The Hornsea Four Offshore Wind Farm Order 2023

• (1) No stage of the connection works may commence until final pre-construction survey work has been carried out to establish whether a European protected species is present on any of the land affected, or likely to be affected, by that stage of the connection works or in any of the trees to be lopped or felled as part of that stage of the connection works.

• (2) Where a European protected species is shown to be present, the relevant stage(s) of the connection works must not begin until, after consultation with the relevant SNCBs and the relevant planning authority, a scheme of protection and mitigation measures has been submitted to and approved by the relevant planning authority or a European protected species licence granted by Natural England.

• (3) The connection works must be carried out in accordance with the approved scheme.

• (4) In this Requirement, “European Protected Species” has the same meaning as in regulations 42 and 46 of the Conservation of Habitats and Species Regulations 2017⁴⁷.

Restoration of land used temporarily for construction

21

Any land landward of MLWS within the Order limits which is used temporarily for construction of the connection works and not ultimately incorporated in permanent works or approved landscaping, must be reinstated in accordance with such details as have been submitted to and approved by the relevant planning authority in consultation with, where appropriate, the MMO, and the relevant highway authority, as soon as reasonably practicable and in any event within twelve months of completion of the connection works.

Control of noise during operational phase

22

• (1) Work Nos. 7(a), (b) and (c) must not commence operations until a noise management plan (NMP) for those works has been submitted to and approved by the relevant planning authority.

• (2) The NMP must set out the particulars of—

• (a) any necessary noise attenuation and mitigation measures to be taken to minimise noise resulting from Work No. 7, including any noise limits; and

• (b) a scheme for monitoring attenuation and mitigation measures provided under sub-paragraph (a) which must include—

• (i) the circumstances under which noise will be monitored;

• (ii) the locations at which noise will be monitored;

• (iii) the method of noise measurement (which must be in accord with BS 4142:2014+A1:2019, an equivalent successor standard or other agreed noise measurement methodology appropriate to the circumstances); and

• (iv) a complaints procedure.

• (3) The NMP must be implemented as approved.

Enhancement strategy

23

• (1) No stage of the connection works may commence until written details of an enhancement strategy (which accords with the outline enhancement strategy) for that stage of the connection works has been submitted to and approved by the relevant planning authority.

• (2) The enhancement strategy must be implemented as approved.

Ministry of Defence radar mitigation

24

• (1) No wind turbine generator forming part of the authorised development is permitted to rotate its rotor blades on its horizontal axis until the Secretary of State, having consulted with the Ministry of Defence, confirms satisfaction that appropriate mitigation will be implemented and maintained for the life of the authorised development and that arrangements have been put in place with the Ministry of Defence to ensure that the approved mitigation is implemented.

• (2) For the purposes of this requirement—

• “appropriate mitigation” means measures to prevent or remove any unacceptable effects which the authorised development will have on air defence radar capability of Remote Radar Head (RRH) Staxton Wold and the Ministry of Defence’s air surveillance and control operations that it supports;

• “approved mitigation” means the detailed Radar Mitigation Scheme (RMS) that will set out the appropriate measures and timescales for implementation as agreed with the Ministry of Defence at the time the Secretary of State confirms satisfaction in accordance with sub-paragraph (1); and

• “Ministry of Defence” means the Ministry of Defence as represented by Defence Infrastructure Organisation – Safeguarding, St George’s House, DIO Head Office, DMS Whittington, Lichfield, Staffordshire, WS14 9PY or any successor body.

• (3) The undertaker must thereafter comply with all other obligations contained within the approved mitigation for the life of the authorised development.

Onshore decommissioning

25

• (1) Within three months of the permanent cessation of operation of the connection works an onshore decommissioning plan must be submitted to the relevant planning authority for approval unless otherwise agreed by the relevant planning authority.

• (2) The relevant planning authority must provide its decision on the onshore decommissioning plan required under requirement 25(1) within three months of submission of such plan unless otherwise agreed by the relevant planning authority and the undertaker.

• (3) The onshore decommissioning plan must be implemented as approved.

Employment and skills plan

26

• (1) No stage of the connection works may commence until for that stage an employment and skills plan (which accords with the outline employment and skills plan) in relation to the authorised development has been submitted to and approved by the relevant planning authority.

• (2) The employment and skills plan must be implemented as approved.

Energy balancing infrastructure safety management

27

• (1) Work No. 7(b) must not commence until an energy balancing infrastructure HazID report (which accords with the outline energy balancing infrastructure HazID report) has been submitted to and approved by the relevant planning authority.

• (2) The energy balancing infrastructure HazID report must be implemented as approved.

Stages of authorised development

28

• (1) The authorised development may not be commenced until a written scheme setting out the stages of construction of the authorised project has been submitted to and approved by the relevant planning authority, in relation to the connection works, or the MMO, in relation to works seaward of MHWS.

