Legalize / United Kingdom / Statutory-Instrument

The Boston Alternative Energy Facility Order 2023

Type Statutory-Instrument

Publication 2023-07-05

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(3) Section 25 of the Burial Act 1857[^f00058] (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State) does not apply to a removal carried out in accordance with article 24 (removal of human remains) of this Order.

(4) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 of the Community Infrastructure Levy Regulations 2010[^f00059] any building comprised in the authorised development is deemed to be—

(a) a building into which people do not normally go; or

(b) a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.

Amendment of local legislation

41

(1) The following local enactments and local byelaws, and any byelaws or other provisions made under any of those enactments or byelaws, are hereby excluded and do not apply insofar as inconsistent with a provision, of or a power conferred by, this Order—

(a) Boston Port and Harbour Act 1812[^f00060];

(b) Witham Navigation and Drainage Act 1812[^f00061];

(d) Boston Dock Act 1881[^f00063];

(e) Land Drainage (Black Sluice) Provisional Order Confirmation Act 1925[^f00064];

(f) The Boston Barrier Order 2017[^f00065];

(g) Boston Dock Byelaws 1947; and

(h) Black Sluice Internal Drainage Board Complete Land Drainage Byelaws 1988.

(2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and insofar as (in particular)—

(a) it would make it an offence to take action, or not to take action, in pursuance of a power conferred by this Order;

(b) action taken in pursuance of a power conferred by this Order would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or

(c) action taken in pursuance of a power or duty under the provisions would or might interfere with the exercise of any work authorised by this Order.

(3) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker or by virtue of this Order would amount to a contravention of a statutory provision of local application, the undertaker must as soon as reasonably practicable, and at any rate within 14 days of receipt of the notice, respond in writing setting out—

(a) whether the undertaker agrees that the action taken or proposed does or would contravene the provision of local application;

(b) if the undertaker does agree, the grounds (if any) on which the undertaker believes that the provision is excluded by this article; and

Planning permission, etc.

42

(1) If planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is—

(a) not itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or

(b) required to complete or enable the use or operation of any part of the development authorised by this Order,

then the construction, maintenance, use or operation of that development under the terms of the planning permission does not constitute a breach of the terms of this Order.

(2) Development consent granted by this Order is to be deemed as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as operational land for the purposes of that Act) of the 1990 Act.

(3) Development consent granted by this Order is to be treated as planning permission in accordance with Part 3 (control over development) of the 1990 Act for the purposes of regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012[^f00066] and the Forestry Act 1967[^f00067].

Application of landlord and tenant law

43

(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 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 prejudices the operation of any agreement to which this article applies.

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

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

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

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

Defence to proceedings in respect of statutory nuisance

44

(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990[^f00068] in relation to a nuisance falling within paragraphs (c), (d), (e), (fb), (g) or (h) of section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2) of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the construction of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974[^f00069]; or

(ii) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or

(b) the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) For the purposes of paragraph (1), compliance with the controls and measures described in the Code of Construction Practice approved under paragraph 11 of Schedule 2 to this Order will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.

(3) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Protective provisions

45

Schedule 8 (protective provisions) to the Order has effect.

Deemed marine licence

46

The marine licence set out in Schedule 9 (deemed marine licence) is deemed to have been issued under Part 4 of the Marine and Coastal Access Act 2009 for the licensed activities set out in Part 2, and subject to the licence conditions set out in Parts 3 and 4, of that licence.

Certification of documents, etc.

47

(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of all documents and plans referred to in Schedule 10 (documents and plans to be certified) to this Order for certification that they are true copies of those documents.

(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).

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

Service of notices

48

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

(a) by post;

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

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

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978[^f00070] 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 that 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 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 the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

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

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

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

(d) in a form sufficiently permanent to be used for subsequent reference.

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

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

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

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

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

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

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

Arbitration

49

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

(2) For the avoidance of doubt, any matter for which the consent or approval of the Secretary of State or the MMO is required under any provision of this Order will not be subject to arbitration.

Procedures in relation to approvals, etc., under Schedule 2

50

(1) Where an application or request is submitted to the relevant planning authority, a highway authority, a street authority or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any other the provisions of the Order such consent, agreement or approval, if given, must be given in writing, such agreement not to be unreasonably withheld.

(2) Part 2 of Schedule 2 (procedure for discharge of requirements) has effect in relation to all consents, agreements or approvals granted, refused or withheld in relation to the requirements set out in Part 1 of Schedule 2, and any document referred to in any requirement in that Part 1.

(3) The procedure set out in Part 2 of Schedule 2 has effect in relation to any other consent, agreement or approval required under 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.

No double recovery

51

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

Guarantees in respect of payment of compensation

52

(1) The undertaker must not begin to exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any Order land unless it has first put in place either—

(a) a guarantee and the amount of that guarantee approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2); or

(b) an alternative form of security and the amount of that security approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2).

(2) The provisions are—

(a) article 25 (compulsory acquisition of land);

(b) article 28 (private rights);

(d) article 34 (temporary use of land for maintaining the authorised development); and

(e) article 35 (statutory undertakers).

(3) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2) is to be treated as enforceable against the guarantor or person providing the alternative form of 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) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.

Crown rights

53

(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 His 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 His 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 His 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.

Offshore ornithology compensation provisions

54

Schedule 11 (ornithology compensation measures) to the Order has effect.

Harbour seal compensation measures

55

Schedule 12 (harbour seal compensation measures) to the Order has effect.

