Legalize / United Kingdom / Statutory-Instrument

The Sizewell C (Nuclear Generating Station) Order 2022

Type Statutory-Instrument

Publication 2022-07-20

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(1) Subject to paragraph (2) the undertaker may acquire compulsorily such rights over the land within the permanent limits or impose restrictive covenants affecting that land as may be required for any purpose for which that land may be acquired under article 28 (compulsory acquisition of land), by creating them as well as by acquiring rights already in existence.

(2) In the case of the Order land specified in column (2) of Schedule 15 (land in respect of which only rights etc may be acquired), the undertaker’s powers of compulsory acquisition are limited to the acquisition of such new rights and the imposition of such restrictive covenants as may be required for the purpose specified in relation to that land in column (3) of that Schedule.

(3) Subject to section 8 of the 1965 Act (Provisions as to divided land), as substituted by article 36 (acquisition of part of certain properties), where the undertaker acquires an existing right over land under paragraph (1), the undertaker shall not be required to acquire a greater interest in that land.

(4) Schedule 16 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants) has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

(5) In any case where the acquisition of rights or imposition of a restrictive covenant under paragraph (1) is required for the purposes of diverting, replacing or protecting the apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to acquire such rights or impose restrictive covenants to the statutory undertaker in question.

(6) The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (5) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.

Private rights of way

33

(1) Subject to the provisions of this article, and article 16 (permanent stopping up of streets, change of status, and extinguishment of private means of access) insofar as it relates to private means of access, all private rights of way over land subject to compulsory acquisition under this Order are extinguished—

(a) as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry),

whichever is the earlier.

(2) Subject to the provisions of this article, and article 16 insofar as it relates to private means of access, all private rights of way over land owned by the undertaker which, being within the Order limits, is required for the purposes of this Order are extinguished on the appropriation of the land by the undertaker for any of those purposes.

(3) Subject to the provisions of this article, all private rights of way over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(4) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article will be entitled to compensation in accordance with section 152 of the 2008 Act to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) This article does not apply in relation to any right of way to which section 138 of the 2008 Act (Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or where article 42 (statutory undertakers) applies.

(6) Paragraphs (1) to (3) have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of the land,

(ii) the undertaker’s appropriation of it,

(iii) the undertaker’s entry onto it, or

(iv) the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right of way specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right of way in question is vested or belongs.

(7) Where an agreement referred to in paragraph (6)(b)—

(a) is made with a person in or to whom the right of way is vested or belongs; and

(b) is expressed to have effect also for the benefit of those deriving title from or under that person,

the agreement is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(8) This article does not apply to any loss suffered under article 16.

Application of the 1981 Act

34

(1) The 1981 Act applies as if this Order were a compulsory purchase order.

(2) The 1981 Act, as applied, has effect with the following modifications.

(3) In section 1 (application of act) for subsection (2) substitute—

(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.

(4) In section 5 (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A[^f00027] (time limit for general vesting declaration).

(6) In section 5B[^f00028] (extension of time limit during challenge)—

(a) for “section 23 of the Acquisition of Land Act 1981 (Application to High Court in respect of compulsory purchase order)” substitute “section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent)”; and

(b) for “the three year period mentioned in section 4” substitute “the five year period mentioned in article 31 (time limit for exercise of authority to acquire land compulsorily) of the Sizewell C (Nuclear Generating Station) Order 2022”.

(7) In section 6[^f00029] (notices after execution of declaration) for subsection (1)(b) substitute—

(b) on every other person who has given information to the acquiring authority with respect to any of that land further to the invitation published and served under section 134 of the Planning Act 2008.

(8) In section 7[^f00030] (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1[^f00031] (counter-notice requiring purchase of land not in general vesting declaration), omit paragraph 1(2).

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 of the 2008 Act (application of compulsory acquisition provisions) as modified by article 37 to the compulsory acquisition of land under this Order.

Acquisition of subsoil and airspace only

35

(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of and the airspace over the land referred to in paragraph (1) of article 28 (Compulsory acquisition of land) or article 32 (compulsory acquisition of rights and imposition of restrictive covenants) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of, or the airspace over, any land under paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b) Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(4) Paragraphs (2) and (3) do not apply where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or factory or airspace above a house, building or factory.

Acquisition of part of certain properties

36

(1) This article applies instead of section 8(1) of the 1965 Act (Other provisions as to divided land) (as applied by section 125 of the 2008 Act) where—

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or factory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner is required to sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner is required to sell only the land subject to the notice to treat shall, unless the undertaker agrees to take the land subject to the counter-notice, be referred to the Lands Chamber of the Upper Tribunal (“the tribunal”).

(5) If on such a reference the tribunal determines that the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat is deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determines that—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determines that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) Where, by reason of a determination by the tribunal under this article, a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or factory or of land consisting of a house with a park or garden, the undertaker must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Modification of the 1965 Act

37

(1) Part 1 of the 1965 Act, as applied to this Order by section 125 (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4 (Time limit for giving notice to treat) for “after the end of the period of 3 years beginning the day on which the compulsory purchase order becomes operative” substitute “after the end of the period stated in article 31 (time limit for exercise of authority to acquire compulsorily) of the Sizewell C (Nuclear Generating Station) Order 2022”.

(3) In section 4A(1)[^f00032] (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), the five year period mentioned in article 31 (time limit for exercise of authority to acquire land compulsorily) of the Sizewell C (Nuclear Generating Station) Order 2022”.

(4) In section 11A[^f00033] (powers of entry: further notice of entry)—

(a) in subsection (1)(a), after “land” insert” “under that provision”;

(b) in subsection (2), after “land” insert” “under that provision”.

(5) In section 22(2), for “section 4 of this Act” substitute “article 31 (time limit for exercise of powers to acquire land compulsorily) of the Sizewell C (Nuclear Generating Station) Order 2022”.

