical service boxes.

Work no. 13 – A footbridge, ground works and fencing for a permissive path between Fort Road and Work no. 14.

Work no. 14 – Creation of approximately 115,775m² of common land with planting and landscaping.

Work no. 15 - An access road and junction from Fort Road to the Port of Tilbury access road, comprising engineering works and construction of new road with gates, fencing and alterations to drainage, landscape planting and alteration of services.

In connection with the construction of any of those works comprising the Nationally Significant Infrastructure Project or associated development to the extent that they do not otherwise form part of any such work, further development within the Order limits consisting of—

• (a) retaining walls, embankments, barriers, parapets, drainage, fencing, culverts and lighting;

• (b) site clearance (including fencing and demolition of existing structures), earthworks (including soil stripping and storage, site levelling) and remediation of contamination if present;

• (c) works to alter the position of apparatus at or below ground level including mains, sewers, drains and cables and also including below ground structures associated with that apparatus;

• (d) construction compounds and working sites, storage areas, temporary vehicle parking, ramps and other means of access, internal roads and tracks, perimeter enclosures, security fencing, construction-related buildings, welfare facilities, construction lighting, haulage roads and other buildings, machinery, apparatus, works and conveniences including provision of services and utilities;

• (e) landscaping, planting, tree planting and erection of permanent means of enclosure and boundary facilities including fences and gates, alteration of drains and ditches;

• (f) alteration of layout of streets to form temporary and permanent accesses, altering the level of any kerb, footway or verge within a street and surface treatments;

• (g) diversions during construction of existing access routes and subsequent reinstatement of existing routes; and

• (h) such other works, working sites, storage areas and works of demolition, as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the authorised development but only insofar as they do not give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

SCHEDULE 2 — REQUIREMENTS

PART 1 — REQUIREMENTS

Interpretation

1

In this Schedule—

• “AOD” means above Ordnance Datum;

• “CCR area” means the area reserved for carbon capture readiness as shown on the work plans;

• “commissioning” means the process during which plant components and systems forming part of the authorised development, having been constructed or modified, are made operational and are tested and verified to be in accordance with design assumptions and to have met the appropriate safety criteria;

• “contaminated land” has the same meaning as that given in section 78A of the Environmental Protection Act 1990⁴⁶;

• “discharging authority” means any body responsible for giving any consent, agreement or approval required by a requirement included in Part 1 of this Schedule, or for giving any consent, agreement or approval further to any document referred to in any such requirement;

• “LEMP” means the Landscape and Ecological Management Plan;

• “Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London, NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006)⁴⁷ the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

• “Network Rail property” means any railway belonging to Network Rail within the Order limits and— any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment; and

• “requirement consultee” means any body named in a requirement as a body to be consulted by the discharging authority in discharging that requirement.

Time limit

2

The authorised development must not commence later than the expiration of 5 years beginning with the date on which this Order comes into force.

Notice of commencement of authorised development

3

Notice of commencement of the authorised development must be given to the relevant planning authority within 7 days of the date on which the authorised development is commenced.

Detailed design

4

• (1) No part of the authorised development can commence until written details of the following for that part have been submitted to and approved by the relevant planning authority specifying—

• (a) the siting, design, external appearance, dimensions and floor levels of all permanent buildings and structures;

• (b) the colour, materials and surface finishes of all permanent buildings and structures; and

• (c) details of the provision made for cycle parking facilities for staff.

• (2) The details to be submitted for approval under sub-paragraph 9(1) must—

• (a) be in accordance with the design principles statement;

• (b) include flood resistance and resilience measures for a flood level of up to 2.84m above Ordnance Survey datum for critical equipment; and

• (c) include appropriately scaled plans and sectional drawings.

• (3) No works creating or affecting culverts in ordinary watercourses or the balancing pond east of Fort Road may be commenced unless the detail of such works has been approved by the relevant planning authority in consultation with Thurrock Council in its capacity as the lead local flood authority.

• (4) In so far as the details submitted under paragraph (1) relate to Work no. 4, the relevant planning authority must consult Highways England on those details prior to issuing any approval under that paragraph.

• (5) The authorised development must be designed in accordance with the parameters specified in Table 1 below and the works plans and constructed in accordance with approved plans and any other approvals given by the relevant planning authority pursuant to this requirement.