SCHEDULE 1 — AUTHORISED DEVELOPMENT

A nationally significant infrastructure project as defined in section 14(1)(a) (nationally significant infrastructure projects: general) and section 15 (generating stations) of the 2008 Act being a generating station with a capacity of over 50 megawatts but below 300 megawatts and associated development under sections 115(1) and (2) (development for which development consent may be granted) of the 2008 Act comprising all or part of—

In the Borough of Boston, Lincolnshire

Work No 1 — Works to construct a power generation facility—

(a) Work No. 1A — an energy recovery facility with a capacity to process up to 1,200,000 tonnes of waste refuse derived fuel per calendar year including—

(i) fuel reception and storage facilities consisting of a bale shredding facility, solid fuel storage bunker, cranes and handling equipment;

(ii) up to three waste processing lines, each line including a feed hopper, ram feed, air cooled moving grates, a boiler and steam systems, combustion air systems and flue gas treatment facilities including air pollution control residues and reagent storage silos and tanks;

(iii) associated induced fans and emissions control monitoring systems per line;

(iv) one emission stack per line;

(v) dedicated steam turbine connected to each line;

(vi) integrated protection system and uninterruptable power supplies;

(vii) air cooled condenser array;

(viii) connection from exhaust stacks from lines one and three to Work No. 1C for capture of carbon dioxide and return connection for waste exhaust gases; and

(ix) conveyors to transfer bottom ash and boiler ash to ash processing facility (Work No. 1B).

(b) Work No. 1B — an ash processing building with a capacity to process up to 200,000 tonnes of bottom ash and boiler ash per calendar year including—

(i) ash storage facilities to receive ash from Work No. 1A;

(ii) ash processing facilities to prepare ash for transfer to the lightweight aggregates facility (Work No. 2);

(iii) ferrous magnet system and storage for separated ferrous material;

(iv) solar photovoltaic panels on all or part of Work No.1B building roof including switchgear, inverters, transformers and permanent equipment for maintenance to deliver power to the authorised development; and

(v) conveyor system for transfer of processed ash and air pollution control residues to Work No. 2.

(c) Work No. 1C — two carbon dioxide processing units, consisting of a carbon dioxide processing unit, storage tanks, vehicle connection points, return connection to stack for lines one and three.

Work No. 2 — Works to construct a lightweight aggregate manufacturing facility with a capacity to process up to 300,000 tonnes of aggregate per calendar year including—

(a) storage silo facilities for lightweight aggregate processing lines;

(b) four processing lines; each line including a feed hopper, mixer units, trefoil kiln, and flue gas treatment facilities including air pollution control residues and reagent storage silos and tanks;

(d) two filter banks and two emission stacks;

(e) storage silos for storing manufactured lightweight aggregate pellets; and

(f) sealed storage pits, drainage and sump facilities for storing up to 190,000 tonnes of imported clay per calendar year, and up to 10,000 tonnes of sediment dredged from The Haven during maintenance dredging activities per calendar year for use in the lightweight aggregates manufacturing process.

Work No. 3 — Works to construct an electrical substation—

(a) Work No. 3A — on-site below ground trenches, ducting and jointing pits; and above ground structures including switchgear, and transformer, busbar sections, integrated protection scheme and uninterruptable power supplies; connection from power generation turbine facility (Work No 1A); and

(b) Work No. 3B — construction of a new pylon; and connection to 132kV pylon for export of power from the power generation facility (Work No. 1A); and incoming connection point from the grid.

Work No. 4 — Works to construct a wharf facility with a capacity to receive up to 1,200,000 tonnes of waste refuse derived fuel and imported clay and sediment, and export up to 300,000 tonnes lightweight aggregates per calendar year including—

(a) 400m long wharf structure forming 7.2m AOD. flood defence line containing up to three berthing points and scour protection;

(b) cranes and refuse derived fuel bale handling equipment;

(c) two conveyor lines (both partially open for loading, then covered sections) to transfer waste refuse derived fuel bales to Works No. 1A, including thermal cameras;

(d) wharf ramp structure;

(e) bale contingency storage area;

(f) re-baling facility;

(g) bale quarantine area;

(h) conveyor and handling equipment for loading ships with manufactured aggregate;

(i) shore to ship power facility; and

(j) storage areas for mobile plant equipment, including mobile cranes and forklift trucks.

Work No. 5 — Works to construct or install supporting buildings and facilities, including—

(a) diesel storage tanks;

(b) process effluent storage tank;

(d) fire water tank(s), pump room(s) and fire protection facilities;

(e) control rooms;

(f) administration block(s) including welfare facilities;

(g) distributed control system;

(h) workshop(s) and associated stores;

(i) machinery storage facilities;

(j) security gatehouses and barriers;

(k) weighbridges;

(l) heavy goods vehicle holding area;

(m) storage for on-site mobile equipment;

(n) external fuel container storage area;

(o) visitor centre;

(p) 33kv transformers to distribute power from Work No. 3; and

(q) emergency stand-by generator(s).

Work No. 6 — Works to construct and install supporting infrastructure, including—

(a) pipework (including flow/return pipework), cables, telecommunications, other services and associated infrastructure;

(b) site drainage, waste management, water, wastewater, other services and associated infrastructure;

(c) new or alteration to accesses, a vehicular access road and internal vehicular access road, vehicle turning, waiting and parking areas and site pedestrian access routes;

(d) a footbridge on Boston Public Footpath 14 between OSGR TF3374542872 to OSGR TF3400742238 and OSGR TF3400742238 to OSGR TF3417242188 to allow safe pedestrian passage over certain site roads; and

(e) operational vehicle parking.

Work No. 7 — Works to construct temporary construction compounds including—

(a) hard standing;

(b) vehicle parking;

(d) new or alteration to accesses;

(e) concrete batching plant, generators, aggregates storage area and temporary aggregates conveyor from the wharf to the concrete batching plant; and

(f) construction areas.