Rights under or over streets

38

(1) The undertaker may enter on and appropriate and use so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or air-space for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out authorised development

39

(1) The undertaker may, in connection with the carrying out of the authorised development—

(a) enter on and take temporary possession of—

(i) the land specified in column (2) of Schedule 17 (land of which only temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule; and

(ii) any land within the permanent limits in respect of which no notice of entry has been served under section 11 of the 1965 Act (powers of entry) and no declaration has been made under section 4[^f00034] of the 1981 Act (execution of declaration);

(b) remove any electric line, electrical plant, structures, apparatus, buildings and vegetation from that land;

(c) construct temporary or permanent works comprised within the authorised development (including the provision of means of access and buildings or structures on that land);

(d) construct any works specified in relation to that land in column (3) of Schedule 17, or any other mitigation works; and

(e) temporarily possess any land (including land specified in Schedule 17) for the temporary diversion of vehicular traffic or the temporary diversion of public and private rights of way or private means of access where required in the exercise of powers under article 16 (permanent stopping up of streets, change of status, and extinguishment of private means of access) or article 19 (temporary closure of streets and extinguishment of private means of access), or where otherwise required to avoid prejudice to the use of land within the Order limits by land owners during construction of the authorised development.

(2) Not less than 14 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

(3) The undertaker must not, without the agreement of the owners of the land, remain in possession under this article—

(a) in the case of land specified in paragraph (1)(a)(i) above, after the end of the period of 1 year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 17 unless and to the extent that it is authorised to do so by the acquisition of rights over land or the creation of new rights over land pursuant to article 32 (compulsory acquisition of rights and imposition of restrictive covenants); or

(b) in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of 1 year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must either acquire the land under paragraph (1)(a) or, unless otherwise agreed with the owners of the land, remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land, except that the undertaker is not required to—

(a) replace a building removed under this article;

(b) restore the land on which any permanent works have been constructed under paragraph (1)(d);

(d) remove any ground strengthening works which have been placed on the land to facilitate construction, maintenance and operation of the authorised development;

(e) remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development; or

(f) remove or reposition any apparatus belonging to statutory undertakers or necessary mitigation works.

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of any power conferred by this article and, for the avoidance of doubt, this will include compensation in respect of any loss or damage further to any ground strengthening works within paragraph (4)(d) carried out by the undertaker in or on that land.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, will be determined under Part 1 of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act[^f00035] (Compensation in case where no right to claim in nuisance) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not precluded from—

(a) acquiring existing and new rights or imposing any restrictive covenants over any part of that land under article 32;

(b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 35 (acquisition of subsoil and airspace only); or

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (Application of compulsory acquisition provisions).

(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in paragraph (1).

(12) Nothing in this article affects any requirement for the consent of the Secretary of State to be provided for the change of use of a playing field under section 77 of the School Standards and Framework Act 1998.

Time limit for exercise of authority to temporarily use land for carrying out the authorised development

40

(1) Subject to paragraph (2), the authority to enter onto land pursuant to article 39 (temporary use of land for carrying out authorised development) ceases to apply to any land after the period of five years beginning on the day on which the Order is made.

(2) Paragraph (1) will not prevent the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Temporary use of land for maintaining authorised development

41

(1) Subject to paragraph (2), at any time during the operational period relating to any part of the authorised development, the undertaker may—

(a) enter on and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development;

(b) construct such temporary works (including the provision of means of access) and structures and buildings on the land as may be reasonably necessary for that purpose; and

(c) enter onto any land within the Order limits for the purpose of gaining access as is reasonably required for the purpose of maintaining the authorised development.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

(a) any house or garden belonging to a house; or

(b) any building (other than a house) if it is for the time being occupied.

(3) Not less than 3 months before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

(4) The undertaker is not required to serve notice under paragraph (3) where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; and/or

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such period of notice as is reasonably practicable in the circumstances.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(6) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(7) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article.

(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation, will be determined under Part 1 of the 1961 Act.

(9) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (7).

(10) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(11) Section 13 of the 1965 Act (Refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (Application of compulsory acquisition provisions).

Statutory undertakers

42

(1) Subject to the provisions of Schedule 19 (Protective provisions), the undertaker may—

(a) acquire compulsorily the land belonging to statutory undertakers within the Order limits and described in the Book of Reference;

(b) acquire existing rights, create and acquire new rights and impose restrictive covenants over the land belonging to statutory undertakers within the Order limits and described in the Book of Reference;

(c) extinguish or suspend the rights of, remove, alter, renew, relocate or reposition the apparatus belonging to statutory undertakers over or within the Order limits; and

(d) construct the authorised development in such a way as to interfere with any highway or cross underneath or over apparatus belonging to statutory undertakers and other like bodies within the Order limits.

(2) Subject to the provisions of Schedule 19 (Protective provisions), the undertaker may for the purposes of article 14 (street works) remove or reposition apparatus belonging to statutory undertakers which is laid beneath any of the streets specified in Schedule 9 (Streets subject to street works).

Apparatus and rights of statutory undertakers in stopped-up streets

43

(1) Where a street is stopped up under article 16 (permanent stopping up of streets, change of status, and extinguishment of private means of access), any statutory undertaker whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 16, any statutory undertaker whose apparatus is under, in, on, over, along or across the street or public right of way may, and if reasonably requested to do so by the undertaker must—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the statutory undertaker may reasonably determine and have power to place it; or

(b) provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory undertaker an amount equal to the cost reasonably incurred by the statutory undertaker in or in connection with—

(a) the execution of the relocation works required in consequence of the stopping up of the street or public right of way; and

(b) the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

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

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 to be necessary, then, if it involves cost in the execution of the relocation works 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 paragraph, would be payable to the statutory undertaker by virtue of paragraph (3) will be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

(a) an extension of apparatus to a length greater than the length of existing apparatus will 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 cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.