Parameter	Work no.s	Maximum value(s) and unit
Gas engine exhaust stack height	1A(c)	43m AOD
Gas engine building(s) or equipment dimensions (in total)	1A(a, b, d, e, f)	Width: 135m Length: 265m Height: 20m
Battery building(s) or containers dimensions (in total)	1B	Width: 106m Length: 106m Height: 10m
Customer substation equipment height	1C(l)	15m
Height of all equipment and structures within Work 1 not otherwise specified	1	10m
National grid gas connection compound dimensions	5A	Width: 50m Length: 50m Height: 5m
Gas pipeline(s) maximum excavation depth	4	4m for trenched or 5m below base of feature crossed for trenchless construction
Underground cable(s) maximum depth	3A	4 m for trenched or 5 m below base of feature crossed for trenchless construction
Road construction working corridor width	6	20 m
Gas pipeline construction working corridor width	4	23 m
CCR minimum area	n/a	32,100 m²
Footbridge to replacement common land	13	Must be a clear span structure

• (6) The buildings and structures identified in Table 1 must only be constructed within the area for the work of which they form part as shown in the works plans.

• (7) The details submitted for Work no.12 under sub-paragraph (1) may only include details for either Work no.12(c) or Work no.12(d), and must specify which of Work no. 12(c) or Work no.12(d) is to be developed.

• (8) In so far as the details submitted under paragraph (1) relate to Work nos. 4, 6 and 7, the relevant planning authority must consult Network Rail on those details where the relevant works may impact Network Rail property and ensure:

• (a) in respect of Work no. 4, any part of that work is situated over 200 metres from Network Rail property;

• (b) in respect of Work no. 6, any part of that work is situated over 15 metres from Network Rail property; and

• (c) in respect of Work no. 7, any part of that work is situated over 15 metres from Network Rail property.

Code of construction practice

5

• (1) No part of the authorised development can commence until a code of construction practice for that part has been submitted to and approved by the relevant planning authority.

• (2) The code of construction practice must be substantially in accordance with the outline code of construction practice and—

• (a) include relevant measures relied on in the environmental statement; and

• (b) include management plans, working methods and mitigation measures including—

• (i) details of lighting during construction;

• (ii) pollution incident control plan;

• (iii) soil management strategy; and

• (iv) dust management and monitoring plan.

• (3) Construction of the authorised development must be carried out in accordance with the approved code of construction practice.

Construction traffic management plan

6

• (1) No part of the authorised development can commence until a construction traffic management plan for that part has been submitted to and approved by the relevant planning authority in consultation with the highway authority, Highways England, Network Rail, Port of Tilbury London Limited and Royal Mail.

• (2) The construction traffic management plan must—

• (a) specify measures to manage the impacts of construction traffic during the construction works; and

• (b) be substantially in accordance with the outline construction traffic management plan.

• (3) Construction works for the authorised development must be carried out in accordance with the approved construction traffic management plan for that part.

Construction worker travel plan

7

• (1) No part of the authorised development can commence until a construction worker travel plan for that part has been submitted to and approved by the relevant planning authority in consultation with the highway authority, Highways England, Network Rail and Port of Tilbury London Limited.

• (2) The construction worker travel plan must be substantially in accordance with the outline construction worker travel plan.

• (3) Construction works for the authorised development must be carried out in accordance with the approved construction worker travel plan for that part.

External lighting

8

• (1) No part of the authorised development where use of artificial lighting is proposed in operation can be externally lit between 18:00 and 07:00 until a scheme for the management and mitigation of artificial light emissions during the operation of that part of the authorised development has been submitted to and approved by the relevant planning authority.

• (2) The scheme approved under sub-paragraph (1) must be implemented and maintained as approved during the operational phase.

Construction hours

9

• (1) Subject to sub-paragraph (2), no construction works are to take place except between—

• (a) 08:00 to 18:00 Monday to Friday; and

• (b) 08:00 to 13:00 on Saturday;

unless otherwise agreed by the relevant planning authority.

• (2) The following works are permitted outside the hours referred to in sub-paragraph (1)—

• (a) works that cannot be interrupted or emergency works; and

• (b) works which do not cause noise that is more than 5dB above the pre-construction ambient noise at the nearest residential property to the Order limits, subject to lower cut-off values of 65dB, 55dB and 45dB LAeqT from site noise alone, for the daytime, evening and night-time periods, respectively, determined in accordance with Annex E of BS 5228-1:2009+A1:2014.

• (3) Any emergency works carried out under sub-paragraph (2)(a) must be notified to the relevant planning authority within 72 hours of their commencement.

