The East Anglia TWO Offshore Wind Farm Order 2022

• (i) a marine pollution contingency plan to address the risks, methods and procedures to deal with any spills and collision incidents of the authorised scheme in relation to all activities carried out;

• (ii) a chemical risk assessment to include information regarding how and when chemicals are to be used, stored and transported in accordance with recognised best practice guidance;

• (iii) waste management and disposal arrangements;

• (iv) the appointment and responsibilities of a fisheries liaison officer;

• (v) a fisheries liaison and coexistence plan, in accordance with the outline fisheries liaison and coexistence plan, to ensure relevant fishing fleets are notified of commencement of licensed activities pursuant to condition 6 and to address the interaction of the licensed activities with fishing activities;

• (vi) procedures which must be adopted within vessels transit corridors to minimise disturbance to red-throated diver during the period 1st November to 31st March (inclusive), which must be in accordance with the best practice protocol for minimising disturbance to red-throated diver.

• (f) In the event that driven or part-driven pile foundations are proposed to be used, a marine mammal mitigation protocol in accordance with the draft marine mammal mitigation protocol, the intention of which is to prevent injury to marine mammals, following current best practice as advised by the relevant statutory nature conservation bodies.

• (g) A written scheme of archaeological investigation in relation to the offshore Order limits seaward of mean high water, which must be submitted to the statutory historic body at least six months prior to commencement of the licensed activities and to the MMO at least four months prior to commencement of the licensed activities and which must accord with the outline written scheme of investigation (offshore) and industry good practice, in consultation with the statutory historic body (and, if relevant, Suffolk County Council) to include—

• (i) details of responsibilities of the undertaker, archaeological consultant and contractor;

• (ii) details of coastal interface;

• (iii) a methodology for further site investigation including any specifications for geophysical, geotechnical and diver or remotely operated vehicle investigations;

• (iv) archaeological analysis of survey data, and timetable for reporting, which is to be submitted to the MMO within four months of any survey being completed;

• (v) delivery of any mitigation including, where necessary, identification and modification of archaeological exclusion zones;

• (vi) monitoring of archaeological exclusion zones during and post construction, where required;

• (vii) a requirement for the undertaker to ensure that a copy of any agreed archaeological report is deposited with the Archaeological Data Service, by submitting an OASIS (Online AccesS to the Index of archaeological investigationS’) form with a digital copy of the report within six months of completion of construction of the authorised scheme, and to notify the MMO and Historic England that the OASIS form has been submitted to the Archaeological Data Service within two weeks of submission;

• (viii) a reporting and recording protocol, including reporting of any wreck or wreck material during construction, operation and decommissioning of the authorised scheme; and

• (ix) a timetable for all further site investigations, which must allow sufficient opportunity to establish a full understanding of the historic environment within the offshore Order limits and the approval of any necessary mitigation required as a result of the further site investigations prior to commencement of licensed activities.

• (h) An offshore operations and maintenance plan, in accordance with the outline offshore operations and maintenance plan, to be submitted to the MMO at least six months prior to commencement of operation of the licensed activities and to provide for review and resubmission every three years during the operational phase.

• (i) An aids to navigation management plan to be approved in writing by the MMO following consultation with Trinity House, to include details of how the undertaker will comply with the provisions of condition 7 for the lifetime of the authorised scheme.

• (j) A Sabellaria reef management plan, in accordance with the outline Sabellaria reef management plan, to be submitted to the MMO at least six months prior to undertaking any pre-construction geophysical survey detailed in the monitoring plan to be submitted under condition 13(1)(c)(i).

• (2) In the event that driven or part-driven pile foundations are proposed to be used, the hammer energy used to drive or part-drive the pile foundations must not exceed—

• (a) 4,000kJ in respect of monopile foundations; and

• (b) 2,400kJ in respect of pin piles.

• (3) Pre-construction archaeological investigations, UXO clearance and pre-commencement material operations which involve intrusive seabed works must only take place in accordance with a specific written scheme of archaeological investigation which is itself in accordance with the details set out in the outline written scheme of investigation (offshore), and which has been submitted to and approved by the MMO in consultation with the statutory historic body.