• (2) The stages of construction referred to in sub–paragraph (1) must not permit the authorised development to be constructed in more than one overall phase.

• (3) The scheme must be implemented as approved.

Claxby Radar Mitigation

29

• (1) No wind turbine generator blades forming part of the authorised development may be installed until the Secretary of State, having consulted with NATS, has confirmed satisfaction that appropriate mitigation will be implemented and maintained for the required period and that arrangements have been put in place with NATS to ensure that the approved mitigation is implemented and in operation prior to installation of the wind turbine blades.

• (2) The undertaker must thereafter comply with the obligations contained within the approved mitigation for the required period.

• (3) For the purposes of this requirement—

• “appropriate mitigation” means measures to mitigate any adverse effects which the operation of the authorised development will have on the primary surveillance radar at Claxby and NATS’ associated air traffic (surveillance and control) services/operations during the required period;

• “approved mitigation” means the detailed Primary Radar Mitigation Scheme setting out the appropriate mitigation approved by the Secretary of State and confirmed in accordance with sub-paragraph (1);

• “NATS” means NATS (En-Route) Plc (company number 04219273) or any successor body;

• “the required period” means the shorter of—the operational life of the authorised development; andthe period ending on the date notified to the Secretary of State by the undertaker and confirmed by NATS being the date on which NATS no longer requires the appropriate mitigation to be in place.

Requirement for written approval

30

Where the approval, agreement or confirmation of the Secretary of State, the relevant planning authority or another person is required under a requirement, that approval, agreement or confirmation must be given in writing.

Amendments to approved details

31

• (1) With respect to any requirement which requires the authorised project to be carried out in accordance with the details approved by the relevant planning authority or another organisation or body, the approved details must be carried out as approved unless an amendment or variation is previously agreed by the relevant planning authority or that other organisation or body in accordance with sub-paragraph (2).

• (2) Any amendments to or variations from the approved details must be in accordance with the principles and assessments set out in the environmental statement. Such agreement may only be given in relation to immaterial changes where it has been demonstrated to the satisfaction of the relevant planning authority or that other organisation or body that the subject matter of the agreement sought is unlikely to give rise to any materially greater environmental effects from those assessed in the environmental statement.

• (3) The approved details must be taken to include any amendments that may subsequently be approved by the relevant planning authority or that other person.

PART 4 — PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Interpretation

1

In this Part of this Schedule, “discharging authority” means—

• (a) any body responsible for giving any consent, agreement or approval required by a requirement included in Part 3 of this Schedule, or for giving any consent, agreement or approval further to any document referred to in any such requirement; or

• (b) the local authority in the exercise of its functions set out in sections 60 (control of noise on construction sites) and 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974 subsequently referred to as “the 1974 Act”⁴⁸.

Applications made under requirements

2

• (1) Where an application has been made to the discharging authority for any consent, agreement or approval required by a requirement contained in Part 3 of this Schedule, or for any consent, agreement or approval further to any document referred to in any such requirement, the discharging 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 a valid application is received by the discharging authority (such validity to be confirmed by the discharging authority within five days of receipt of the application); or

• (b) where further information is requested under paragraph 3 the day immediately following that on which the further information has been supplied by the undertaker, or such longer period as may be agreed in writing by the undertaker and the discharging authority.

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

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

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

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

Further information regarding requirements

3

• (1) In relation to any application referred to in paragraph 2, the discharging authority may request such further information from the undertaker as it considers necessary to enable it to consider the application.

• (2) If the discharging authority considers that further information is necessary and the requirement concerned contained in Part 3 of this Schedule does not specify that consultation with a consultee is required, the discharging authority must, within ten working days of receipt of the application, notify the undertaker in writing specifying the further information required.

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

• (4) If the discharging 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) 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.

Appeals

4

• (1) Where a person (“the applicant”) makes an application to a discharging authority, the applicant may appeal to the Secretary of State in the event that—

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

• (i) a requirement contained in Part 3 of this Schedule; or

• (ii) a document referred to in any requirement contained in Part 3 of this Schedule;

• (b) the discharging authority does not determine such an application within the time period set out in paragraph 2(1), or grants it subject to conditions;

• (c) the discharging authority issues a notice further to sections 60 (control of noise on construction sites) or 61 (prior consent for work on construction sites) of the 1974 Act;

• (d) on receipt of a request for further information pursuant to paragraph 3 of this Part of this Schedule, the applicant considers that either the whole or part of the specified information requested by the discharging authority is not necessary for consideration of the application; or

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

• (2) The appeal process is as follows—

• (a) any appeal by the applicant 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 time period set out in paragraph 2(1), giving rise to the appeal referred to in sub-paragraph (1);

• (b) the applicant must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the discharging authority and any consultee specified under the relevant requirement contained in Part 3 of this Schedule;

• (c) 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 the attention of the appointed person should be sent;

• (d) the discharging authority and any consultee (if applicable) must submit their written representations together with any other representations to the appointed person in respect of the appeal within 20 working days of the start date specified by the appointed person and must ensure that copies of their written representations and any other representations as sent to the appointed person are sent to each other and to the applicant on the day on which they are submitted to the appointed person;

• (e) the applicant must make any counter-submissions to the appointed person within 20 working days of receipt of written representations pursuant to sub-paragraph (d) above; and

• (f) the appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable after the end of the 20 day period for counter-submissions under sub-paragraph (e).