Surface and foul water drainage

10

• (1) No part of the authorised development can commence until written details for that part have been submitted to and approved by the relevant planning authority.

• (2) The details submitted under sub-paragraph (1) must include—

• (a) the means of pollution control;

• (b) connection points to existing drainage network with consideration to directing drainage away from the West Tilbury Main catchment; and

• (c) ground raising and effects on the routing of flood waters.

• (3) The details submitted under sub-paragraph (1) must be in accordance with the conceptual drainage strategy certified under article 38.

• (4) The surface and foul water drainage system for the relevant part of the authorised development must be constructed and maintained in accordance with the approved details unless otherwise agreed in writing by the relevant planning authority.

Flood evacuation plan

11

• (1) The undertaker must, prior to the commencement of the authorised development, put in place a flood evacuation plan for the authorised development. The flood evacuation plan must be maintained and kept up to date throughout the operational life of the authorised development and be made available for inspection by all users of the site and displayed in a visible location at all times.

• (2) A copy of the flood evacuation plan must be provided to the relevant planning authority or Thurrock Council acting as lead local flood authority on request.

Contaminated land

12

• (1) If contaminated land is found during permitted preliminary works or construction of the authorised development, no further development can be carried out in the affected area until an investigation and remediation scheme has been submitted to and approved by the relevant planning authority; and the scheme must include details of—

• (a) how the contaminated land is to be identified and assessed;

• (b) where remediation is required by the scheme, the remediation measures;

• (c) timescales for carrying out the remediation measures; and

• (d) any ongoing monitoring or mitigation requirements.

• (2) Any remediation measures, monitoring or mitigation requirements identified in the investigation and remediation scheme mentioned in sub-paragraph (1) must be carried out in accordance with the approved scheme.

Archaeology

13

• (1) No part of the authorised development with the potential to affect buried archaeological assets can commence until for that part a written scheme of archaeological investigation of areas of archaeological interest has been submitted to and approved by the relevant planning authority following consultation with Historic England.

• (2) The scheme approved under sub-paragraph (1) must be substantially in accordance with the outline written scheme of archaeological investigation, and identify the measures to be taken to investigate, protect, record or preserve any significant archaeological remains that may be found.

• (3) Any archaeological works carried out under the approved scheme must be carried out by an organisation registered with the Chartered Institute for Archaeologists or by a member of that Institute.

• (4) Any archaeological works must be carried out in accordance with the approved scheme.

Landscaping and ecological management plan

14

• (1) No part of the authorised development can commence until a LEMP for that part, substantially in accordance with the outline ecological management plan and illustrative landscape plan, including—

• (a) where necessary, measures to protect water voles;

• (b) ecological mitigation and enhancement measures;

• (c) details of all proposed soft landscaping works, including location, number, species, size and planting density of any proposed planting;

• (d) proposed finished ground levels;

• (e) details of existing trees to be retained, with measures for their protection during the construction period;

• (f) implementation timetables for all ecological and landscaping works; and

• (g) maintenance proposals,

has been submitted to and approved by the relevant planning authority in consultation with Natural England.

• (2) The authorised development, including maintenance, must be carried out in accordance with the approved LEMP and to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.

Construction compound restoration

15

• (1) Prior to the completion of construction of Work no.1, the undertaker must submit a plan to the relevant planning authority for approval detailing how all of the construction compound areas which do not form part of the permanent works will be restored, including—

• (a) details of the use and condition of the land before it was used as a construction compound;

• (b) proposed finished ground levels;

• (c) details of any soft landscaping works to be undertaken as part of the restoration;

• (d) details of any hard landscaping to be undertaken as part of the restoration including paving, surfacing, gates and fencing; and

• (e) implementation timetables for the restoration works.

• (2) The restoration of the construction compounds must be carried out in accordance with the approved plan.

Operational noise

16

• (1) Between 23.00 and 07.00 hours, noise arising from normal operation of the site may not exceed a rating level of 45 dB LAr,Tr at any residential property which is lawfully inhabited at the date of the making of this Order.

• (2) The level set out in sub-paragraph (1) is to be as measured in accordance with British Standard 4142:2014+A1:2019 (Methods for rating and assessing industrial and commercial sound) and British Standard 7445-3:1991 (Description and measurement of environmental noise. Guide to application to noise limits) or any standards replacing those.