In connection with and in addition to Work Nos. 1, 2, 3, 4, 5, 6 and 7 to the extent that it does not otherwise form part of those Work Nos., further associated development within the Order limits including—

(a) lighting infrastructure, including perimeter lighting columns;

(b) fencing, boundary treatment and other means of enclosure;

(d) CCTV and other security apparatus;

(e) surface and foul water drainage facilities;

(f) potable water supply;

(g) new telecommunications and utilities apparatus and connections;

(h) hard and soft landscaping;

(i) biodiversity enhancement measures and environmental mitigation measures;

(j) works permanently to alter the position of existing telecommunications and utilities apparatus and connections;

(k) works for the protection of buildings and land; and

(l) site establishment and preparation works, including site clearance (including temporary fencing and vegetation removal), earthworks (including soil stripping and storage and site levelling) and excavations, the creation of temporary construction access points and the temporary alteration of the position of services and utilities apparatus and connections,

and such other buildings, structures, works or operations, and modifications to, or demolition of, any existing buildings, structures or works as may be necessary or expedient for the purposes of or in connection with the construction, operation and maintenance of the works in this Schedule 1, but only within the Order limits and insofar as they are unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

SCHEDULE 2 — REQUIREMENTS

PART 1 — REQUIREMENTS

Interpretation

1

(1) In this Schedule—

“biodiversity units” means the product of the size of an area, and the distinctiveness and condition of the habitat it comprises to provide a measure of ecological value (as assessed using the Defra biodiversity off–setting metric);

“biodiversity off-setting scheme” means a scheme which will deliver biodiversity enhancements which must not be less than the off–setting value;

“Defra” means the Department for Environment, Food and Rural Affairs;

“Defra biodiversity off–setting metric” means the mechanism published by Defra to quantify impacts on biodiversity, which allows biodiversity losses and gains affecting different habitats to be compared and ensures offsets are sufficient to compensate for residual losses of biodiversity;

“heavy commercial vehicle” has the meaning given by section 138 (meaning of “heavy commercial vehicle”) of the 1984 Act[^f00071];

“mean high water springs” or “MHWS” means the highest level which spring tides reach on average over a period of time;

“off-setting value” means the net biodiversity impact of the authorised development, calculated using the Defra biodiversity off–setting metric, measured in biodiversity units; and

“wharf outage” means circumstances caused by factors beyond the undertaker’s control in which waste, clay or sediment has not or could not be received at Work No. 4 for a period in excess of four consecutive days.

(2) References in this Schedule to part of the authorised development are to be construed as references to stages, phases or elements of the authorised development in respect of which an application is made by the undertaker under this Schedule, and references to commencement of part of the authorised development in this Schedule are to be construed accordingly.

(3) References to details or schemes approved under this Schedule are to be construed as references to details or schemes approved in relation to a specified part of the authorised development, as the case may be.

Time limits

2

(1) The authorised development must commence within 5 years of the date on which this Order is made.

(2) The authorised development must not commence unless the undertaker has given the relevant planning authorities one month’s notice of its intention to commence the authorised development.

Detailed design approval

3

(1) The authorised development must be designed in detail and carried out in accordance with the design principles contained in the design and access statement and the preliminary scheme design shown on the indicative generating station plans and indicative wharf plans, unless otherwise agreed in writing by the relevant planning authority, following consultation with the Environment Agency to the extent that it relates to matters relevant to its function, provided that the relevant planning authority is satisfied that any amendments to those documents showing departures from the preliminary scheme design would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(2) Where amended details are approved by the relevant planning authority under sub-paragraph (1), those details are deemed to be substituted for the corresponding indicative generating station plans and indicative wharf plans the undertaker must make those amended details available in electronic form for inspection by members of the public. The amended details must be implemented as approved.

Detailed design (appearance)

4

(1) In relation to any part of the authorised development comprised in Work Nos. 1, 2, 3, 4 and 5 no development of that part may commence until details of the external appearance, including the colour, materials and surface finishes, of all new permanent buildings and structures have been submitted to and approved by the relevant planning authority.

(2) The authorised development must be carried out in accordance with the approved details.

Parameters of authorised development

5

The elements of the authorised development listed in column (1) of the table below (design parameters) must not exceed the maximum dimensions and levels and, where applicable, the minimum dimensions, set out in relation to that element in columns (3) to (6) of that table.

(1) Element of authorised development	(2) Work No.	(3) Maximum length (metres)	(4) Maximum width (metres)	(5) Maximum height (metres) from ground level unless stated	(6) Minimum height (metres) from ground level unless stated
Main energy recovery facility buildings (3 No. units, dimensions per unit)	1A	105	35	44	–
Energy recovery stacks (3 No.)	1A(a)(iv)	–	–	80	80
Turbine building	1A(a)(v)	53	40	20	–
Air cooled condenser array	1A(a)(vii)	65	45	30	–
Ash processing building	1B	70	30	32	–
Carbon dioxide recovery building	1C	30	20	12	–
Lightweight aggregates main building	2	75	40	44	–
Lightweight aggregates storage silos	2(a), 2(e)	6	6	25	–
Lightweight aggregates stacks (2 No.)	2(d)	–	–	80	80
Electrical substation	3	95	35	–	–

Wharf structure	4(a)	400	–	–	7.2 (AOD)
Supporting buildings and facilities (control room, visitor centre, workshops)	5	40	20	15	–

Landscape and ecological mitigation strategy

6

(1) No part of the authorised development may commence until a landscape and ecological mitigation strategy for that part has been submitted to and approved by the relevant planning authority, following consultation with the Environment Agency, the relevant statutory nature conservation body, Lincolnshire Wildlife Trust and the Royal Society for the Protection of Birds.

(2) The relevant planning authority’s approval of the landscape and ecological mitigation strategy is restricted to those parts of the strategy that relate to the parts of the authorised development that are above MHWS, with the remainder the strategy approved by the MMO under condition 18 of Schedule 9 (deemed marine licence).

(3) The landscape and ecological mitigation strategy approved under sub-paragraph (1) must be substantially in accordance with the outline landscape and ecological mitigation strategy.

