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The Associated British Ports (Immingham Green Energy Terminal) Order 2025

Type Statutory-Instrument

Publication 2025-02-06

Last updated 2025-02-27

State In force

Department King's Printer of Acts of Parliament

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Made: 6th February 2025

Coming into force: 27th February 2025

The Secretary of State, in exercise of the powers conferred by sections 114⁴, 115⁵, 120⁶, 122⁷ and 123⁸ of, and paragraphs 1 to 4, 10 to 15, 17, 20, 22, 26, 30A, 30B, 32, 33, 36 and 37 of Schedule 5⁹ to, the 2008 Act, makes the following Order.

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Associated British Ports (Immingham Green Energy Terminal) Order 2025 and comes into force on 27th February 2025.

Interpretation

2

(1) In this Order, unless the context requires otherwise—

“the 1847 Act” means the Harbours, Docks, and Piers Clauses Act 1847¹⁰;

“the 1961 Act” means the Land Compensation Act 1961¹¹;

“the 1965 Act” means the Compulsory Purchase Act 1965¹²;

“the 1967 Act” means the Forestry Act 1967¹³;

“the 1980 Act” means the Highways Act 1980¹⁴;

“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981¹⁵;

“the 1984 Act” means the Road Traffic Regulation Act 1984¹⁶;

“the 1990 Act” means the Town and Country Planning Act 1990¹⁷;

“the 1991 Act” means the New Roads and Street Works Act 1991¹⁸;

“the 2003 Act” means the Communications Act 2003¹⁹;

“the 2008 Act” means the Planning Act 2008²⁰;

“the 2009 Act” means the Marine and Coastal Access Act 2009²¹;

“the 2010 Regulations” means the Community Infrastructure Levy Regulations 2010²²;

“the 2017 Regulations” means the Infrastructure Planning (Environmental ImpactAssessment) Regulations 2017²³;

“ancillary works” means the ancillary works described in Part 2 of Schedule 1 (authorised project) and any other works authorised by the Order which are not development within the meaning of section 32 (meaning of “development”) of the 2008 Act;

“Air Products” means Air Products (BR) Limited (company number 02532156) whose registered office is at Hersham Place Technology Park, Molesey Road, Walton on Thames, Surrey KT12 4RZ or such other person as the Secretary of State agrees;

“apparatus” has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act except that, unless otherwise provided, it further includes pipelines, aerial markers, cathodic protection test posts, field boundary markers, transformer rectifier kiosks, electricity cables, telecommunications equipment (including masts and cables), electricity cabinets and any pipe sleeves, ducts and culverts in which any apparatus is lodged;

“area of jurisdiction” means so far as it falls within the UK marine area, the area extending to a distance of 186 metres in every direction from any part of Work No. 1;

“authorised development” means the development described in Part 1 of Schedule 1 and any other development within the meaning of section 32 (meaning of “development”) of the 2008 Act authorised by this Order;

“authorised project” means the authorised development and the ancillary works;

“Board” means the North East Lindsey Drainage Board;

“book of reference” means the document of that description listed in the table at Schedule 15 (documents and plans to be certified) and which has been certified by the Secretary of State as the book of reference for the purposes of this Order;

“building” includes any structure or erection or any part of a building, structure or erection;

“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 1971²⁴;

“carriageway” has the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

“Company” means Associated British Ports (company number ZC000195) whose registered office is at 25 Bedford Street, London, WC2E 9ES;

“construct” includes execution, placing, altering, replacing, relaying and removal and “construction is to be construed accordingly;

“deemed marine licence” means the marine licence granted by article 47 (deemed marine licence);

“dock master” means the dock master for the Port of Immingham statutory harbour authority area;

“the electronic communications code” has the same meaning as in Chapter 1 (electronic communications networks and services) of Part 2 (networks, services and the radio spectrum) of the 2003 Act;

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

“electronic transmission” means a communication transmitted by means of an electronic communications network or by other means provided it is in electronic form and in this definition “electronic communications network” has the same meaning as in section 32(1)²⁵ (meaning of electronic communications networks and services) of the 2003 Act;

“existing early works planning permission” means the planning permission granted by the relevant planning authority on 1 November 2024 with reference number DM/0326/24/FUL and any amendments or variations made or granted in respect of it pursuant to section 96A, section 73²⁶ (determination of applications to develop land without compliance with conditions previously attached), section 73A²⁷ (planning permission for development already carried out) or section 73B²⁸ (applications for permission not substantially different from existing permission) of the 1990 Act;