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• (1) Any archaeological reports produced in accordance with condition 13(1)(g)(iii) are to be approved by the statutory historic body.

• (2) Each programme, statement, plan, protocol or scheme required to be approved under condition 13 must be submitted for approval at least six months prior to the intended commencement of licensed activities, except where otherwise stated or unless otherwise agreed in writing by the MMO.

• (3) No licensed activity may commence until for that licensed activity the MMO has approved in writing any relevant programme, statement, plan, protocol or scheme required to be approved under condition 13.

• (4) The licensed activities must be carried out in accordance with the approved plans, protocols, statements, schemes and details approved under condition 13, unless otherwise agreed in writing by the MMO.

• (5) No part of the authorised scheme may commence until the MMO, in consultation with the MCA, has confirmed in writing that the undertaker has taken into account and, so far as is applicable to that part of the authorised scheme, adequately addressed all MCA recommendations as appropriate to the authorised scheme contained within MGN654 “Offshore Renewable Energy Installations (OREIs) – Guidance on UK Navigational Practice, Safety and Emergency Response Issues” and its annexes.

Reporting of engaged agents, contractors and vessels

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• (1) The undertaker must provide the following information to the MMO—

• (a) the name and function of any agent or contractor appointed to engage in the licensed activities within seven days of appointment; and

• (b) each week during the construction of the authorised scheme a completed Hydrographic Note H102 listing the vessels currently and to be used in relation to the licensed activities.

• (2) Any changes to the supplied details must be notified to the MMO in writing prior to the agent, contractor or vessel engaging in the licensed activities.

Pre-construction monitoring and surveys

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• (1) The undertaker must, in discharging condition 13(1)(c), submit details (which accord with the in principle monitoring plan) for written approval by the MMO in consultation with the relevant statutory bodies of proposed pre-construction surveys, including methodologies (including appropriate buffers, where relevant) and timings, and a proposed format and content for a pre-construction baseline report; and

• (a) the survey proposals must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the post-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement; and

• (b) the baseline report proposals must ensure that the outcome of the agreed surveys together with existing data and reports are drawn together to present a valid statement of the pre-construction position, with any limitations, and must make clear what post-construction comparison is intended and the justification for this being required.

• (2) The pre-construction surveys referred to in sub-paragraph (1) must, unless otherwise agreed with the MMO, have due regard to, but not be limited to, the need to undertake—

• (a) a survey to determine the location and extent of any Sabellaria spinulosa reef inside the area(s) within the Order limits in which it is proposed to carry out construction works;

• (b) a full sea floor coverage swath-bathymetry survey undertaken to IHO Order 1a standard that meets the requirements of MGN654 and its annexes, and side scan sonar, of the area(s) within the Order limits in which it is proposed to carry out construction works including an appropriate buffer area around the site of each work, inclusive of seabed anomalies or sites of historic or archaeological interest that lie within the buffer;

• (c) any marine mammal monitoring required by the monitoring plan submitted in accordance with condition 13(1)(c); and

• (d) any ornithological monitoring required by the monitoring plan submitted in accordance with condition 13(1)(c).

• (3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the baseline report to the MMO in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation bodies.

Construction monitoring

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• (1) The undertaker must, in discharging condition 13(1)(c), submit details (which accord with the in principle monitoring plan) for approval by the MMO in consultation with the relevant statutory nature conservation bodies of any proposed monitoring, including methodologies and timings, to be carried out during the construction of the authorised scheme. The survey proposals must specify each survey’s objectives. In any event, such monitoring must include measurements of noise generated by the installation of the first four piled foundations of each piled foundation type to be installed.

• (2) The undertaker must carry out the surveys approved under sub-paragraph (1), including any further noise monitoring required in writing by the MMO, and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation bodies.

• (3) The results of the initial noise measurements monitored in accordance with sub-paragraph (1) must be provided to the MMO within six weeks of the installation of the first four piled foundations of each piled foundation type. The assessment of this report by the MMO will determine whether any further noise monitoring is required. If, in the opinion of the MMO in consultation with the statutory nature conservation body, the assessment shows significantly different impacts to those assessed in the environmental statement or failures in mitigation, all piling activity must cease until an update to the marine mammal mitigation protocol and further monitoring requirements have been agreed.