(4) The landscape and ecological mitigation strategy approved under sub-paragraph (1) must include details of—

(a) mitigation measures required to protect protected habitats and species, non–statutory designated sites and other habitats and species of principal importance during the construction of the authorised development;

(b) mitigation measures required to protect protected habitats and species, non–statutory designated sites and other habitats and species of principal importance during the operation of the authorised development;

(c) the results of the Defra biodiversity off-setting metric together with the off-setting value required, the nature of such off-setting and evidence that the off–setting value provides for the required biodiversity compensation, risk factors (including temporal lag) and long term management and monitoring;

(d) the site or sites on which the compensation off–setting required pursuant to (c) will be provided together with evidence demonstrating that the site or sites has/have been chosen in accordance with the prioritisation set out in the outline landscape and ecological mitigation strategy;

(e) certified copies of the completed legal agreements securing the site or sites identified in (d) to enable enactment of the biodiversity off-setting scheme and the biodiversity off–setting management and monitoring plan as approved in the landscape and ecological mitigation strategy;

(f) any hard and soft landscaping to be incorporated within Work Nos. 1, 2, 3, 4, 5 and 6 including location, number, species, size of any planting and the management and maintenance regime for such landscaping; and

(g) an air quality deposition monitoring plan that must be substantially in accordance with the outline air quality deposition monitoring plan and must include the final numbers and locations of deposition monitoring locations, as agreed with the relevant statutory nature conservation body and the Environment Agency.

(5) The landscape and ecological mitigation strategy must be implemented as approved under sub-paragraph (1).

Archaeology

7

(1) No part of Work Nos. 1, 2, 3, 4, 5 and 6 may commence until for that part a written scheme of investigation, reflecting the relevant mitigation measures set out in the outline written scheme of investigation has been submitted to and approved by the relevant planning authority, following consultation with Historic England.

(2) The scheme approved under sub-paragraph (1) must—

(a) identify areas where field work or a watching brief are required and the measures to be taken to protect, record or preserve any significant archaeological remains that may be found; and

(b) detail the measures for post-field work processing, assessment analysis and reporting of the results of archaeological work and the deposition of the archive.

(3) Works Nos. 1, 2, 3, 4, 5 and 6 must be carried out in accordance with the scheme referred to in sub-paragraph (1), unless otherwise agreed by the relevant planning authority.

Highway access

8

(1) No part of Work No. 7 may commence until written details of the siting, design and layout of any new temporary means of access to a highway in that part, or any alteration to an existing means of access to a highway in that part has been submitted to and approved by the relevant planning authority, following consultation with the relevant highway authority.

(2) The highway accesses must be constructed or altered as approved under sub-paragraph (1).

(3) The undertaker must not exercise the power in article 14(1) (permanent stopping up of streets) unless and until a plan showing the layout for the termination of the street (as specified in columns (1) and (2) of Schedule 6) has been submitted to and approved by the relevant planning authority.

Surface and foul water drainage

9

(1) No part of the authorised development may commence until for that part a surface and foul water drainage strategy has been submitted to and approved by the relevant planning authority, following consultation with the Environment Agency, lead local flood authority, Anglian Water Services Limited and relevant internal drainage board to the extent that it relates to matters relevant to their functions.

(2) The strategy submitted for approval under sub-paragraph (1) must be substantially in accordance with the outline surface and foul water drainage strategy.

(3) The surface and foul water drainage strategy must be implemented as approved under sub-paragraph (1) and maintained throughout the operation of the authorised development unless otherwise agreed with the relevant planning authority.

Contamination

10

(1) No part of the authorised development may commence until—

(a) intrusive ground investigations have been carried out for the purpose of assessing ground conditions; and

(b) a scheme to deal with the contamination of land, including groundwater, and ground gases which are likely to cause significant harm to persons or pollution of controlled waters or the environment, has, for that part, been submitted to and approved by the relevant planning authority.

(2) The scheme must include a risk assessment, supported by site investigation data, to identify the extent of any contamination and the remedial measures to be taken to render the land fit for its intended purpose.

(3) With respect to ground gases, the risk assessment required under sub-paragraph (2) must adopt the source-pathway-receptor principle to identify plausible contaminant linkages and take into account potential migration of off-site ground gases.

(4) The authorised development, including any remediation, must be carried out in accordance with the approved scheme unless otherwise agreed with the relevant planning authority.

(5) Should any remediation be required a verification report demonstrating the completion of works set out in the approved scheme and the effectiveness of the remediation must be submitted to, and approved, by the relevant planning authority prior to the date of final commissioning.

(6) The verification report submitted for approval under sub-paragraph (5) must include results of sampling and monitoring carried out in accordance with the remediation strategy to demonstrate that the site remediation criteria have been met along with any long-term post-remediation monitoring requirements.

Code of construction practice

11

(1) No part of the authorised development may commence until a code of construction practice for that part has been submitted to and approved by the relevant planning authority, following consultation with the Environment Agency and the relevant statutory nature conservation body to the extent that it relates to matters relevant to their functions.

(2) The code of construction practice submitted for approval must be substantially in accordance with the outline code of construction practice to the extent that it is applicable to that part and must reflect the mitigation measures set out in the register of environmental actions and commitments.

(3) The code of construction practice submitted under sub-paragraph (1) must include the following—

(a) the construction and phasing programme;

(b) liaison procedures;

(d) an air quality and dust management plan detailing air quality and dust monitoring and management measures during construction that must be substantially in accordance with the outline air quality and dust management plan;

(e) construction noise and vibration monitoring and management plan;

(f) a site waste management plan detailing sustainable site waste management measures;

(g) a soil management plan detailing measures to ensure the temporary storage of soils and other material of value will be in accordance with best practice;

(h) details of screening and fencing to be installed during construction;

(i) a materials management plan detailing measures to ensure the safe storage of excavated materials during construction;

(j) a pollution prevention and incident response plan detailing measures to prevent and control the spillage of oil, chemicals and other potentially harmful liquids;

(k) a health and safety plan, including details of how health and safety risks are to be identified and managed during construction;

(l) a surface and foul water drainage plan including measures for the protection of surface and groundwater during construction;

(m) an artificial light emissions management plan;

(n) measures to ensure the restoration of site following completion of construction; and

(o) appropriate procedures to address any unexploded ordnance that may be encountered.

(4) All construction works must be undertaken in accordance with the approved code of construction practice.

