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The Thurrock Flexible Generation Plant Development Consent Order 2022

Type Statutory-Instrument

Publication 2022-02-16

Last updated 2024-09-13

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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“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 1990[^f00046];

“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)[^f00047] 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

(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

(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

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

(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;

(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;

(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 2012[^f00048] (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 1973[^f00049] 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);

(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 11A[^f00050] (powers of entry: further notices of entry), 11B[^f00051] (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 1989[^f00052]), 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 1986[^f00053] 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 1991[^f00054]; 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 Act[^f00055],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;

“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed; and

“utility undertaker” means—any licence holder within the meaning of Part 1 of the Electricity Act 1989;a gas transporter within the meaning of Part 1 of the Gas Act 1986;a water undertaker within the meaning of Part 2 of the Water Industry Act 1991; anda sewerage undertaker within the meaning of Part 2 of the Water Industry Act 1991,for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

Land not affected by this Part

3

(1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

(2) This Part of this Schedule does not apply to any apparatus belonging to National Grid as defined in Part 4 of this Schedule.

Apparatus in restricted streets

4

Regardless of the temporary restriction of any highway under the powers conferred by article 13 (temporary restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Acquisition of land

5

Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

6

(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (7).

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

7

(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

8

(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.

(2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a utility undertaker under sub-paragraph (2) are to be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(4) If a utility undertaker, in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 5 to 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

(7) In relation to works which will or may be situated on, over, under or within 10 metres measured in any direction of any electricity apparatus, the plan to be submitted to the utility undertaker under sub-paragraph (1) must be detailed, include a method statement and describe—

(a) the exact position of the works;

(b) the level at which they are proposed to be constructed or renewed;

(d) the position of all electricity apparatus; and

(e) by way of detailed drawings, every alteration proposed to be made to such apparatus.

Expenses and costs

9

(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2).

(2) The value of any apparatus removed under the provisions of this Part of this Schedule must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 42(arbitration) to be necessary then, if such placing involves cost exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

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

(a) an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

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

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

10

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 6(1) or 6(2) any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and

(b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,

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

(2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.

(4) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker and, if such consent is withheld, the undertaker has the sole conduct of any settlement or compromise of any proceedings necessary to resist the claim or demand.

Cooperation

11

Where in consequence of the proposed construction of any part of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 6(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 8, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

12

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

Provision for Anglian Water Services Limited

13

Nothing in this Part of this Schedule applies to Anglian Water Services Limited.

PART 2 — FOR THE PROTECTION OF ANGLIAN WATER SERVICES LIMITED

1

For the protection of Anglian Water, the following provisions have effect, unless otherwise agreed in writing between the undertaker and Anglian Water.

2

In this Part—

“Anglian Water” means Anglian Water Services Limited (company number 02366656);

“apparatus” means any works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage andany drain works vested in Anglian Water under the Water Industry Act 1991;any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102 (4) of the Water Industry Act 1991 or an agreement to adopt made under section 104 of that Act, and includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any sewer, drain, or works (within the meaning of section 219 of that Act) and any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in not less efficient a manner than previously;

“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; and

“plan” includes sections, drawings, specifications and method statements.

3

The undertaker may not interfere with, build over or near to any apparatus within the Order limits or execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within the standard protection strips which are the strips of land falling the following distances to either side of the medial line of any relevant pipe or apparatus; 2.25 metres where the diameter of the pipe is less than 150 millimetres, 3 metres where the diameter of the pipe is between 150 and 450 millimetres and 6 metres where the diameter of the pipe exceeds 750 millimetres unless otherwise agreed in writing with Anglian Water, such agreement not to be unreasonably withheld or delayed, and such provision being brought to the attention of any agent or contractor responsible for carrying out any work on behalf of the undertaker.

4

The alteration, extension, removal or re-location of any apparatus may not be implemented until–—

(a) any requirement for any permits under the part 2 of the Environmental Permitting (England and Wales) Regulations 2016 or other legislation and any other associated consents are obtained, and any approval or agreement required from Anglian Water on alternative outfall locations as a result of such re-location are approved, such approvals from Anglian Water not to be unreasonably withheld or delayed; and

(b) the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Anglian Water has agreed all of the contractual documentation required under the Water Industry Act 1991, such agreement not to be unreasonably withheld or delayed; and such works to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

5

In the situation, where in exercise of the powers conferred by the Order, the undertaker acquired any interest in any land in which apparatus is placed and such apparatus is to be relocated, extended, removed or altered in any way no alteration or extension may take place until Anglian Water has established to its reasonable satisfaction, contingency arrangements in order to conduct its functions for the duration of the works to relocate, extend, remove or alter the apparatus.