(6) An amount which, apart from this paragraph, would be payable to a statutory undertaker in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, 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 any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 of that Act (Sharing of cost of necessary measures) and any regulations for the time being having effect under that section; and

(b) the allowable costs must be borne by the undertaker and the statutory undertaker in such proportions as may be prescribed by any such regulations.

(8) In this article—

“relocation works” means work executed, or apparatus provided, under paragraph (2); and

“statutory undertaker” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003[^f00036] (Interpretation).

Acquisition of wayleaves, easements and other rights

44

Schedule 18 (Acquisition of wayleaves, easements and other rights) shall have effect.

Recovery of costs of new connections

45

(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 42 (Statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 42, any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer; or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 43 (apparatus and rights of statutory undertakers in stopped-up streets) or Part 3 of the 1991 Act applies.

(4) In this article—

“public communications provider” has the meaning given in section 151(1) of the Communications Act 2003; and

“public utility undertaker” means a gas, water, electricity or sewerage undertaker.

No double recovery

46

Compensation will not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Protective provisions

47

Schedule 19 (Protective provisions) to this Order has effect.

Use of airspace within the Order limits

48

(1) The undertaker may enter into and use so much of the air-space over any land within the Order limits as may be required for the construction, operation and maintenance of the authorised development and may use the air-space for those purposes or any other purposes ancillary to the authorised development.

(2) The undertaker may exercise any power conferred by paragraph (1) in relation to land without being required to acquire any part of the land or any easement or right in the land.

(3) Subject to paragraph (4), any person who is an owner or occupier of land used under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

PART 6 — HARBOUR POWERS

Incorporation of the Harbours, Docks, and Piers Clauses Act 1847

49

(1) With the exception of sections 6 to 23, 25, 27, 29, 31 to 34, 36, 40 to 50, 52, 53, 59, 60, 66 to 68, 70 to 72, 77, 79 to 82, 85 to 89, 92 and 97 to 102, the 1847 Act is incorporated in this Order subject to the modifications stated in paragraphs (2) and (10).

(2) Section 28 of the 1847 Act (exemption of vessels in her Majesty’s or the public service, from rates) has effect as if the words “to charge with rates or duties, or” and the words “without any charge or rate being made for using the same” were removed.

(3) Section 35 of the 1847 Act (Masters to report arrival of vessel) has effect as if the words “liable to rates” were removed.

(4) Section 37 of the 1847 Act (Masters of vessels to give names of consignees, and accounts of goods intended to be unshipped, etc) has effect as if for the words “collector of rates” were substituted the words “harbour master”.

(5) Section 39 of the 1847 Act (Shippers to give an account of goods intended to be shipped) has effect as if for the words “collector of rates” were substituted the words “harbour master”.

(6) Section 62 of the 1847 Act (Penalty for wilfully cutting moorings) has effect as if for the words “level 1” were substituted the words “level 3”.

(7) Section 63 of the 1847 Act (Penalty for placing, etc, vessels near the entrance of harbour or dock, etc, without permission) has effect as if the section was amended to read: “As soon as the Order comes into force, no vessel, except with the permission of the harbour master, shall lie or be moored within the harbour limits; and if the master of any vessel either places it or suffers it to remain within the harbour limits; without such permission, and does not, on being required to do so by the harbour master, forthwith proceed to remove such vessel, he must be liable on summary conviction to a fine not exceeding level 3 on the standard scale.”

(8) Section 69 of the 1847 Act (Combustible matter on quays, &c., to be removed) has effect as if for the words from “shall forfeit” to the end of the section there were substituted the words “must be liable on summary conviction to a fine not exceeding level 3 on the standard scale.”

(9) In construing the 1847 Act as so incorporated—

(a) the expression “the special Act” means this Order;

(b) the expressions “the Promoters of the undertaking” and “the undertakers” mean the undertaker;

(d) the expressions “limits” and “prescribed limits” mean the harbour limits;

(e) the expression “near the pier” does not extend beyond the harbour limits;

(f) the expression “the harbour master”, in relation to the harbour, has the meaning given by article 2 (interpretation); and

(g) the definition of “vessel” in article 2(1) of this Order is substituted for the definition in section 3 of the 1847 Act (Interpretation).

(10) Section 84 of the 1847 Act (Byelaws may be enforced by imposition of penalties) has effect as if the words “being limited to a summary conviction, and” were inserted between the words “shall think fit” and “not exceeding”.

Further powers as to works and extinguishment of rights

50

(1) The undertaker may, in connection with the construction of the marine works—

(a) enclose or reclaim from the foreshore and bed of the sea; and

(b) hold and use as part of the marine works,

so much of the foreshore and bed of the sea as is situated within the limits of Work Nos. 2B, 2D, 2F, 2H, 2J and 2K as shown on the Works Plans and is required for, or in connection with, the construction of the marine works.

(2) As soon as the undertaker exercises the powers under paragraph (1), any right of navigation or other public rights over the part of the sea and the foreshore in respect of which it exercises those powers will be extinguished.

Harbour authority

51

(1) The undertaker is the harbour authority in respect of the harbour.

(2) Without prejudice to any provision of the 1847 Act as incorporated in this Order by article 49 (incorporation of the Harbours, Docks, and Piers Clauses Act 1847), the area within which the harbour authority may exercise its functions under this Order must be the harbour.

Agreements entered into by the undertaker

52

Any agreement or undertaking entered into by the undertaker before the coming into force of this Order in connection with the proposed exercise of its function as harbour authority must be binding upon the harbour authority notwithstanding that it was entered into by the undertaker before it was established as a harbour authority by article 51 (harbour authority).