Construction hours

12

(1) Construction works relating to the authorised development must not take place on Sundays, bank holidays nor otherwise outside the hours of 0800 to 2000 hours on Monday to Saturday (with the option of 0700 to 1900).

(2) The restrictions in sub-paragraph (1) do not apply to construction works where these—

(a) are carried out within existing buildings or buildings constructed as part of the authorised development;

(b) are carried out with the prior approval of the relevant planning authority;

(d) are associated with slip form working.

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

Construction traffic management plan

13

(1) No part of the authorised development may commence until a construction traffic management plan for that part has been submitted to and approved by the relevant planning authority, following consultation with the relevant highway authority, Boston Borough Council and the relevant statutory nature conservation body in relation to any proposals under sub-paragraph (2)(d) only.

(2) A construction traffic management plan must be substantially in accordance with the outline construction traffic management plan and must include the following (as applicable for the part of the authorised development to which the construction traffic management plan relates)—

(a) construction vehicle routing plans in respect of both workers and deliveries;

(b) proposals for the scheduling and timing of movements of delivery vehicles including details of abnormal indivisible loads;

(d) where practicable, proposals for temporary diversions of any public rights of way;

(e) measures to ensure the protection of users of any footpath within the Order limits which may be affected by the construction of the authorised development;

(f) proposals for the management of junctions to and crossings of highways and other public rights of way;

(g) a construction logistics plan;

(h) a procedure for reviewing and updating the construction traffic management plan;

(i) a construction worker travel plan, including details of the likely number of worker vehicle movements and the management of workforce parking; and

(j) appropriate procedures to provide for a vehicle booking management system.

(3) The construction traffic management plan submitted pursuant to sub–paragraphs (1) and (2) must be accompanied by a statement and associated junction appraisals (as defined in the outline construction traffic management plan) demonstrating how the likely construction traffic impacts identified in the environmental statement are addressed through the measures contained in the construction traffic management plan.

(4) The construction traffic management plan submitted pursuant to sub–paragraphs (1) and (2) that relates to Work Nos. 1, 2, 3, 4, 5, 6 and 7 must be accompanied by a pre-condition highway survey (as defined in the outline construction traffic management plan).

(5) The construction traffic management plan and any updated construction traffic management plan submitted following any review under sub-paragraph (2)(h) must be implemented as approved by the relevant planning authority.

Flood risk emergency plan

14

(1) No part of the authorised development may commence until a flood risk emergency plan has been submitted to and approved by the relevant planning authority, following consultation with the Environment Agency, Black Sluice Internal Drainage Board and the Lead Local Flood Authority.

(2) The flood risk emergency plan must include—

(a) procedures to receive flood warnings (including communication lines to cover shift patterns and / or staff leave), and closure of or evacuation of the authorised development with sufficient lead time to ensure no personnel or vehicles are left within the Order limits during times of a flood warning; and

(b) identification of areas of emergency refuge to be located above the modelled breach flood depths.

(3) The flood risk emergency plan must be implemented as approved by the relevant planning authority.

Phasing of construction and commissioning of Work Nos. 1 and 2

15

(1) Subject to sub–paragraph (2), no part of the authorised development may commence until a phasing programme setting out the commencement of construction and the anticipated start of commissioning and the anticipated date of final commissioning for each of Work Nos. 1 and 2 has been submitted to and approved by the relevant planning authority.

(2) The phasing programme must provide for the anticipated date of final commissioning of Work Nos. 1 and 2 as soon as reasonably practicable. The phasing programme must be implemented as approved by the relevant planning authority.

Operational lighting scheme

16

(1) Prior to the commissioning of any part of Work Nos. 1, 2, 3, 4 and 5 a written scheme for the management and mitigation of operational external artificial light emissions for that part must be submitted to and approved by the relevant planning authority.

(2) The written scheme must be substantially in accordance with the outline lighting strategy.

(3) The scheme for the management and mitigation of operational external artificial light emissions must be implemented as approved under sub-paragraph (1).

Operational vehicle movements

17

(1) Except in the event of a wharf outage, the number of two-way heavy commercial vehicle movements must not exceed a maximum of 30 two-way vehicle movements per day except in circumstances where, following consultation with the relevant highway authority and Boston Borough Council, the relevant planning authority is satisfied that additional vehicle movements would not give rise to any materially new or materially different highway safety impacts or environmental effects in comparison with those reported in the environmental statement.

(2) Waste must not be delivered by road to Work No. 1A except in the event of a wharf outage or in circumstances where, following consultation with the relevant highway authority and Boston Borough Council, the relevant planning authority is satisfied that such delivery of waste by road would not give rise to any materially new or materially different highway safety impacts or environmental effects in comparison with those reported in the environmental statement.

(3) Clay and sediment must not be delivered by road to Work No. 2 or lightweight aggregates exported by road from Work No. 2 except in the event of a wharf outage or in circumstances where, following consultation with the relevant highway authority and Boston Borough Council, the relevant planning authority is satisfied that such delivery or export by road would not give rise to any materially new or materially different highway safety impacts or environmental effects in comparison with those reported in the environmental statement.

(4) Prior to the date of final commissioning, an operational traffic management plan for that part must be submitted to and approved by the relevant planning authority, following consultation with the relevant highway authority and Boston Borough Council.

(5) The operational traffic management plan must include—

(a) an operational worker travel plan that includes measures to encourage the use of sustainable modes of transport by employees;

(b) measures to manage the routing and number of heavy commercial vehicles during operation;

(d) provision as to the responsibility for, and timescales of, the implementation of those measures; and

(e) a monitoring and review regime.

(6) The operational traffic plan must be implemented as approved under sub-paragraph (4).

Waste hierarchy scheme

18

(1) Prior to the commissioning of any part of Work No. 1A, the undertaker must submit to the relevant planning authority for approval a scheme, which sets out arrangements for maintenance of the waste hierarchy in priority order and which aims to minimise recyclable and reusable waste received at the authorised development during the commissioning and operational period of the authorised development (the “waste hierarchy scheme”).