6

Regardless of any provision in this Order or anything shown on any plan, the undertaker must not acquire any apparatus otherwise than by agreement, and before extinguishing any existing rights for Anglian Water to use, keep, inspect, renew and maintain its apparatus in the Order land, the undertaker will, with the agreement of Anglian Water, create a new right to use, keep, inspect, renew and maintain the apparatus that is reasonably convenient for Anglian Water such agreement not to be unreasonably withheld or delayed, and to be subject to arbitration under article 42(arbitration).

7

If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed the undertaker must provide such alternative means of access to such apparatus as will enable Anglian Water to maintain or use the apparatus no less effectively than was possible before such obstruction.

8

If in consequence of the exercise of the powers conferred by this Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets will immediately be given to Anglian Water and afforded the same protection of other Anglian Water assets.

9

If for any reason or in consequence of the construction of any of the works referred to in paragraphs (4) to (6) and (8) above any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—

(a) bear and pay the cost reasonably incurred by Anglian Water in making good any damage or restoring the supply; and

(b) make reasonable compensation to Anglian Water for any other expenses, loss, damages, penalty or costs incurred by Anglian Water, by reason or in consequence of any such damage interruption.

10

Notwithstanding the provisions of article 16(2), for any sewer or drain which forms part of the statutory undertaking of Anglian Water, any dispute will not be treated as a dispute under s106 of the Water Industry Act 1991, but will be settled by arbitration in accordance with article 42 (arbitration).

11

Where the detailed design for any part of the authorised development includes any proposal to interact with, connect to or interfere with any asset belonging to Anglian Water, the undertaker must consult Anglian Water on the proposed design before it is submitted for approval under requirement 4 of Schedule 2. The undertaker must have regard to any response to consultation provided by Anglian Water and must include a copy of any response within the submission seeking approval of the detailed design.

PART 3 — FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1

For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.

2

In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003[^f00056];

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

“electronic communications code network” means—so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; andan electronic communications network which the undertaker is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 (infrastructure system) of that code; and

“operator” means the operator of an electronic communications code network.

3

The exercise of the powers conferred by article 30 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

4

(1) Subject to sub-paragraphs (2) to (4), if as a result of the authorised development or its construction, or of any subsidence resulting from the authorised development—

(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development), or other property of an operator; or

(b) there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker and, if such consent is withheld, the undertaker has the sole conduct of any settlement or compromise of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 42 (arbitration).

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This Part of this Schedule does not apply to—

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

(b) any damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.

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

PART 4 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

1

The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

2

In this part of this Schedule—

“the Agency” means the Environment Agency;

“construction” includes executing, placing, altering, replacing, relaying and removal and excavating and “construct” and “constructed” are to be construed accordingly;

“drainage work” means (i) any main river and includes any land which provides or is expected to provide flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring and (ii) any sea defence;

“fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

“main river” means all watercourses shown as such on the statutory main river maps held by the Agency and the Department for Environment Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;

“plans” includes sections, drawings, specifications, calculations and method statements;

“sea defence” means any bank, wall, embankment (and any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the Agency’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949 or by any local authority or any navigation, harbour or conservancy authority;

“specified work” means—so much of any work or operation authorised by this Order as is in, on, under, over or within 8 metres of a main river or is otherwise likely to—affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;cause obstruction to the free passage of fish or damage to any fishery;affect the conservation, distribution or use of water resources; oraffect the conservation value of the main river and habitats in its immediate vicinity;so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a sea defence which is likely to endanger the stability of, cause damage to or reduce the effectiveness of that sea defence, or interfere with the Agency’s access to or along that sea defence; and

“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, basins, sewers and passages through which water flows except a public sewer.

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(1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably request.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 12.

(3) Any approval of the Agency required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and

(c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

(5) If the Agency refuses any approval required under this paragraph then the refusal must be accompanied by a statement of the grounds for refusal.

4

Without limiting paragraph 3 but subject always to the provisions of that paragraph as to reasonableness, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a) to safeguard any drainage work against damage; or

(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

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