• (4) Construction monitoring must include traffic monitoring in accordance with the outline navigation monitoring strategy, including the provision of reports on the results of that monitoring periodically as requested by the MMO in consultation with Trinity House and the MCA.

Post construction

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• (1) The undertaker must, in discharging condition 13(1)(c), submit details (which accord with the in principle monitoring plan) for approval by the MMO in consultation with relevant statutory bodies of proposed post-construction surveys, including methodologies and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the pre-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement.

• (2) The post-construction surveys referred to in sub-paragraph (1) must, unless otherwise agreed with the MMO, have due regard to, but not be limited to, the need to undertake—

• (a) appropriate surveys to determine any change in the location, extent and composition of any Sabellaria spinulosa reef identified in the pre-construction survey in the parts of the offshore Order limits in which construction works were carried out. The survey design must be informed by the results of the pre-construction survey;

• (b) within twelve months of completion of the licensed activities, one swath-bathymetry survey undertaken to IHO Order 1a standard that meets the requirements of MGN654 and its annexes of the part(s) of the Order limits in which construction works were carried out to assess any changes in bedform topography and such further monitoring or assessment as may be agreed to ensure that cables have been buried or protected;

• (c) any marine mammal monitoring required by the monitoring plan submitted in accordance with condition 13(1)(c);

• (d) post-construction traffic monitoring in accordance with the outline navigation monitoring strategy, including the provision of reports on the results of that monitoring periodically as requested by the MMO in consultation with Trinity House and the MCA; and

• (e) any ornithological monitoring required by the monitoring plan submitted in accordance with condition 13(1)(c).

• (3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation bodies.

• (4) Following installation of cables, the cable monitoring plan required under condition 13(1)(d)(ii)(cc) must be updated with the results of the post installation surveys. The plan must be implemented during the operational lifetime of the project and reviewed as specified within the plan, following cable burial surveys, or as instructed by the MMO.

Reporting of impact pile driving/detonation of explosives

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• (1) Only when driven or part-driven pile foundations or detonation of explosives are proposed to be used as part of the foundation installation the undertaker must provide the following information to the Marine Noise Registry—

• (a) prior to the commencement of the licenced activities, information on the expected location, start and end dates of impact pile driving/detonation of explosives to satisfy the Marine Noise Registry’s Forward Look requirements;

• (b) within 12 weeks of completion of impact pile driving/detonation of explosives, information on the locations and dates of impact pile driving/detonation of explosives to satisfy the Marine Noise Registry’s Close Out requirements.

• (2) The undertaker must notify the MMO of the successful submission of Forward Look or Close Out data pursuant to paragraph (1) above within 7 days of the submission.

• (3) For the purpose of this condition—

• (a) “Marine Noise Registry” means the database developed and maintained by JNCC on behalf of Defra to record the spatial and temporal distribution of impulsive noise generating activities in UK seas;

• (b) “Forward Look” and “Close Out” requirements are as set out in the UK Marine Noise Registry Information Document Version 1 (July 2015) or any updated information document.

Scour protection and cable protection during operation

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• (1) During the period of five years following the completion of construction the undertaker must not install scour protection in locations where scour protection was not installed during construction until the following information has been submitted to and approved by the MMO in consultation with the relevant statutory nature conservation body—

• (a) the need for and location of the scour protection;

• (b) the type and sources of scour protection proposed to be used;

• (c) the volume and area of scour protection proposed, together with details of the total volume and area of scour protection installed under this licence;

• (d) installation methods for the scour protection; and

• (e) a report to confirm the Environmental Statement predictions in relation to the potential impact of scour protection and that the data used is appropriate.

• (2) The information required under sub-paragraph (1) must be submitted to the MMO for approval at least four months prior to the date on which scour protection is intended for installation, unless otherwise agreed with the MMO.

• (3) The installation of such scour protection must be undertaken in accordance with the details approved under sub-paragraph (1).