(2) The waste hierarchy scheme must include details of—

(a) the type of information that must be collected and retained on the sources of the residual waste after recyclable and reusable waste has been removed;

(b) the arrangements that must be put in place for ensuring that as much reusable and recyclable waste as is reasonably possible is removed from waste to be received at the authorised development, including contractual measures to encourage as much reusable and recyclable waste being removed as far as possible;

(c) the arrangements that must be put in place for ensuring that commercial suppliers of residual waste operate a written environmental management system which includes establishing a baseline for recyclable and reusable waste removed from residual waste and specific targets for improving the percentage of such removed reusable and recyclable waste;

(d) the arrangements that must be put in place for suspending and/or discontinuing supply arrangements from commercial suppliers who fail to retain or comply with any environmental management systems;

(e) the arrangements that must be put in place for the provision of an annual waste composition analysis undertaken by the undertaker, with the findings submitted to the relevant planning authority within one month of the sampling being undertaken; and

(f) the form of records that must be kept for the purpose of demonstrating compliance with (a) to (e) and the arrangements in place for allowing inspection of such records by the relevant planning authority.

(3) The waste hierarchy scheme must be implemented as approved under sub-paragraph (1).

Control of operational noise

19

(1) Prior to commissioning of any part of Works Nos. 1, 2, 3 and 4 a written noise monitoring scheme must be submitted to and approved by the relevant planning authority, such scheme must specify—

(a) each location from which noise is to be measured;

(b) the method of noise measurement, which must be in accordance with British Standard 4142:2014 +A1:2019;

(c) the maximum permitted levels of noise at each agreed monitoring location which must not exceed the defined limits to demonstrate compliance with government and local policy on noise;

(d) provision requiring the undertaker to take noise measurements as soon as possible following a reasonable request by the relevant planning authority and to submit the measurements to the relevant planning authority as soon as they are available; and

(e) a definition of the circumstances that constitute an emergency for the purposes of sub-paragraphs (2)(a), (3) and (5).

(2) The level of noise at each monitoring location must not exceed the maximum permitted level specified for that location in the scheme, except—

(a) in the case of an emergency (as defined in the noise monitoring scheme);

(b) with the prior approval of the relevant planning authority; or

(c) as a result of steam purging or the operation of emergency pressure relief valves or similar equipment of which the undertaker has given notice in accordance with sub–paragraph (3).

(3) Except in the case of an emergency, the undertaker must give the relevant planning authority 48 hours’ notice of any proposed steam purging or operation of emergency pressure relief valves or similar equipment.

(4) So far as reasonably practicable, steam purging and the operation of emergency pressure relief valves or similar equipment may only take place—

(a) between 0900 and 1700 hours on weekdays (excluding bank holidays); and

(b) between 0900 and 1300 hours on Saturdays (excluding bank holidays).

(5) Where the level of noise at a monitoring location exceeds the maximum permitted level specified for that location in the approved scheme because of an emergency—

(a) the undertaker must, as soon as possible and in any event within two business days of the beginning of the emergency, submit to the relevant planning authority a statement detailing—

(i) the nature of the emergency;

(ii) why it is necessary for the level of noise to have exceeded the maximum permitted level;

(b) if the undertaker expects the emergency to last for more than 24 hours, it must inform local residents and businesses affected by the level of noise at that location of—

(i) the reasons for the emergency; and

(ii) how long it expects the emergency to last.

Notice of start of commissioning and notice of date of final commissioning

20

(1) Where practicable, notice of the intended start of commissioning of Work No.1A must be given to the relevant planning authorities prior to such start and in any event within seven days from the date that commissioning is started.

(2) Within seven days of completing final commissioning of Work No. 1A, the undertaker must provide the relevant planning authorities with notice of the date upon which such commissioning was duly completed.

Combined heat and power

21

(1) On the date that is 12 months after the date of final commissioning for Work No. 1A, the undertaker must submit to the relevant planning authority for its approval, following consultation with Boston Borough Council, a report (“the CHP review”) updating the combined heat and power assessment.

(2) The CHP review submitted and approved must—

(a) consider whether opportunities reasonably exist for the export of heat from numbered Work 1A; and

(b) include a list of actions (if any) that the undertaker is reasonably required to take (without material additional cost to the undertaker) to increase the potential for the export of heat from Work No. 1A.

(3) The undertaker must take such actions as are included, within the timescales specified, in the approved CHP review.

(4) On each date during the operation of Work No. 1A that is five years after the date on which it last submitted the CHP review or a revised CHP review to the relevant planning authority, a revised CHP review must be submitted to and approved by the relevant planning authority, following consultation with Boston Borough Council.

(5) Sub-paragraphs (2) and (3) apply in relation to a revised CHP review submitted under sub-paragraph (4) in the same way as they apply in relation to the CHP review submitted under sub-paragraph (1).

Decommissioning

22

(1) Within 24 months of the permanent cessation of the operation of Work Nos. 1 and 2 details of a scheme for the restoration and aftercare of the land for Work Nos. 1. 2, 3, 4 (excluding any parts of Work No. 4 that are covered by the decommissioning scheme approved under the deemed marine licence), 5 and 6 must be submitted to and approved by the relevant planning authority.

(2) The scheme must include details of structures and buildings to be demolished or retained, details of the means of removal of materials following demolition, phasing of demolition and removal, details of restoration works and phasing thereof.

(3) The scheme as approved under sub-paragraph (1) must be implemented in accordance with the phasing set out therein.

Amendments to approved details

23

(1) With respect to the documents certified under article 47 (certification of documents, etc.), the parameters specified in the table in paragraph 5 of this Schedule and any other plans, details or schemes which require approval by the relevant planning authority pursuant to any requirement (together “Approved Documents, Plans, Parameters, Details or Schemes”), the undertaker may submit to the relevant planning authority for approval, following consultation by the undertaker with Lincolnshire County Council, any amendments to the Approved Documents, Plans, Parameters, Details or Schemes and following any such approval by the relevant planning authority the Approved Documents, Plans, Parameters, Details or Schemes are to be taken to include the amendments approved by the relevant planning authority in accordance with this paragraph.