Application of Pilotage Act 1987

53

The undertaker is a competent harbour authority in respect of the harbour for the purposes of the Pilotage Act 1987[^f00037].

Limits of harbour

54

(1) The limits of the harbour within which the undertaker is permitted to exercise jurisdiction as the harbour authority and within which the powers of the harbour master are exercisable are the seaward and the landward areas described in Schedule 20 (Limits of harbour), as shown edged by a green broken line on the Works Plans.

(2) In the event that there is any discrepancy between the description of the seaward area in Schedule 20 and the area shown on the Works Plans, the description in Schedule 20 will prevail.

Obstruction of work

55

Any person who—

(a) intentionally obstructs any person acting under the authority of the undertaker in setting out the lines of the harbour limits, or in constructing, Work No. 1A(l) permanent beach landing facility) or Work No. 1A(aa) (temporary marine bulk import facility); or

(b) without reasonable excuse interferes with, moves or removes any pole, stake, station point or bench mark or equipment used in the construction, maintenance or use of the harbour, including Work No. 1A(l) (permanent beach landing facility) or Work No. 1A(aa) (temporary marine bulk import facility),

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Obstruction of officers

56

(1) Any person who—

(a) intentionally obstructs an officer of the harbour authority or other person acting in pursuance of this Order or of any enactment relating to the harbour limits;

(b) without reasonable excuse fails to comply with a requirement properly made by such an officer; or

(c) without reasonable excuse fails to give such an officer any information or produce any document which the officer may require for the purpose of performance of their functions,

is guilty of an offence and liable on summary conviction of a fine not exceeding level 3 on the standard scale.

(2) Any person who, in giving such information as is mentioned in paragraph (1)(c), makes a statement which that person knows to be false, is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) Nothing in paragraph (1) applies to the harbour master or to any person acting under the authority of the harbour master.

Abatement of works abandoned or decayed

57

(1) Where a marine work is abandoned, or suffered to fall into decay, the Secretary of State may by notice in writing require the undertaker at its own expense either to repair and restore that work or any part, or to remove that work and restore the site to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.

(2) Where a work consisting partly of a marine work and partly of works on or over land above the level of high water is abandoned or suffered to fall into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include that part of the work, or any portion of it, in any notice under this article.

(3) If the undertaker fails to comply in any respect with a notice served under this article within the period of 30 days beginning with the date of service of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; and any expenditure incurred by the Secretary of State in so doing will be recoverable from the undertaker.

Survey of marine works

58

If the Secretary of State considers it expedient to do so, the Secretary of State may order a survey and examination of a marine work or of the site on which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in any such survey and examination will be recoverable from the undertaker.

Lights on marine works etc. during construction

59

The undertaker must at or near—

(a) any marine work, including any temporary work; or

(b) any plant, equipment or other obstruction placed, in connection with any authorised development, within the area of seaward construction activity,

during the whole time of the construction, reconstruction, extension, enlargement, replacement or relaying of such work or development, exhibit every night from sunset to sunrise such lights and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.

60

In case of damage to, or destruction or decay of, a marine work or any part of it, the undertaker must as soon as reasonably practicable notify Trinity House and must lay down such buoys, exhibit such lights, and take such other steps for preventing danger to navigation, as Trinity House may from time to time direct.

Permanent lights on marine works

61

After the completion of a marine work the undertaker must, at the outer extremity of it exhibit every night from sunset to sunrise such lights, and take such other steps for the prevention of danger to navigation, as Trinity House may from time to time direct.

Rights to lease etc.

62

(1) The undertaker may at any time lease or grant for the purposes of the harbour undertaking the use or occupation of, or any right or interest in, over or relating to, any lands, works, buildings, equipment or other property forming part of the harbour undertaking for such period or periods and on such terms and conditions as may be agreed between the undertaker and the person taking the same.

(2) A lease or grant made or given under paragraph (1) may include provisions delegating to the lessee or grantee any of the functions of the undertaker other than those specified in sub-paragraphs (a) to (f) of paragraph 9B of Schedule 2 to the Harbours Act 1964 (Object for whose achievement harbour revision orders may be made)[^f00038].

(3) A person—

(a) exercising powers conferred by this Order; or

(b) carrying out any development under planning permission granted by article 3 (Permitted development) of, and Class B of Part 8 of Schedule 2 (Dock, pier, harbour, water transport, canal or inland navigation undertakings) to, the 2015 Order,

in pursuance of a lease or grant under paragraph (1) (“the lessee or grantee”) is subject to the same restrictions, liabilities and obligations as would apply under this Order or by virtue of any agreement or undertaking by the undertaker if those powers were exercised, or the development carried out, by the undertaker.

(4) The provisions of this Order or of any such agreement or undertaking, as respects any such exercise of powers or carrying out of development by the lessee or grantee, have effect (where the context so permits) as if any reference in those provisions to the undertaker included a reference to the lessee or the grantee, as the case may be.

Byelaws

63

(1) The undertaker may, from time to time, make and enforce byelaws regulating the use and operation of the authorised development or the harbour, the maintenance of order on and about the authorised development or the harbour and the conduct of all persons including employees of the undertaker while on and about the authorised development or the harbour.