“environmental statement” means the document of that description listed in the table at Schedule 15 and which has been certified by the Secretary of State as the environmental statement for the purposes of this Order;

“harbour master” means the harbour master for the Statutory Conservancy and Navigation Authority;

“highway” and “highway authority” respectively have the same meaning as in section 328 (meaning of “highway”) and section 1 (highway authorities: general provision) of the 1980 Act;

“land plans” means the plans of that description listed in the table at Schedule 15 and which are certified by the Secretary of State as the land plans for the purposes of this Order;

“level of high water” means the level of mean high-water springs;

“Long Strip” means the area shown edged blue and labelled “Tree Preservation Order” on the plan of potentially affected hedgerows and trees subject to preservation orders;

“Long Strip construction environmental management plan” means the document of that name identified in the table at Schedule 15 (documents and plans to be certified) and which has been certified by the Secretary of State as the Long Strip construction environmental management plan for the purposes of this Order;

“maintain” includes inspect, repair, adjust, alter, remove or reconstruct, provided such works do not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement, and any derivative of “maintain is to be construed accordingly”;

“MMO” means the Marine Management Organisation;

“new early works planning permission” means any planning permission granted under the 1990 Act prior to the service of notice under article 55(3) for works also comprised in Work No. 2, Work No. 3, Work No 5 or Work No. 7 (including any further associated development to which paragraph 11 of Part 1 (authorised development) of Schedule 1 (authorised project) refers) or any part of them, and any amendments or variations made or granted in respect of such planning permission pursuant to section 96A²⁹ (power to make non-material changes to planning permission or permission in principle), section 73, section 73A or section 73B of the 1990 Act, except an existing early works planning permission;

“operational use” means the relevant part of the authorised project being in operation after construction and commissioning is complete;

“Order land” means the land shown shaded pink, blue, green and purple and shown shaded and hatched blue (in each case) on the land plans and described in the book of reference;

“Order limits” means the Order limits shown on the works plans within which the authorised development may be carried out;

“owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981³⁰;

“plan of potentially affected hedgerows and trees subject to preservation orders” means the plan of that description listed in the table at Schedule 15 and which has been certified by the Secretary of State as the plan of potentially affected hedgerows and trees subject to preservation orders for the purposes of this Order;

“Port of Immingham” means the statutory port estate including the Port of Immingham statutory harbour authority area;

“relevant planning authority” means the local planning authority for the land in question, being North East Lincolnshire Council or any successor to it as the local planning authority;

“requirements” means the requirements listed in Schedule 2 (requirements), and any reference to a numbered requirement is to be construed accordingly;

“River Humber” means the tidal estuary from its mouth at the Spurn Peninsula to its confluence with the rivers Ouse and Trent;

“sea” has the same meaning as that given at section 42(3) (UK marine area) of the 2009 Act;

“Statutory Conservancy and Navigation Authority” means the statutory conservancy and navigation authority for the River Humber (as successor to the Conservancy Commissioners established under the Humber Conservancy Act 1868³¹) and includes its role as competent harbour authority and local lighthouse authority for its statutory area;

“statutory harbour authority” means the Company in its capacity as the local lighthouse authority and as the statutory harbour authority for the Port of Immingham including that part of the estuary of the River Humber immediately adjacent to that port;

“statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land) of the 2008 Act;

“street” means a street within the meaning of section 48³² (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes any footpath;

“street authority”, in relation to a street, has the same meaning as in section 49³³ (the street authority) of the 1991 Act;

“street works” means the works listed in article 7 (street works);

“stopping up and restriction of use of streets and public rights of way plan” means the plan of that description listed in the table at Schedule 15 and which has been certified by the Secretary of State as the stopping up and restriction of use of streets and public rights of way plan for the purposes of this Order;

“street works and accesses plan” means the plan of that description listed in the table at Schedule 15 and which has been certified by the Secretary of State as the street works and accesses plan for the purposes of this Order;

“traffic authority” has the same meaning as in section 121A³⁴ (traffic authorities) of the 1984 Act;

“tidal works” means so much of the authorised project as is on, under or over tidal waters or tidal lands below the level of high water;

“Trinity House” means the Corporation of Trinity House of Deptford Strond;

“Upper Tribunal” means the Lands Chamber of the Upper Tribunal;