• (4) A close out report following each instance of installation of scour protection approved under sub-paragraph (1) must be submitted to the MMO within three months of completion of the activity.

• (5) Following the date of completion of construction, the undertaker must not install scour protection in locations where scour protection was not installed during construction unless approved under sub-paragraph (1).

• (6) During the period of five years following the completion of construction the undertaker must not install cable protection in locations where cable protection was not installed during construction until the following information has been submitted to and approved by the MMO in consultation with the relevant statutory nature conservation body—

• (a) the need for and location of the cable protection;

• (b) the type and sources of cable protection proposed to be used;

• (c) the volume and area of cable protection proposed, together with details of the total volume and area of cable protection installed under this licence;

• (d) installation methods for the cable protection; and

• (e) a report to confirm the Environmental Statement predictions in relation to the potential impact of cable protection and that the data used is appropriate.

• (7) The information required under sub-paragraph (6) must be submitted to the MMO for approval at least four months prior to the date on which cable protection is intended for installation, unless otherwise agreed with the MMO.

• (8) The installation of such cable protection must be undertaken in accordance with the details approved under sub-paragraph (6).

• (9) A close out report following each instance of installation of cable protection approved under sub-paragraph (6) must be submitted to the MMO within three months of completion of the activity.

• (10) Following the date of completion of construction, the undertaker must not install cable protection in locations where cable protection was not installed during construction unless approved under sub-paragraph (6).

Co-operation

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• (1) Prior to submission of plans and documentation required to be submitted to the MMO for approval in accordance with conditions 12(1), 13(1) and 22(1), the undertaker must provide a copy of the relevant plans and documentation to the East Anglia ONE North undertaker to enable the East Anglia ONE North undertaker to provide any comments on the plans and documentation to the undertaker.

• (2) The plans and documentation submitted to the MMO for approval in accordance with conditions 12(1), 13(1) and 22(1) must be accompanied by any comments received by the undertaker from the East Anglia ONE North undertaker in accordance with paragraph (1) or a statement from the undertaker confirming that no such comments were received.

• (3) The undertaker must participate in liaison meetings with the East Anglia ONE North undertaker as requested from time to time by the MMO in writing in advance, and such meetings will be chaired by the MMO and may consider such matters as are determined by the MMO relating to the efficient management and discharge of conditions 12(1), 13(1) and 22(1) of this licence and conditions 12(1), 13(1) and 22(1) of Schedule 14, Part 2 to the East Anglia ONE North Order.

• (4) For the purposes of this condition—

• “East Anglia ONE North authorised scheme” means Work Nos. 1 to 6 of the East Anglia ONE North Order;

• “East Anglia ONE North Order” means the East Anglia ONE North Offshore Wind Farm Order 2022; and

• “East Anglia ONE North undertaker” means the undertaker in respect of the East Anglia ONE North authorised scheme.

Southern North Sea Special Area of Conservation Site Integrity Plan (Piling)

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• (1) No piling activities can commence until a Site Integrity Plan (SIP), which accords with the principles set out in the in principle East Anglia TWO Project Southern North Sea SAC Site Integrity Plan, has been submitted to, and approved in writing, by the MMO in consultation with the relevant statutory nature conservation body.

• (2) The SIP submitted for approval must contain a description of the conservation objectives for the Southern North Sea Special Area of Conservation (SNS SAC) as well as any relevant management measures and it must set out the key statutory nature conservation body advice on activities within the SNS SAC relating to piling as set out within the JNCC Guidance and how this has been considered in the context of the authorised scheme.

• (3) The SIP must be submitted to the MMO no later than six months prior to commencement of piling activities.

• (4) In approving the SIP the MMO must be satisfied that the authorised scheme at the pre-construction stage, in-combination with other plans and projects, is in line with the JNCC Guidance.

Southern North Sea Special Area of Conservation Site Integrity Plan (UXO clearance)

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• (1) No removal or detonation of UXO can take place until a Site Integrity Plan (SIP), which accords with the principles set out in the in principle East Anglia TWO Project Southern North Sea SAC Site Integrity Plan, has been submitted to, and approved in writing, by the MMO in consultation with the relevant statutory nature conservation body.