• (3) Prior to the commencement of the authorised development, the undertaker must submit a plan to the relevant planning authority for approval detailing how noise monitoring will be undertaken during construction and within a six month period beginning with the date of first commercial export of electricity from Work no. 1A. That plan must specify a monitoring location point, which must be in as close proximity as the undertaker can lawfully access, or at a point representative of, the nearest residential property which is lawfully inhabited at the date of the making of this Order.

• (4) Noise monitoring must be undertaken by the undertaker in accordance with the plan approved under sub-paragraph (3); and the results of this monitoring must be submitted by the undertaker to the relevant planning authority at the intervals set out in the plan.

• (5) Where the results of the monitoring undertaken in accordance with sub-paragraphs (3) and (4), show any exceedance of the level set out in sub-paragraph (1), the undertaker must, within 10 working days, submit to the relevant planning authority for approval a mitigation plan detailing how the exceedance will be mitigated and including a timetable for carrying out any works required to deliver such mitigation.

• (6) The undertaker must comply with any plan approved under sub-paragraph (5).

Local employment and skills strategy

17

No part of the authorised development can commence until a local employment and skills strategy, substantially in accordance with the outline local employment and skills strategy has been submitted to and approved by the relevant planning authority.

Operational hours

18

Work no.1A (the gas fired electricity generating station) may only be operated for the purposes of generating electricity up to a maximum of 4,000 hours per calendar year.

Details to accord with Environmental Statement

19

Any plans, details, schemes or other documents which require approval by the discharging authority pursuant to any requirement must comply with the parameters set out in the Environmental Statement and, where applicable, the outline plans certified under article 38.

Carbon capture readiness

20

Until such time as the authorised development is decommissioned, the undertaker must not, without the consent of the Secretary of State—

• (a) dispose of any interest in the CCR area; or

• (b) do anything, or allow anything to be done or to occur,

which may reasonably be expected to diminish the undertaker’s ability, within two years of such action or occurrence, to prepare the carbon capture readiness land for the installation and operation of carbon capture equipment, should it be deemed necessary to do so.

Carbon capture readiness monitoring report

21

• (1) The undertaker must make a report (‘carbon capture readiness monitoring report’) to the Secretary of State—

• (a) no later than three months from the date of first commercial operation of Work no.1A (or any first phase thereof); and

• (b) within one month of the third anniversary, and each subsequent three year anniversary, of that date.

• (2) Each carbon capture readiness monitoring report must provide evidence that the undertaker has complied with requirement 20—

• (a) in the case of the first carbon capture readiness monitoring report, since commencement of the authorised development; and

• (b) in the case of any subsequent report, since the making of the previous carbon capture readiness monitoring report, and explain how the undertaker expects to continue to comply with requirement 20 over the next three years.

• (3) Each carbon capture readiness monitoring report must state whether the undertaker considers the retrofit of carbon capture technology is feasible explaining the reasons for any such conclusion and whether any impediments could be overcome.

• (4) Each carbon capture readiness monitoring report must state, with reasons, whether the undertaker has decided to seek any additional regulatory clearances, or to modify any existing regulatory clearances, in respect of any carbon capture readiness proposals.

Amendments to approved plans, etc.

22

• (1) With respect to any plans, details, schemes or other documents which require approval by the discharging authority pursuant to any requirement (the “approved plans”), the undertaker may submit to the discharging authority for approval any amendments to the approved plans and following any such approval by the discharging authority the approved plans are to be taken to include the amendments approved pursuant to this sub-paragraph.

• (2) Approval under sub-paragraph (1) must not be given except where it has been demonstrated to the satisfaction of the discharging authority that the subject-matter of the approval sought does not give rise to any materially new or materially different environmental effects to those identified in the environmental statement.

Anticipatory steps

23

If before this Order comes into force the undertaker or any other person has taken any step in compliance with any requirement in Part 1 of this Schedule, that step may be taken into account to determine compliance with that requirement provided that step would have been a valid step for the purpose of the requirement if it had been taken after this Order came into force.

Submissions and approvals

24

• (1) Where, under any requirement, approval of any plans, details, schemes or other documents is required, the plan, details, scheme or other documents submitted for approval must be in writing.

• (2) Where under any requirement the approval or agreement of the discharging authority or another person is required, that approval or agreement must be provided in writing.

• (3) A copy of any approval or amendment to an approval issued under these requirements by a discharging authority other than the relevant planning authority must be copied to the relevant planning authority at the same time as it is issued to the undertaker.