(2) Without prejudice to the generality of paragraph (1), byelaws made under this article may provide for—

(a) regulating the use, operation and superintendence of the harbour and the berths, quays, piers, warehouses, sheds, landing places, equipment, works and conveniences (including moorings) in the harbour;

(b) regulating the admission to, the movement within, and the departure from, the harbour of vessels, or the removal of vessels;

(c) regulating the shipping and unshipping, landing, warehousing, stowing, depositing and removing of goods within the harbour;

(d) regulating the berthing and mooring of vessels within the harbour;

(e) preventing damage or injury to any goods, vehicles, plant, machinery, property or person within the harbour;

(f) regulating the conduct of all persons within the harbour not being members of a police force or officers or servants of the Crown whilst in the execution of their duties;

(g) regulating the placing and maintenance of moorings within the harbour;

(h) preventing and removing obstructions or impediments within the harbour;

(i) regulating in the harbour the use of yachts, sailing boats, sailboards, rowing boats, rowing punts, pleasure craft and other small craft;

(j) regulating or prohibiting the activities in the harbour of divers, surfers, water skiers and other persons engaged in similar recreational pursuits but not so as to prohibit the use for navigation of the vessels referred to in sub-paragraph (i);

(k) regulating the launching of vessels within the harbour;

(l) prohibiting persons in or entering the harbour, or any part of the harbour, from smoking in open spaces in the harbour;

(m) regulating the movement and parking of vehicles within the harbour;

(n) regulating the exercise of the powers vested in the harbour master;

(o) safety precautions to be observed by persons within the harbour, whether or not on board vessels;

(p) the protection and conservation of flora and fauna and other natural features;

(q) making the carrying out of specified harbour operations, or the conduct of persons in the harbour, subject to the approval (with or without conditions), control or direction of the harbour master, and for authorising the harbour master to take such action as may be reasonably required in default of compliance with any such condition, control or direction;

(r) regulating the admission and access to the marine works forming part of the authorised development;

(s) preventing and removing obstructions or impediments within the authorised development;

(t) preventing damage or injury to any goods, vehicles, plant, machinery, property or persons within the authorised development; and

(u) preventing nuisances on the authorised development or works.

(3) Byelaws made under this article may—

(a) provide for imposing upon persons found guilty on summary conviction of offending against them, or against any condition, requirement or direction imposed, made or given under them, fines not exceeding level 3 on the standard scale;

(b) only relate to the area of the harbour limits as described in Schedule 20 to this Order and land controlled or used by the harbour authority; and

(c) make different provision for different parts of the harbour or in relation to different classes of vessels or vehicles.

Confirmation of byelaws

64

(1) Byelaws made by the undertaker under this Order will not come into operation until they have been confirmed by the Secretary of State.

(2) At least 28 days before an application for confirmation of byelaws is made by the undertaker to the Secretary of State, notice of the intention to apply for confirmation and of the place at which and times during which a copy of the byelaws will be open to inspection must be published as follows—

(a) once in each of two successive weeks in two local newspapers circulating in the district of East Suffolk Council; and

(b) on a website managed by the undertaker.

(3) Not later than the first date on which the notice under paragraph (2) is published, the undertaker must send a copy of the notice to the Chief Executive Officer of East Suffolk Council and to the Secretary of State.

(4) During a period of at least 28 days before application is made for confirmation of the byelaws, a copy of the byelaws must be kept by the undertaker at the office of the harbour master and must at reasonable hours be open to public inspection without payment, and must be available on a website managed by the undertaker.

(5) The undertaker must supply a copy of the byelaws or of part of the byelaws to a person who applies for it on payment of a reasonable charge.

(6) During the period of 28 days after completion of the publication of any notice required by paragraph (2), any person may make in writing to the Secretary of State any objection to or representation respecting the byelaws to which the notice relates.

(7) Subject to paragraph (8), the Secretary of State may confirm the byelaws in the form submitted to the Secretary of State with such modifications as the Secretary of State thinks fit or may refuse to confirm them.

(8) Where the Secretary of State proposes to make a modification that appears to the Secretary of State to be substantial the Secretary of State must inform the undertaker and require it to take any steps the Secretary of State considers necessary for informing persons likely to be concerned with the modification, and the Secretary of State may not confirm the byelaws until such period has elapsed as the Secretary of State thinks reasonable for consideration of, and comment upon, the proposed modification by the undertaker and by other persons who have been informed of it.

(9) A copy of the byelaws when confirmed must be printed and deposited by the undertaker at the office of the harbour master and must at all reasonable hours be open to public inspection without payment, must be available on a website managed by the undertaker and a copy of the byelaws must on application be furnished to any person on payment of such reasonable sum as the undertaker may determine.

Power to make general directions to vessels

65

(1) Subject to paragraph (3), the undertaker may give directions, or revoke or amend directions that it has previously given, for the purpose of—

(a) designating areas which vessels are to use, or refrain from using, for movement or mooring;

(b) requiring the master of a vessel to give to the harbour master information relating to the vessel reasonably required by the harbour master to identify the vessel, its cargo and its likely time of arrival at and departure from the harbour; and

(2) A direction under paragraph (1) may apply—

(a) to all vessels or to a class of vessels designated in the direction;

(b) to the whole of the harbour and the approaches and channels leading to the harbour, or to a part designated in the direction; and

and every direction given under this article must specify the extent of its application in relation to the matters referred to in sub-paragraphs (a), (b) and (c).

(3) Before giving a direction, or revoking or amending a direction previously given, under paragraph (1), the undertaker must consult the Royal Yachting Association and the Chamber of Shipping and have regard to any written representations received from them.

Publication of general directions

66

(1) Notice of the giving of a general direction or of any amendment or revocation of a general direction must, except in case of emergency, be published by the undertaker as soon as practicable:

(a) once in each of two successive weeks in two local newspapers circulating in the district of East Suffolk Council; and

(b) on a website managed by the undertaker

and, if the notice relates to the giving or amendment of a direction, the notice must state a place at which copies of the direction or the amended direction (as the case may be) may be inspected and bought, and the price of the direction or amended direction (as the case may be).

(2) In an emergency, notice of the giving of a general direction or of any amendment or revocation of a general direction may be given in any manner the undertaker considers appropriate.