• (3) The appointment of the appointed person pursuant to sub-paragraph 4(2)(c) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

• (4) In the event that the appointed person considers that further information is necessary to 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.

• (5) Any further information required pursuant to sub-paragraph (4) must be provided by the party from whom the information is sought to the appointed person and to the other appeal parties by the date specified by the appointed person. The appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of written representations to the appointed person within ten working days of the date specified by the appointed person, but must otherwise be in accordance with the process and time limits set out in sub-paragraphs 4(2)(c) to (e).

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

• (a) allow or dismiss the appeal; or

• (b) reverse or vary any part of the decision of the discharging authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to the appointed person in the first instance.

• (7) The appointed person may proceed to a decision 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 of the relevant time limits.

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

• (9) 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 a judicial review.

• (10) If an approval is given by the appointed person pursuant to this Part of this Schedule, it is deemed to be an approval for the purpose of Part 3 of this Schedule as if it had been given by the discharging authority. The discharging authority may confirm any determination given by the appointed person in identical form in writing, but a failure to give such confirmation (or a failure to give it in identical form) is not to be taken to affect or invalidate the effect of the appointed person’s determination.

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

• (12) On application by the discharging authority or the applicant, the appointed person may give directions as to the costs of the appeal and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to relevant guidance on the Planning Practice Guidance website or any official circular or guidance which may from time to time replace it.

SCHEDULE 2 — STREETS SUBJECT TO STREET WORKS

SCHEDULE 3 — STREETS TO BE TEMPORARILY CLOSED OR RESTRICTED

SCHEDULE 4 — PUBLIC RIGHTS OF WAY TO BE CLOSED OR DIVERTED AND ACCESS LAND

PART 1 — PUBLIC RIGHTS OF WAY TO BE TEMPORARILY CLOSED

PART 2 — PUBLIC RIGHTS OF WAY TO BE PERMANENTLY DIVERTED

PART 3 — PUBLIC RIGHTS OF WAY TO BE TEMPORARILY DIVERTED

PART 4 — ACCESS LAND WHERE PUBLIC RIGHTS OF WAY MAY BE TEMPORARILY SUSPENDED

SCHEDULE 5 — ACCESS TO WORKS

SCHEDULE 6 — LAND IN WHICH ONLY NEW RIGHTS ETC., MAY BE ACQUIRED

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

1

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

2

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

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5—

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

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

3

• (1) Without limitation to the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).

• (2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—

(5A) If— (a) the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) (powers of entry) of the 1965 Act (as modified by paragraph 7 of Schedule 7 to the Hornsea Four Offshore Wind Farm Order 2023; and (b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A (counter–notice requiring purchase of land not in notice to treat) to the 1965 Act (as substituted by paragraph 10 of Schedule 7 to the Hornsea Four Wind Farm Order 2023 to acquire an interest in the land; and (c) the acquiring authority enters on and takes possession of that land, the authority is deemed for the purposes of subsection (3)(a) to have entered on that land where it entered on that land for the purpose of exercising that right.

Application of Part 1 of the 1965 Act

4

• (1) The 1965 Act is to have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right, or to the imposition under this Order of a restrictive covenant, as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are read (according to the requirements of the particular context) as referring to, or as including references to—

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

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

• (2) Without limitation on the scope of sub-paragraph (1), Part 1 of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right or, in relation to the imposition of a restriction, with the modifications specified in the following provisions of this Schedule.

5

For section 7 (measure of compensation in the case of severance) of the 1965 Act there is substituted the following section—

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

6

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

• (a) section 9(4) (refusal to convey, failure to make title, etc);

• (b) paragraph 10(3) of Schedule 1 (persons without power to sell their interests) (conveyance of the land or interest);

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

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

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

7

Section 11 (powers of entry) of the 1965 Act is so modified as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 21 (compulsory acquisition of rights etc.), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant (which is deemed for this purpose to have been created on the date of service of the notice); and sections 11A (powers of entry: further notices of entry), 11B (counter-notice requiring possession to be taken on specified date), 12 (unauthorised entry) and 13 (refusal to give possession to acquiring authority) of the 1965 Act is modified correspondingly.

8

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

9

Section 22 (interest omitted from purchase) of the 1965 Act as modified by article 26(3) is so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

10

For Schedule 2A to the 1965 Act substitute—