PART 2 — APPROVAL OF MATTERS SPECIFIED IN REQUIREMENTS

Applications made under requirements

25

Where an application has been made to the discharging authority for any agreement or approval required pursuant to a requirement included in this Order, the discharging authority must give notice to the undertaker of their decision, including the reasons, on the application, within a period of 13 weeks beginning with—

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

• (b) such longer period as may be agreed by the undertaker and the discharging authority.

Further information

26

• (1) Where an application has been made under paragraph 25 the discharging authority has the right to request such reasonable further information from the undertaker as is necessary to enable it to consider the application.

• (2) If the discharging authority considers further information is needed, and the requirement does not specify that consultation with a requirement consultee is required, it must, within 21 days of receipt of the application, notify the undertaker in writing specifying the further information required.

• (3) If the requirement indicates that consultation must take place with a consultee the discharging authority must issue the consultation to the requirement consultee within 5 working days of receipt of the application. Where the consultee requires further information they must notify the discharging authority in writing specifying the further information required within 21 days of receipt of the consultation. The discharging authority must notify the undertaker in writing specifying any further information requested by the consultee within 5 working days of receipt of such a request.

• (4) In the event that the discharging authority does not give such notification as specified in sub-paragraph (2) or (3) it is deemed to have sufficient information to consider the application and is not thereafter entitled to request further information without the prior agreement of the undertaker.

Provision of information by Consultees

27

• (1) Any consultee who receives a consultation under paragraph 26(3) must respond to that request within 28 days from receipt unless sub paragraph (2) of this paragraph applies.

• (2) Where any consultee requests further information in accordance with the timescales set out in paragraph 26(3) then they must respond to the consultation within 10 working days from the receipt of the further information requested.

Fees

28

• (1) Where an application is made to the discharging authority for agreement or approval in respect of a requirement the fee for the discharge of conditions as specified in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012⁴⁸ (or any regulations replacing the same) is to be paid by the undertaker to the discharging authority in accordance with these regulations.

• (2) Any fee paid under this Schedule must be refunded to the undertaker within 4 weeks of the application being rejected as invalidly made.

Appeal

29

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

• (a) the discharging authority refuses an application for any consent, agreement or approval required by a requirement included in this Order or grants it subject to conditions; or

• (b) the discharging authority does not give notice of its decision to the undertaker within the time period specified in paragraph 25.

• (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 planning authority and any consultee required to be consulted pursuant to the requirement which is the subject of the appeal (together with the undertaker, these are the “appeal parties”);

• (b) as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person (“the appointed person”) to determine the appeal and must notify the appeal parties of the identity of the appointed person and the address to which all correspondence for their attention should be sent, the date of such notification being the “start date” for the purposes of this sub-paragraph (2);

• (c) the relevant planning authority and any consultee required to be consulted pursuant to the requirement which is the subject of the appeal must submit written representations to the appointed person in respect of the appeal within ten working days of the start date 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 ten working days of receipt of written representations pursuant to sub-paragraph (2)(c); and

• (e) the appointed person must make their decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within thirty working days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (2)(d).

• (3) The appointment of the person pursuant to sub-paragraph (2)(b) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

• (4) In the event that the appointed person considers that further information is necessary to consider the appeal, the appointed person must notify the appeal parties in writing specifying the further information required and the date by which the information is to be submitted and the appointed person must make any notification and set the date for the receipt of such further information having regard to the timescales in sub-paragraph (2).

• (5) Any further information required under sub-paragraph (4) must be provided by the appeal party from whom the further information was requested to the appointed person and other appeal parties, the relevant planning authority and any consultee required to be consulted pursuant to the requirement the subject of the appeal 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 ten working days of the specified date but otherwise is to be in accordance with the process and time limits set out in sub-paragraphs (2)(c) to (2)(e).

• (6) On an appeal under this sub-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).

• (7) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the relevant time limits.

• (8) 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 the appointed person that there is sufficient material to enable a decision to be made on the merits of the case and may deal with the application as if it had been made to the appointed person in the first instance.

• (9) 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.

• (10) If an approval is given by the appointed person pursuant to this article, it is to be deemed to be an approval for the purpose of Schedule 2 as if it had been given by the relevant planning authority. 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) is not to be taken to affect or invalidate the effect of the appointed person’s determination.