Power to make special directions to vessels

67

(1) The harbour master may give a special direction under this article—

(a) requiring any vessel anywhere within the harbour to comply with a requirement made in or under a general direction;

(b) regulating the time at which and the manner in which any vessel must enter into, go out of, or lie in or at the harbour;

(d) prohibiting the mooring of vessels in any particular part or parts of the harbour;

(e) regulating or requiring the movement, mooring or unmooring of a vessel; and

(f) regulating the manner in which within the harbour a vessel takes in or discharges (from ship to shore or shore to ship) personnel, cargo, fuel, water, ship’s stores or ballast in the harbour.

(2) A special direction may be given in any manner considered by the harbour master to be appropriate.

(3) The harbour master may revoke or amend a special direction.

Master’s responsibility in relation to directions

68

The giving of a general direction under article 65 (power to make general direction to vessels) or a special direction under article 67 (power to make special directions to vessels) does not diminish or in any other way affect the responsibility of the master of the vessel to which the direction is given in relation to that vessel, persons on board, its cargo or any other person or property.

Failure to comply with directions

69

(1) Any person who fails without reasonable excuse to comply with a general direction issued under article 65 (power to make general directions to vessels) or a special direction under article 67 (power to make special directions to vessels) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) In any proceedings for an offence under paragraph (1) it shall be a defence for the person charged to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Enforcement of special directions

70

(1) Without prejudice to any other remedy available to the undertaker, if a special direction issued under article 67 (power to make special directions to vessels) is not complied with within a reasonable time the harbour master may, where practicable and, except in an emergency, only where 48 hours’ notice has been given to the owner or person appearing to have charge of the vessel, put persons on board the vessel to carry out the direction or otherwise cause the vessel to be handled in accordance with the direction.

(2) If there is no one on board the vessel to comply with a special direction, the harbour master may proceed as if the direction had been given and not complied with; but the harbour master must not do so unless, after reasonable inquiry has been made, the master of the vessel cannot be found.

(3) Reasonable expenses incurred in the exercise of the powers conferred by this article are recoverable by the undertaker from the owner of the vessel as if they were a charge of the undertaker in respect of the vessel.

Boarding of vessels

71

Any duly authorised officer of the undertaker may, on producing if so required their authority, enter and inspect a vessel in the harbour limits—

(a) for the purposes of any enactment relating to the harbour authority or of any byelaw relating to the harbour authority or of any direction or byelaw of the harbour authority, including the enforcement thereof; or

(b) to prevent or extinguish fire,

but, except in an emergency, no entry must be made under this article without 48 hours’ notice first having been given to the owner or the person appearing to have charge of the vessel; and the notice must have annexed to it a copy of this article.

Charges

72

(1) The undertaker may levy charges for any services performed by it in the exercise and performance of its statutory powers and duties at the harbour.

(2) The undertaker may confer total or partial exemption from, allow rebates to or make compositions with any person with respect to, charges and may vary or extinguish any such exemption, rebate or composition.

(3) In this article “charges” means any charges other than ship, passenger and goods dues.

Use of beach landing facility and marine bulk import facility

73

The undertaker may only use the temporary marine bulk import facility (Work No. 1A(aa)) for the purposes of, or in connection with, the construction of the authorised development and may only use the permanent beach landing facility for the purposes of, or in connection with the construction, operation, maintenance and decommissioning of the authorised development.

Duration of the powers in Part 6

74

(1) Within 28 days following completion of all works for the removal of the temporary marine bulk import facility in accordance with requirement 29, the undertaker must—

(a) appoint, by resolution, a date on which this Part 6 (Harbour Powers) will cease to have effect, which shall be not more than 28 days after the resolution;

(b) publish a notice containing a copy of the resolution proposed to be passed by the undertaker appointing that date in—

(i) Lloyd’s List newspaper or some other newspaper specialising in shipping news;

(ii) a local newspaper circulating in the district of East Suffolk Council; and

(iii) on a website managed by the undertaker.

(2) Except as provided in article 75 (saving for termination of Part 6) this Part 6 will cease to have effect on the date specified in the resolution.

Saving for termination of Part 6

75

(1) In the article, “relevant proceedings” means any proceedings or inquiries in respect of any situation, matter, thing, happening, act, refusal, neglect or failure occurring during the period before this Part ceased to have effect in accordance with article 74 (duration of the powers in Part 6), so far as relating to the harbour or any part of the harbour, including, but without prejudice to the generality of the foregoing, proceedings for an offence committed or penalty incurred, or for recovery of expenses, rates, dues, fees or charges incurred, during that period.

(2) No relevant proceedings shall be affected by this Part ceasing to have effect, and any such proceedings or inquiries may be commenced, continued and concluded, and any decision, judgment or ruling in them may be enforced as if this Part, and any relevant general or special direction or byelaw, had not ceased to have effect.

(3) Any period of time current in relation to relevant proceedings when this Part ceases to have effect shall not be affected by its ceasing to have effect and may continue to run as if this Part, and any relevant general or special direction or byelaw, had not ceased to have effect.

Saving for Trinity House

76

Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.

PART 7 — DEEMED MARINE LICENCE

Deemed marine licence under the 2009 Act

77

The marine licence set out in Schedule 21 is deemed to have been granted to the undertaker under Part 4 of the 2009 Act for the licensable marine activities (as defined in section 66 of the 2009 Act) set out in Part 2 of the Schedule, and subject to the conditions set out in Part 3 of the Schedule.

PART 8 — MISCELLANEOUS AND GENERAL

Removal of human remains

78

(1) In this article “the specified land” means the land within the Order limits.