• (2) The SIP submitted for approval must contain a description of the conservation objectives for the Southern North Sea Special Area of Conservation (SNS SAC) as well as any relevant management measures and it must set out the key statutory nature conservation body advice on activities within the SNS SAC relating to removal or detonation of UXO as set out within the JNCC Guidance and how this has been considered in the context of the authorised scheme.

• (3) The SIP must be submitted to the MMO no later than six months prior to removal or detonation of UXO being undertaken.

• (4) In approving the SIP the MMO must be satisfied that the authorised scheme at the pre-construction stage, in-combination with other plans and projects, is in line with the JNCC Guidance.

Control of piling and UXO detonations

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• (1) The undertaker must not—

• (a) undertake pile driving in respect of more than one pile at the same time;

• (b) undertake more than one UXO detonation at the same time; or

• (c) undertake pile driving at the same time as undertaking a UXO detonation.

• (2) In the event that pile driving or UXO detonation is being carried out under licence 1 (generation), the undertaker must not undertake pile driving or UXO detonation under this licence at the same time.

• (3) During the winter period the undertaker must not carry out more than one pile driving activity or UXO detonation within a 24 hour period under this licence, alone or in-combination with pile driving or UXO detonations undertaken in accordance with licence 1 (generation).

• (4) For the purpose of this condition—

• (a) “winter period” means the period between 1st October to 31st March inclusive.

Herring spawning

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• (1) The undertaker must not undertake pile driving or UXO detonations during the herring spawning period.

• (2) The “herring spawning period” means a period within 1st November and 31st January to be confirmed in writing by the MMO following submission of a herring spawning report by the undertaker which analyses the International Herring Larval Survey data for the periods 1st – 15th January and 16th – 31st January for the preceding ten years in order to determine when the highest larval densities occur and which includes a methodology for the analysis.

• (3) Unless otherwise agreed in writing with the MMO, the report referred to in sub-paragraph (2) must be submitted to the MMO at least six months prior to—

• (a) the date on which it is intended for UXO clearance activities to begin; or

• (b) the commencement of construction,

whichever is earlier.

Sediment sampling

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• (1) The undertaker must not undertake dredge or disposal activities until the following have been submitted to and approved in writing by the MMO—

• (a) details of an additional sediment contaminants sampling campaign; and

• (b) a dredge and disposal process report detailing—

• (i) the results of the sampling campaign referred to in sub-paragraph (1)(a); and

• (ii) the requirements to be adhered to during any dredge and disposal activities.

• (2) Any dredge and disposal activities must be undertaken in accordance with the dredge and disposal process report approved under sub-paragraph (1).

Completion of construction

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• (1) The undertaker must submit a close out report to the MMO and the relevant statutory nature conservation body confirming the date of completion of construction within three months of the date of completion of construction.

• (2) Following completion of construction, no further construction activities can be undertaken under this licence.

SCHEDULE 15 — Arbitration Rules

Primary objective

1

• (1) The primary objective of these Arbitration Rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within four months from the date the Arbitrator is appointed pursuant to article 37 (arbitration) of the Order.

• (2) The Parties will first use their reasonable endeavours to settle a dispute amicably through negotiations undertaken in good faith by the senior management of the Parties. Any dispute which is not resolved amicably by the senior management of the Parties within twenty business days of the dispute arising, or such longer period as agreed in writing by the Parties, shall be subject to arbitration in accordance with the terms of this Schedule.

• (3) The Arbitration shall be deemed to have commenced when a party (“the Claimant”) serves a written notice of arbitration on the other party (“the Respondent”).

Time periods

2

• (1) All time periods in these Arbitration Rules are measured in days and this will include weekends but not bank holidays in England and Wales as defined in the Banking and Financial Dealings Act 1971.

• (2) Time periods are calculated from the day after the Arbitrator is appointed which is either—

• (a) the date the Arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or

• (b) the date the Arbitrator is appointed by the Secretary of State.