(2) Approval under sub-paragraph (1) for the amendments to Approved Documents, Plans, Parameters, Details or Schemes must not be given except where it has been demonstrated to the satisfaction of the relevant planning authority that the subject matter of the approval sought is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

Electricity generation cap

24

(1) The authorised development must not generate more than 300 megawatts unless otherwise agreed by the relevant planning authority provided that the relevant planning authority is satisfied, following consultation with the relevant statutory nature conservation body to the extent that it relates to matters relevant to its functions, that any increase would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(2) The undertaker must keep records for the purpose of demonstrating compliance with sub-paragraph (1) and must submit them to the relevant planning authority on an annual basis.

(3) On receipt of a written request to view the records by the relevant planning authority these records must be made available for inspection within seven days of such a request.

(4) References in Schedule 1 (authorised development) to 300 megawatts are to be construed as references to any electricity cap approved under sub-paragraph (1).

Tonnage caps

25

(1) The total amount of—

(a) waste derived fuel received at Work No. 1A and Work No. 4 must not exceed 1,200,000 tonnes per calendar year;

(b) bottom ash and boiler ash processed at Work No. 1B must not exceed 200,000 tonnes per calendar year; and

unless otherwise agreed by the relevant planning authority provided that the relevant planning authority is satisfied, following consultation with the relevant statutory nature conservation body to the extent that it relates to matters relevant to its functions, that any increase would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(2) The undertaker must keep records for the purpose of demonstrating compliance with sub-paragraph (1) and must submit them to the relevant planning authority on an annual basis.

(3) On receipt of a written request to view the records by the relevant planning authority these records must be made available for inspection within seven days of such a request.

(4) References in Schedule 1 (authorised development) to any tonnage amount are to be construed as references to any tonnage amount approved under sub-paragraph (1).

PART 2 — PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under Part 1

26

(1) Where an application has been made to a relevant planning authority for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order, the relevant planning authority must give notice to the undertaker of its decision on the application within a period of eight weeks beginning with—

(a) the day immediately following that on which the application is received by the relevant planning authority;

(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 27 (further information); or

(2) Subject to sub-paragraph (3), in the event that the relevant planning authority does not determine an application within the period set out in sub-paragraph (1), the relevant planning authority is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

(3) In determining any application made to the relevant planning authority for any consent, agreement or approval required by a requirement contained in Part 1 of this Schedule, the relevant planning authority may—

(a) give or refuse its consent, agreement or approval; or

(b) give its consent, agreement or approval subject to reasonable conditions,

and where consent, agreement or approval is refused or granted subject to conditions the relevant planning authority must provide its reasons for that decision with the notice of its decision.

Further information

27

(1) In relation to any part of an application made under this Schedule, the relevant planning authority has the right to request such further information from the undertaker as it considers necessary to enable it to consider the application.

(2) If the relevant planning authority considers that further information is necessary and the requirement concerned contained in Part 2 of this Schedule does not specify that consultation with a consultee is required, the relevant planning authority must, within ten business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(3) If the requirement concerned contained in Part 1 of this Schedule specifies that consultation with a consultee is required, the relevant planning authority must issue the consultation to the consultee within five business days of receipt of the application, and notify the undertaker in writing specifying any further information requested by the consultee within five business days of receipt of such a request.

(4) If the relevant planning authority does not give the notification within the period specified in sub-paragraph (2) or (3) it (and the consultee, as the case may be) it is deemed to have sufficient information to consider the application and is not entitled to request further information without the prior agreement of the undertaker.

Fees

28

(1) Where an application is made to the relevant planning authority for written consent, agreement or approval in respect of a requirement, the fee prescribed under regulation 16(1)(b) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012[^f00072] (as may be amended or replaced from time to time A) is to apply and must be paid to the relevant planning authority for each application.

(2) Any fee paid under this Schedule must be refunded to the undertaker within four weeks of—

(a) the application being rejected as invalidly made; or

(b) the relevant planning authority failing to determine the application within the decision period as determined under paragraph 26(1),

unless within that period the undertaker agrees, in writing, that the fee is to be retained by the relevant planning authority and credited in respect of a future application.

Register of requirements

29

(1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in an electronic form suitable for inspection by members of the public a register of those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the relevant planning authority.

(2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the relevant planning authority has been applied for or given, providing an electronic link to any document containing any approved details.

(3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.

Appeals to the Secretary of State

30

(1) The undertaker may appeal to the Secretary of State if—

(a) the relevant planning authority refuses an application for any consent, agreement or approval required by—

(i) a requirement and any document referred to in any requirement in Part 1 of this Schedule; or

(ii) any other consent, agreement or approval required under this Order, or grants it subject to conditions to which the undertaker objects;

(b) the relevant authority does not give notice of its decision to the undertaker within the period specified in paragraph 26(1) or grants it subject to conditions;

(c) having received a request for further information under paragraph 27(1) the undertaker considers that either the whole or part of the specified information requested by the relevant planning authority is not necessary for consideration of the application;

(d) having received any further information requested, the relevant 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; or

(e) the relevant planning authority issues a notice further to sections 60 or 61 of the Control of Pollution Act 1974[^f00073].

(2) The appeal process applicable under sub-paragraph (1) is as follows—

(a) any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination, or (where no determination has been made) the expiry of the decision period as determined under paragraph 26;

(b) the undertaker must submit to the Secretary of State a copy of the application submitted to the relevant planning authority and any supporting documents which the undertaker may wish to provide (“the appeal documents”);

(c) the undertaker must on the same day provide copies of the appeal documents to the relevant planning authority and the requirement consultee (if applicable);

(d) as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person to consider 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 their attention should be sent;

(e) the relevant planning authority and the requirement consultee (if applicable) must submit any written representations in respect of the appeal to the appointed person within 10 business days beginning with the first day immediately following the date on which the appeal parties are notified of the appointment of the appointed person 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;

(f) the appeal parties must make any counter-submissions to the appointed person within 10 business days beginning with the first day immediately following the date of receipt of written representations pursuant to sub-paragraph (e); and

(g) the appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable.