(2) Before the undertaker carries out any development or works within the Order limits which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Before any such remains are removed from the specified land the undertaker must give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—

(a) publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised development; and

(b) displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant local planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a) removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b) removed to, and cremated in, any crematorium,

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question is to be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

(a) within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or

(b) such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or

(c) within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or

(d) it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (10) the undertaker must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be reinterred in individual containers which must be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a) a certificate of re-interment or cremation is to be sent by the undertaker to the Registrar General giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b) a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) is to be sent by the undertaker to the relevant local planning authority mentioned in paragraph (4).

(12) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(13) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(14) Section 25 of the Burial Act 1857 (Offence of removal of body from burial grounds)[^f00039] does not apply to a removal carried out in accordance with this article.

Application of landlord and tenant law

79

(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

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

(3) Accordingly, no such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

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

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

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

Operational land for purposes of the 1990 Act

80

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

(a) the permanent development site; and

(b) land in respect of which Work No. 1D and Work No. 1E are authorised.

Felling or lopping of trees and removal of hedgerows

81

(1) The undertaker may fell or lop any tree or shrub near, within or overhanging any part of the authorised development, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from—

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

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

(2) In carrying out any activity authorised by paragraph (1), the undertaker must not cause unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

(3) The approval of East Suffolk Council (not to be unreasonably withheld or delayed) must be obtained before the undertaker may exercise the power in paragraph (1) in respect of any tree outside the Order limits.

(4) The undertaker may, for the purposes of the authorised development—

(a) subject to paragraph (2), remove any hedgerows within the Order limits that may be required for the purposes of carrying out the authorised development; and

(b) only remove important hedgerows identified in Schedule 22 (Removal of important hedgerows) to the extent shown on the plans identified in Schedule 22.

(5) The powers conferred by paragraphs (1) and (3) remove any obligation upon the undertaker to secure any consent under the Hedgerow Regulations 1997[^f00040] in undertaking works pursuant to paragraphs 1(a) or (b) or 4(a) or (b).

(6) Nothing in this article authorises any works to any tree subject to a tree preservation order.

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

(8) In this article “hedgerow” and “important hedgerow” have the meaning given in the Hedgerow Regulations 1997.

Certification of plans, etc.

82

(1) The undertaker must, as soon as practicable after the date on which this Order is made, submit to the Secretary of State copies of the documents and plans identified in Schedule 23 (Certified Documents) to this Order for certification that they are true copies of the documents referred to in this Order.

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

(3) Where a plan or document certified under paragraph (1)—

(a) refers to a provision of this Order (including any specified requirement) when it was in draft form; and

(b) identifies the provision by number or combination of numbers and letters, which is different from the number or combination of numbers or letters by which the corresponding provision of this Order is identified in the Order as made;

the reference in the plan or document concerned must be construed for the purposes of this Order as referring to the provisions (if any) corresponding to that provision in the Order as made.

Service of notices

83

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

(a) by post; or

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

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

(3) For the purposes of section 7 of the Interpretation Act 1978[^f00041] (References to service by post) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

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

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

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

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

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

(5) Paragraphs (6) to (9) apply where a person (“A”) is required or authorised to serve or send a notice or other document for the purposes of this Order on or to another person (“B”).

(6) A may serve or send the notice or other document by electronic transmission if—

(a) B has sent A notice that B agrees to receive that notice or document (or notices and documents of a description including that notice or document) by electronic transmission;

(b) B has not subsequently withdrawn that agreement in accordance with paragraph (8); and

(c) A complies with any conditions as to addressing or mode of transmission that B has specified in agreeing to receive notices or other documents by electronic transmission.

(7) If B notifies A within 7 days of receiving a notice or other document by electronic transmission that B requires a paper copy of all or any part of the notice or other document, A must provide B with such a copy as soon as reasonably practicable.

(8) B may withdraw agreement to receive a notice or document (or notices or documents of a specified description) by electronic transmission by sending a notice to that effect to A.

(9) Notice under paragraph (8) is final and takes effect on a date specified by B in the notice but that date must not be less than 7 days after the date on which the notice is given.

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

(11) In this article “electronic transmission” means a communication transmitted—

(a) by means of an electronic communications network; or

(b) by other means but while in electronic form.

Arbitration

84

(1) –Any difference under any provision of this Order, unless otherwise provided for in this Order or unless otherwise agreed between the parties, and other than a difference which falls to be determined by the tribunal or is the subject of enforcement action under Part 8 of the 2008 Act, is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State.

(2) This article does not apply to the provisions of the 1847 Act incorporated in this Order by article 49 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) or to Trinity House in the exercise of its statutory functions.

(3) This article is without prejudice to article 76 (saving for Trinity House).

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

Procedure in relation to certain approvals etc.

85

(1) Schedule 24 (Procedure for approvals, consents and appeals) is to have effect in relation to all consents, agreement or approvals granted, refused or withheld in relation to the requirements unless otherwise agreed between the undertaker and the discharging authority.

(2) The procedure set out in paragraph (1) relating to the appeal process of Schedule 24 has effect in relation to any other consent, agreement or approval required under this Order (including the requirements in Schedule 2 of this Order) where such consent, agreement or approval is granted subject to any condition to which the undertaker objects, or is refused or is withheld.

(3) Any matter for which the consent or approval of the Marine Management Organisation is required under any provision of this Order shall not be subject to this procedure.

Application, exclusion and modification of legislative provisions

86

Schedule 25 (Miscellaneous controls) to this Order, which makes provision applying, modifying and excluding statutory provisions which relate to matters for which provision may be made by this Order, has effect.

Crown rights

87

(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any lessee or licensee to take, use, enter upon or in any manner interfere with any land or rights of any description (including any portion of the shore or bed of the sea or any river, channel, creek, bay or estuary)—

(a) belonging to Her Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;

(b) belonging to Her Majesty in right of the Crown and not forming part of The Crown Estate without the consent in writing of the government department having the management of that land; or

(c) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown land (as defined in section 227 of the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions and is deemed to have been given in writing where it is sent electronically.