Timetable

3

• (1) The timetable for the Arbitration is set out in sub–paragraphs (2) to (4) below unless amended in accordance with paragraph 5(3).

• (2) Within 14 days of the Arbitrator being appointed, the Claimant must provide both the Respondent and the Arbitrator with—

• (a) a written Statement of Claim which describes the nature of the difference between the parties, the legal and factual issues, the Claimant’s contentions as to those issues, the amount of its claim and/or the remedy it is seeking; and

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.

• (3) Within 14 days of receipt of the Claimant’s statements under sub–paragraph (2) by the Arbitrator and Respondent, the Respondent must provide the Claimant and the Arbitrator with—

• (a) a written Statement of Defence responding to the Claimant’s Statement of Claim, its statement in respect of the nature of the difference, the legal and factual issues in the Claimant’s claim, its acceptance of any element(s) of the Claimant’s claim, its contentions as to those elements of the Claimant’s claim it does not accept;

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;

• (c) any objections it wishes to make to the Claimant’s statements, comments on the Claimant’s expert report(s) (if submitted by the Claimant) and explanations for the objections.

• (4) Within 7 days of the Respondent serving its statements under sub–paragraph (3), the Claimant may make a Statement of Reply by providing both the Respondent and the Arbitrator with—

• (a) a written statement responding to the Respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;

• (b) all statements of evidence and copies of documents in response to the Respondent’s submissions;

• (c) any expert report in response to the Respondent’s submissions;

• (d) any objections to the statements of evidence, expert reports or other documents submitted by the Respondent;

• (e) its written submissions in response to the legal and factual issues involved.

Procedure

4

• (1) The seat, or place, of the arbitration shall be London, England, the governing law shall be the laws of England and Wales and the language of the arbitration proceedings shall be English. The proceedings shall be conducted in accordance with the Arbitration Act 1996⁴⁸, save where modified by these Rules.

• (2) The Arbitrator must make an award on the substantive difference(s) based solely on the written material submitted by the parties unless the Arbitrator decides that a hearing is necessary to explain or resolve any matters.

• (3) Either party may, within 2 business days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.

• (4) Within 7 days of receiving the last submission, the Arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.

• (5) Within 10 days of the Arbitrator advising the parties that he is to hold a hearing, the date and venue for the hearing must be fixed by agreement with the parties, save that if there is no agreement the Arbitrator must direct a date and venue which he considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the Arbitrator’s direction confirming the date and venue of the hearing.

• (6) A decision must be made by the Arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the Arbitrator, then any expert(s) attending the hearing may be asked questions by the Arbitrator.

• (7) There is no process of examination and cross-examination of experts, but the Arbitrator shall invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the Arbitrator’s questions. Prior to the hearing the procedure for the expert(s) is—

• (a) at least 28 days before a hearing, the Arbitrator must provide a list of issues to be addressed by the expert(s);

• (b) if more than one expert is called, they are to jointly confer and produce a joint report or reports within 14 days of the issues being provided; and

• (c) the form and content of a joint report must be as directed by the Arbitrator and must be provided at least 7 days before the hearing.

• (8) Within 14 days of a Hearing or a decision by the Arbitrator that no hearing is to be held the Parties may by way of exchange provide the Arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The Arbitrator must take these submissions into account in the award.

• (9) Where a party requests an expedited procedure, accompanied by an evidenced reason for expedition, the Arbitrator may vary the timescales in sub-paragraphs (3), (4), (5) and (7), but where a party does so, the Arbitrator must provide an opportunity for parties objecting to the effects of an expedited procedure to provide written submissions on that point and may decide to revert to standard timescales in response to such submissions. Where an expedited procedure is sustained, the Arbitrator must set out their reasons for acceding to an expedited timetable in writing, to be given alongside their award.

• (10) The Arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which they are appointed, unless both parties otherwise agree to an extension to the date for the award.

• (11) If a party fails to comply with the timetable, procedure or any other direction then the Arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before them attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction.

• (12) The Arbitrator’s award must include reasons. The parties must accept that the extent to which reasons are given shall be proportionate to the issues in dispute and the time available to the Arbitrator to deliver the award.