(3) In the event that the appointed person considers that further information is necessary to enable the appointed person to consider the appeal, the appointed person must as soon as practicable 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.

(4) Any further information required under sub-paragraph (3) must 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.

(5) The appeal parties may submit written representations to the appointed person concerning matters contained in the further information.

(6) Any such representations must be submitted to the appointed person and made available to all appeal parties within 10 business days of the date mentioned in sub-paragraph (3).

(7) 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 relevant planning 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.

(8) The appointed person may proceed to a decision on an appeal taking into account such written representations as have been sent within the relevant time limits and in the sole discretion of the appointed person such written representations as have been sent outside the relevant time limits.

(9) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.

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

(11) Any consent, agreement or approval given by the appointed person pursuant to this paragraph is deemed to be an approval for the purpose of Part 1 of this Schedule as if it had been given by the relevant planning authority.

(12) The relevant planning authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) does not affect or invalidate the effect of the appointed person’s determination.

(13) Except where a direction is given under sub-paragraph (14) requiring some or all of the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

(14) On application by the relevant authority or undertaker, the appointed person may give directions as to the costs of the appeal and as to the parties by whom such costs are to be paid.

(15) In considering whether to make any such direction as to the costs of the appeal parties and the terms on which it is to be made, the appointed person must have regard to the relevant Planning Practice Guidance published by the Ministry for Housing, Communities and Local Government or such guidance as may from time to time replace it.

Anticipatory steps towards compliance with any requirement

31

If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.

Interpretation of Part 2 of Schedule 2

32

In Part 2 of Schedule 2—

“the appeal parties” means the relevant planning authority, the requirement consultee and the undertaker;

“business day” means a day other than a Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971[^f00074]; and

“requirement consultee” means any body named in a requirement which is the subject of an appeal as a body to be consulted by the relevant authority in discharging that requirement.

SCHEDULE 3 — STREETS SUBJECT TO STREET WORKS

(1) Authority	(2) Streets subject to street works
Lincolnshire County Council	Nursery Road (private road)
Lincolnshire County Council	Callen Road (private road)
Lincolnshire County Council	Bittern Way (private road)

SCHEDULE 4 — STREETS SUBJECT TO ALTERATION OF LAYOUT

PART 1 — PERMANENT ALTERATION OF LAYOUT

(1) Street subject to alteration of layout	(2) Description of alteration
Bittern Way (private road)	Secure site exit for HGV only – left turn only (works forming part of Work No. 5(j)) between points A and B on the access and rights of way plan.
New section of public footpath from Boston Public Footpath 14/4 to Boston Public Footpath 14/11	A new section of footpath (110m approximately) from a point approximately 200 m from the point marked ST1 (OSGR TF3374542872) on the access and rights of way plan which would join BOST/14/11.

PART 2 — TEMPORARY ALTERATION OF LAYOUT

(1) Street subject to alteration of layout	(2) Description of alteration
Marsh Lane	Works for the provision of temporary accesses (works forming part of Work No. 7) at the point marked Construction Access Point 2 on the access and rights of way plan.

SCHEDULE 5 — TEMPORARY CLOSURE, ALTERATION, DIVERSION AND RESTRICTION OF THE USE OF STREETS

(1) Street subject to temporary prohibition or restriction of use	(2) Extent of temporary prohibition or restriction of use of streets
Boston Public Footpath 14	Length of footpath to be temporarily closed between the points marked TC2 (OSGR TF3400742238) to TC3 (OSGR TF3417242188) on the access and rights of way plan to install and facilitate the construction of Work No. 6(d).
Boston Public Footpath 14	Length of footpath to be temporarily closed between the points marked TC1 (OSGR TF3374542872) to TC2 (OSGR TF3400742238) on the access and rights of way plan to install and facilitate the construction of Work No. 6(d).

SCHEDULE 6 — PERMANENT STOPPING UP OF STREETS AND PUBLIC RIGHTS OF WAY

(1) Street to be stopped up	(2) Extent of stopping up
Boston Public Footpath 14/4	Footpath to be stopped up between a point approximately 200 m from the point marked ST1 (OSGR TF3374542872) to ST3 (OSGR TF3411942384) on the access and rights of way plan.
Boston Public Footpath 14	Footpath to be stopped up between the points marked ST3 (OSGR TF3411942384) to ST4 (OSGR TF3400742238) on the access and rights of way plan.
Boston Public Footpath 14	Footpath to be stopped up between the points marked ST3 (OSGR TF3411942384) to ST2 (OSGR TF3417242188) on the access and rights of way plan.

SCHEDULE 7 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Number of plot shown on land plan and Crown land plan	(2) Purpose for which temporary possession may be taken
3	Temporary use to facilitate construction for Work No. 7 and other development necessary for the authorised development that takes place within the Order limits.

SCHEDULE 8 — PROTECTIVE PROVISIONS

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

1

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

2

In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means— in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00075]), belonging to or maintained by that undertaker; in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00076] for the purposes of gas supply; in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply; and in the case of a sewerage undertaker— any drain or works vested in the undertaker under the Water Industry Act 1991[^f00077]; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4)[^f00078] (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewers, drains or sewage disposal works at a future date) of that Act, and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

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

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

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

On street apparatus

3

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

Apparatus in stopped up streets

4

(1) Where any street is stopped up under article 14 (permanent stopping up of streets), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

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

Protective works to buildings

5

The undertaker, in the case of the powers conferred by article 22 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6

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

Removal of apparatus

7

(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6).

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

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

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 49 (arbitration).

(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 49 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

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

(7) If the utility undertaker in question fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved.

(8) For the avoidance of doubt, any such “deemed consent” under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.

Facilities and rights for alternative apparatus

8

(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 49 (arbitration).

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