Security in respect of the payment of compensation etc.

88

(1) The undertaker must not exercise the powers in Part 5 (Powers of acquisition and possession of land) of this Order until—

(a) a bond for £42 million pounds has been provided by a financial institution; or

(b) an alternative form of security approved in writing by the Secretary of State has been provided for £42 million pounds,

in respect of the liabilities of the undertaker to pay compensation to landowners in connection with the acquisition of their land or of rights over their land or the temporary use of their land under Part 5 of this Order.

(2) The security referred to in paragraph (1)(b) may include, without limitation, any one or more of the following—

(a) the deposit of a cash sum;

(b) a payment into court;

(d) an insurance policy; or

(e) a company guarantee.

(3) Security given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the provider of that security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.

(4) The undertaker is entitled to reduce the amount of security to be maintained under paragraph (1) where—

(a) the undertaker has made a payment of compensation to a claimant under Part 5 of this Order (including payment under private treaty in lieu of the exercise of the powers under Part 5 of this Order) and provided evidence to the Secretary of State that such payment has been made; and

(b) the Secretary of State is satisfied that the reduced amount of security proposed by the undertaker will cover the remaining liabilities to pay compensation in respect of the exercise of the powers in Part 5 of this Order.

SCHEDULE 1 — Authorised Development

Sizewell C DCO Project: — In the Districts of East Suffolk Council and West Suffolk Council and the County of Suffolk

A nationally significant infrastructure project as defined in sections 14 (Nationally significant infrastructure projects: general) and 15(2) (Generating stations) of the 2008 Act and associated development within the meaning of section 115(2) of the 2008 Act comprising the following development and works:

PART 1 — NUMBERED WORKS

Main development site: operational infrastructure and Sizewell B relocation works

Work No. 1A

An electricity generating station with a net electrical output of approximately 3,340MW power generated by two nuclear reactor units, to include—

(a) buildings, structures and plant within the ’nuclear islands’ for Units 1 and 2, including—

(i) two reactor buildings;

(ii) two fuel buildings;

(iii) two fuel building halls;

(iv) two boron storage buildings;

(v) eight safeguard buildings;

(vi) two nuclear auxiliary buildings;

(vii) two nuclear auxiliary building stacks;

(viii) two access towers;

(ix) radioactive waste storage building;

(x) radioactive waste process building;

(xi) radioactive waste treatment building;

(xii) hot laundry building;

(xiii) hot workshop, hot warehouse, facilities for decontamination;

(xiv) effluent tanks and refuelling water tanks;

(xv) four emergency diesel generator buildings and twelve associated stacks;

(xvi) two ’type 1’ cooling water discharge weir buildings; and

(xvii) two ’type 2’ cooling water discharge weir buildings;

(b) buildings, structures and plant within the ’conventional islands’ for Units 1 and 2, including—

(i) two turbine halls;

(ii) two sky bridges;

(iii) two conventional island electrical buildings;

(iv) two gas insulated switchgear buildings;

(v) two main transformer platforms;

(vi) four unit transformer platforms;

(vii) two auxiliary transformer platforms; and

(viii) six monopoles;

(d) four electricity transmission towers / pylons inside the powers station’s security fence and associated transmission infrastructure;

(e) buildings, structures and plant within the ’cooling water pumphouse and associated buildings’ for Units 1 and 2, including—

(i) two cooling water pumphouses;

(ii) two forebays;

(iii) two outfall pond buildings;

(iv) two filtering debris recovery pits; and

(v) two fire-fighting water distribution buildings;

(f) intermediate level waste store;

(g) interim spent fuel store;

(h) buildings, structures and plant within the ’ancillary structures’, including (but not limited to)—

(i) main access control building;

(ii) auxiliary administration building;

(iii) secondary access control building;

(iv) emergency response centre;

(v) emergency response energy centre;

(vi) meteorological station;

(vii) demineralisation station;

(viii) valve room for the demineralisation station;

(ix) auxiliary boilers;

(x) hydrogen storage;

(xi) oxygen storage;

(xii) hydrazine storage;

(xiii) chlorination plant;

(xiv) service ventilation building;

(xv) raw water & potable water storage/supply building;

(xvi) degassed water storage tanks;

(xvii) cooling water discharge shaft;

(xviii) chemical products storage;

(xix) garage for handling materials;

(xx) oil & grease storage;

(xxi) contaminated tools store;

(xxii) warehouse;

(xxiii) sewage treatment plant;

(xxiv) conventional island water tanks;

(xxv) nuclear island water tank;

(xxvi) conventional waste storage;

(xxvii) transit area for very low and low level waste;

(xxviii) service access buildings;

(xxix) battery load banks;

(xxx) interim spent fuel store equipment storage building; and

(xxxi) emergency equipment store.

(i) 132kV substation and associated compound;

(j) off-site delivery check point, associated buildings, structures and plant;

(k) permanent vehicular and pedestrian bridge over Sizewell Marshes SSSI, preceded by a temporary crossing.

(l) permanent beach landing facility;

(m) soft coastal defence feature;

(n) permanent hard coastal defence feature, preceded by a temporary hard coastal defence feature;

(o) buildings, structures and plant, including a new National Grid substation building, plant, equipment and apparatus, alterations to the existing National Grid substation building, plant, equipment and apparatus, and associated diversion of transmission infrastructure;

(p) one electricity transmission tower /pylon outside the power station’s security fence, and associated transmission infrastructure including overhead line conductors;

(q) 770 permanent operational parking spaces and 600 outage parking spaces;

(r) removal of an existing transmission tower / pylon and associated transmission infrastructure;

(s) realignment of Sizewell Drain and associated works;

(t) perimeter below-ground cut off-wall, including associated dewatering of the contained area;

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