Arbitrator’s powers

5

• (1) The Arbitrator has all the powers of the Arbitration Act 1996, including the non-mandatory sections, save where modified by these Rules.

• (2) There must be no discovery or disclosure, except that the Arbitrator has the power to order the parties to produce such documents as are reasonably requested by another party no later than the Statement of Reply, or by the Arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders are to be made by way of a Redfern Schedule without any hearing.

• (3) Any time limits fixed in accordance with this procedure or by the Arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the Arbitrator. In the absence of agreement, the Arbitrator may vary the timescales and/or procedure—

• (a) if the Arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;

• (b) only for such a period that is necessary to achieve fairness between the parties.

• (4) On the date the award is made, the Arbitrator must notify the parties that the award is completed, signed and dated, and that it is to be issued to the parties on receipt of cleared funds for the Arbitrator’s fees and expenses.

Costs

6

• (1) The costs of the Arbitration must include the fees and expenses of the Arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the Arbitration.

• (2) Subject to sub-paragraph (3), the Arbitrator will award recoverable costs on the general principle that each party should bear its own costs.

• (3) The Arbitrator may depart from the general principle in sub-paragraph (2) and make such other costs award as it considers reasonable where a party has behaved unreasonably as defined within the National Planning Practice Guidance or such other guidance as may replace it.

Confidentiality

7

• (1) Subject to sub-paragraphs (2), (3) and (4), any arbitration hearing and documentation shall be open to and accessible by the public.

• (2) Where the Arbitration relates to a dispute or difference under the provisions of Schedule 10, the hearings must take place in private unless otherwise agreed between the parties and any matters, materials, documents, awards, expert reports and the like are confidential and must not be disclosed to any third party without prior written consent of the other party.

• (3) The Arbitrator may direct that the whole or part of a hearing is to be private and/or any documentation to be confidential where it is necessary in order to protect commercially sensitive information.

• (4) Nothing in this paragraph shall prevent any disclosure of a document by a party pursuant to an order of a court in England and Wales or where disclosure is required under any enactment.

Conservatory and Interim Measures

8

• (1) Unless the parties have otherwise agreed, after the arbitration has commenced, the Arbitrator may, at the request of either party, order any conservatory or interim measure it deems appropriate. Any conservatory or interim measure shall be in the form of an order, giving reasons, or of an award, as the Arbitrator considers appropriate.

• (2) Unless the parties have otherwise agreed, either party may apply to the courts of England and Wales for conservatory or interim measures.

• (3) Such application by a party shall not be deemed to be an infringement or a waiver of the arbitration agreement, and shall not affect the relevant powers reserved to the Arbitrator.

SCHEDULE 16 — Procedure for discharge of requirements

Applications made for certain approvals

1

• (1) Where an application has been made to a discharging authority for any consent, agreement or approval required or contemplated by any of the requirements within Part 3 of Schedule 1 (requirements) to this Order—

• (a) the undertaker must give the discharging authority sufficient information to identify the requirement(s) to which the application relates; and

• (b) the undertaker must provide such particulars, plans and drawings as are reasonably considered necessary to deal with the application.

• (2) The discharging authority must give notice to the undertaker of its decision on the application before the end of the decision period.

• (3) For the purposes of this paragraph, the decision period is—

• (a) where no further information is requested under paragraph 2 (further information), 56 days from the day immediately following that on which the application is received by the discharging authority;

• (b) where further information is requested under paragraph 2 (further information) 42 days from the day immediately following that on which the further information has been supplied by the undertaker under paragraph 2; or

• (c) such longer period as may be agreed by the undertaker and the discharging authority in writing before the end of the period in sub-paragraph (a) or (b).

Further information

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• (1) In relation to any application to which this Schedule applies, the discharging authority has the right to request such further information from the undertaker as is reasonably necessary to enable it to consider the application.

• (2) If the discharging authority considers such further information to be necessary it must, as soon as reasonably practicable and within 20 business days of receipt of the application notify the undertaker in writing specifying the further information required.