• (11) Save where a direction is given pursuant to sub-paragraph (12) requiring the costs of the appointed person to be paid by the relevant planning authority, the reasonable costs of the appointed person must be met by the undertaker.

• (12) 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. 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.

Documents

30

• (1) The undertaker must amend the land plans and special category land plans (document number A2.2) and the book of reference (document number A4.3) in order to—

• (a) on the land plans and special category land plans, remove the colouring of plots in ownership of the Port of Tilbury London Limited and RWE; and

• (b) in the book of reference delete the plots in the ownership of the Port of Tilbury London Limited and RWE.

• (2) Under paragraph (1), the plots concerned are—

• (a) plots in ownership of the Port of Tilbury London Limited: 01/04, 01/33, 01/35, 01/36, 05/01, 05/02, 05/03, 05/04 and 05/07; and

• (b) plots in ownership of RWE: 01/04, 01/11, 01/19, 01/20, 01/21, 01/22, 01/28, 01/30, 01/31, 01/32, 01/34 01/37, 04/01, 04/03 and 04/05.

• (3) The undertaker must submit the land plans and special category land plans and the book of reference, as amended, to the Secretary of State for approval.

• (4) The undertaker must not commence work under this Order, or exercise any powers under the Order, until the Secretary of State has given such approval.

SCHEDULE 3 — TRAFFIC REGULATION SUSPENSION OF EXISTING TRAFFIC REGULATION ORDERS

(1) Area	(2) Road name	(3) Title of Order	(4) Extent of suspension
Thurrock Borough	Station Road	The Borough of Thurrock (Station Road (Love Lane to Princess Margaret Road) East Tilbury) (Weight Restriction) Order 1995.	Suspended between Love Lane and Princess Margaret Road.

SCHEDULE 4 — HIGHWAYS SUBJECT TO TEMPORARY CONTROL OR RESTRICTION

(1) Area	(2) Public right of way	(3) Control or Restriction
Thurrock Borough	Station Road within the two areas shown hatched in red on sheet 3 of the access, rights of way and traffic management plans.	Controls on use including marshalling during construction to allow crossing of the highway for construction access. Temporary restriction on all use for up to two weeks at each location, concurrently or consecutively.
Thurrock Borough	Station Road within the area shown hatched in dark green on sheet 3 of the access, rights of way and traffic management plans.	Controls on use including temporary restrictions on use and partial carriageway closures with traffic management to allow construction of new accesses.
Thurrock Borough	Footpath through common land connecting Footpath 200 at the location shown hatched in green on sheet 3 of the access, rights of way and traffic management plans.	Controls on use the footpath where it crosses the pipeline route including marshalling during construction and operation to allow installation and maintenance of a gas pipeline. Temporary restriction on all use and diversion during construction.

SCHEDULE 5 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN AND IN WHICH ONLY RIGHTS ETC MAY BE ACQUIRED

(1) Plot reference number shown on land plans	(2) Rights over land which may be acquired	(3) Relevant part of the authorised development for which temporary possession for construction can be taken
Land Plans – Sheet 1	Land Plans – Sheet 1	Land Plans – Sheet 1
01/09	Right to install, use, protect, retain, inspect, maintain, repair and replace electrical cables and associated infrastructure and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of electrical cables and associated infrastructure installed in the land.	Work no.3
01/10	Right to install, use, protect, retain, inspect, maintain, repair and replace electrical cables and associated infrastructure and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of electrical cables and associated infrastructure installed in the land.	Work no.3
01/14	Right of access, including vehicular access, to create and maintain replacement common land.	Work no.14
01/15	Right to install, use, protect, retain, inspect, maintain, repair and replace electrical cables and associated infrastructure and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of electrical cables and associated infrastructure installed in the land.	Work no.3
01/25	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work nos.4 and 8
Land Plans – Sheet 2	Land Plans – Sheet 2	Land Plans – Sheet 2
02/01	Right of access, including vehicular access, to create and maintain habitat creation and enhancement land.	Work no.2
02/02	Right of access, including vehicular access, to create and maintain habitat creation and enhancement land.	Work no.2
02/04	Right of access, including vehicular access, to create and maintain replacement common land.	Work no.14
02/08	Right of access, including vehicular access, to create and maintain replacement common land.	Work no.14
02/09	Right of access, including vehicular access, to create and maintain replacement common land.	Work no.14
02/10	Right of access, including vehicular access, to create and maintain replacement common land and habitat creation and enhancement land, and to use, repair, improve or alter existing accesses, tracks, roads or ways.	Work nos.2 and 14
02/11	Right of access, including vehicular access, to create and maintain replacement common land and habitat creation and enhancement land, and to use, repair, improve or alter existing accesses, tracks, roads or ways.	Work nos.2 and 14
02/13	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work nos.4 and 8
Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3
03/01	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work nos.4 and 8
03/02	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/03	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/04	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/05	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/06	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/08	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4
03/09	Right to install, use, protect, retain, inspect, maintain, repair and replace a gas pipeline and associated infrastructure, and to take vehicular access for the same. Imposition of a restrictive covenant for the protection of gas pipeline and associated infrastructure installed in the land.	Work no.4