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

• (4) A discharging authority may request further information under sub-paragraph (1) on more than one occasion provided that all such requests are made within the period specified by sub-paragraph (2).

Appeals

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• (1) The undertaker may appeal to the Secretary of State in the event that—

• (a) the discharging authority refuses an application for any consent, agreement or approval required or contemplated by a requirement contained within Part 3 of Schedule 1 (requirements) to this Order or grants it subject to conditions to which the undertaker objects;

• (b) the discharging authority does not give notice of its decision to the undertaker within the decision period specified in paragraph 1 (applications made for certain approvals);

• (c) on receipt of a request for further information under paragraph 2 (further information) the undertaker considers that either the whole or part of the specified information requested by the discharging authority is not necessary for consideration of the application; or

• (d) on receipt of any further information requested, the discharging authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

• (2) The appeal process is as follows—

• (a) the undertaker must submit the appeal documentation to the Secretary of State, which must include a copy of the application submitted to the discharging authority and any supporting documentation which the undertaker may wish to provide;

• (b) the undertaker must on the same day provide copies of the appeal documentation to the discharging authority and the relevant consultees (if applicable);

• (c) as soon as is practicable after receiving the appeal documentation, but in any event within 28 business days of receiving the appeal documentation, the Secretary of State must appoint a person to determine the appeal (“the appointed person”) and must notify the appeal parties of the identity of the appointed person and the address to which all correspondence for that person’s attention should be sent;

• (d) the discharging authority and the relevant consultees must submit written representations to the appointed person in respect of the appeal within 20 business days of the date on which the appeal parties are notified of the appointment of a person under sub-paragraph (c) 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;

• (e) the appeal parties shall make any counter-submissions to the appointed person within 20 business days of receipt of written representations pursuant to sub-paragraph (d) above.

• (3) The appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and within 40 business days of—

• (a) the deadline within sub-paragraph (2)(e); or

• (b) the deadline for written submissions in respect of further information submitted in accordance with sub-paragraph (5),

whichever is later.

• (4) If the appointed person considers that further information is necessary to enable consideration of the appeal the appointed person must, as soon as practicable, and within 10 business days of the deadline for submissions in accordance with sub-paragraph (2)(e), or where further information has already been requested, within 10 business days of the deadline for written submissions in accordance sub-paragraph (5), notify the appeal parties in writing specifying the further information required, the appeal party from whom the information is sought, and the date by which the information is to be submitted.

• (5) Any further information required under sub-paragraph (4) is to be provided by the party from whom the information is sought to the appointed person and to other appeal parties by the date specified by the appointed person. Any written representations concerning matters contained in the further information must be submitted to the appointed person, and made available to all appeal parties within 10 business days of that date.

• (6) On an appeal under this paragraph, the appointed person may—

• (a) allow or dismiss the appeal; or

• (b) reverse or vary any part of the decision of the discharging authority (whether the appeal relates to that part of it or not), and may deal with the application as if it had been made to the appointed person in the first instance.

• (7) The appointed person may proceed to a decision even though no written representations have been made within those time limits if it appears to the appointed person that there is sufficient material to enable a decision to be made.

• (8) The decision of the appointed person on an appeal is to be final and binding on the appeal parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

• (9) If an approval is given by the appointed person under this Schedule, it is deemed to be an approval for the purpose of any consent, agreement or approval required under Part 3 of Schedule 1 (requirements) as if it had been given by the discharging authority.

• (10) Except where a direction is given under sub-paragraph (11) requiring the costs of the appointed person to be paid by the discharging authority, the reasonable costs of the appointed person are to be met by the undertaker.

• (11) On application by the discharging 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 on the award of costs or any circular or guidance which may from time to time replace it.

Interpretation of Schedule 16

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In this Schedule—

• “the appeal parties” means the discharging authority, the undertaker and any relevant consultees.

• “business day” means a day other than Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971;

• “discharging authority” means the body responsible for giving consent, agreement or approval pursuant to a requirement within Part 3 of Schedule 1 (requirements) to this Order;

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

SCHEDULE 17 — Documents to be certified

PART 1 — Documents forming the environmental statement to be certified