SCHEDULE 6 — LAND OF WHICH ONLY TEMPORARY POSSESION MAY BE TAKEN

(1) Location	(2) Plot Reference Number shown on land plans	(3) Purpose for which temporary possession may be taken	(4) Relevant part of the authorised development
Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3	Land Plans – Sheet 3
Road forming public highway and private road shown coloured yellow on the access, rights of way and traffic management plans	03/07	To allow a temporary diversion of a public right of way.	Work no.4
Station Road, Public Highway at Station Road, East Tilbury	03/10	To create a new access from the public highway including temporary partial closure of the highway and traffic management.	Work nos.4 and 5
Land Plans – Sheet 5	Land Plans – Sheet 5	Land Plans – Sheet 5	Land Plans – Sheet 5
Fort Road, public highway at Fort Road, Tilbury	05/06	To allow the creation of a new access from the public highway including temporary partial closure of the highway and traffic management.	Work no.15
Fort Road, public highway at Fort Road, Tilbury	05/08	To allow the creation of a new access from the public highway including temporary partial closure of the highway and traffic management.	Work no.15

SCHEDULE 7 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF RESTRICTIVE COVENANTS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation for the compulsory purchase of land and interests in land.

2

Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the following modification—

3

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973⁴⁹ has effect subject to the modifications set out in sub-paragraph (2).

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 4(3) of this Schedule—

• (a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and

• (b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.

Application of Part 1 of the 1965 Act

4

• (1) Part 1 of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act and modified by article 26 (application of Part 1 of the 1965 Act) to the acquisition of land under article 19 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 22 (compulsory acquisition of rights)—

• (a) with the modifications specified in sub-paragraph (2); and

• (b) with such other modifications as may be necessary.

• (2) The modifications referred to in sub-paragraph (1) are as follows: references in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—

• (a) the right acquired or to be acquired, or the restriction imposed or to be imposed; or

• (b) the land over which the right is or is to be exercisable, or the restriction is or is to be enforceable.

• (3) For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—

(7) In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

• (4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

• (d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

• (5) Section 11 (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restriction, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A⁵⁰ (powers of entry: further notices of entry), 11B⁵¹ (counter-notice requiring possession to be taken on specified date), 12 (unauthorised entry) and 13 (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

• (6) Section 20 (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

• (7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 26(2) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

• (8) For Schedule 2A of the 1965 Act substitute—

SCHEDULE 2A (1) (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 24 (application of the 1981 Act) of the Thurrock Flexible Generation Plant Development Consent Order 2022 in respect of the land to which the notice to treat relates. (2) But see article 25 (acquisition of subsoil only) of the Thurrock Flexible Generation Plant Development Consent Order 2022 which excludes the acquisition of subsoil only from this Schedule. (3) In this Schedule, “house” includes any park or garden belonging to a house. (2) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory. (3) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (4) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat; (b) accept the counter-notice; or (c) refer the counter-notice to the Upper Tribunal. (5) The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (6) If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period. (7) If the authority do not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (8) If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (9) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory; or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (10) In making the determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant; (b) the use to be made of the right or covenant proposed to be acquired or imposed; and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (11) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 9, it must determine how much of the house, building or factory the acquiring authority ought to be required to take. (12) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (13) (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawing of the notice. (14) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 8 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS

1

For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

2

In this Part of this Schedule—

• “alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory duty in a manner not less efficient than previously;

• “apparatus” means—in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989⁵²), belonging to or maintained by that utility undertaker;in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986⁵³ for the purposes of gas supply;in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; andin the case of a sewerage undertaker—any drain or works vested in the utility undertaker under the Water Industry Act 1991⁵⁴; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewers, drains or sewage disposal works at future date) of that Act⁵⁵,and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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