“UK marine area” has the meaning given to it in section 42 (UK marine area) of the 2009 Act;

“undertaker” means, subject to article 46 (benefit of the Order)— the Company; Air Products in respect of the following provisions— article 19 (authority to survey and investigate the land); article 20 (protective works); article 0 (temporary use of land for constructing the authorised project); article 32 (temporary use of land for maintaining the authorised project), so far as they relate to the land shown as plots 3/2, 4/5, 4/7, 4/8, 4/9, 4/16, 4/17, 4/18, 4/19, 4/20, 4/21, 4/22, 4/23, 4/26, 4/28, 4/29, 4/30, 4/32, 5/3, 5/4, 5/7, 5/8, 5/10, 5/11, 5/12, 5/13, 5/14, 5/15, 5/18, 5/20, 5/22, 5/23, 5/24, 5/25, 5/27, 5/28, 5/29, 5/30, 5/32, 5/33, 5/36, 5/37, 5/38, 5/39, 5/45, 6/6, 6/14, 6/15, 6/16, 6/18, 6/19, 7/1, 7/2, 7/3, 7/4, 7/5, 7/6, 7/7, 7/8, 7/9, 7/10, 7/11, 7/12, 7/15, 7/16, 7/17, 7/18, 7/20, 7/21, 7/22 and 7/23 on the land plans and described in the book of reference and (where applicable on the terms of those provisions) land outside the Order limits except (in each aforementioned case) in respect of any interests of the Company; and any person who has the benefit of the Order in accordance with section 156 (benefit of order granting development consent) of the 2008 Act;

“vessel” means every description of vessel, however propelled or moved, and includes a displacement and non-displacement craft, a personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over in water and which is at the time in, on, or over water;

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

“works plans” means the plans of that description listed in the table at Schedule 15 and which are certified by the Secretary of State as the works plans for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do or restrain or to place and maintain anything in, on or under land or in the airspace above its surface and to any trusts or incidents (including restrictive covenants) to which the land is subject and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or over which rights are created and acquired under this Order or is otherwise comprised in the Order limits.

(3) All measurements of distances, directions, lengths and volumes referred to in this Order are approximate and distances between lines or points on a numbered work comprised in the authorised project and shown on the works plans are to be taken to be measured along that work.

(4) References in this Order to numbered works are references to the works comprising the authorised project as numbered in Part 1 of Schedule 1 (authorised project) and shown on the works plans and a reference in this Order to a work designated by a number, or by a combination of letters and numbers, is a reference to the work so designated in that Schedule.

(5) For the purposes of this Order, all areas described in square metres in the book of reference are approximate.

(6) References in this Order to points identified by letters, with or without numbers, are to be construed as references to points so lettered on the plan to which the reference applies.

(7) In this Order, the expression “includes” is to be construed without limitation.

(8) In this Order, references to any statutory body include that body’s successor bodies.

Disapplication of legislative provisions

3

(1) The following provisions do not apply in relation to activities carried out for the purpose of, or in connection with, the construction, maintenance, use or decommissioning of the authorised project—

(a) section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991³⁵;

(b) the provisions of any byelaws made under section 66³⁶ (powers to make byelaws) of the Land Drainage Act 1991;

(c) the provisions of any byelaws made under, or having effect as if made under, paragraph 5 of Schedule 25 (byelaw – making powers of the appropriate agency) to the Water Resources Act 1991³⁷;

(d) regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016³⁸ in respect of a flood risk activity only; and

(e) the provisions of the Neighbourhood Planning Act 2017³⁹ insofar as they relate to temporary possession of land under articles 0 (temporary use of land for carrying out the authorised project) and 32 (temporary use of land for maintaining the authorised project) of this Order.

(2) Sections 25 (penalties for improper deposit of hard materials in the river) and 26 (no mud to be cast into the river except as Admiralty direct) of the River Humber Conservancy Act 1852⁴⁰, sections 5 (removal of obstructions) and 9 (licences for execution of works) of the Humber Conservancy Act 1899⁴¹ and sections 6 (no erections in Humber below river lines or without licence above river lines) and 8 (sand not to be removed from bed or foreshore of River Humber without licence of Commissioners) of the Humber Conservancy Act 1905⁴² do not apply to the authorised project.

Incorporation of the 1847 Act

4

(1) The 1847 Act, except sections 5 to 13, 16 to 25, 47 to 50, 77, 79, 80, 85 to 102 and 104, so far as applicable for the purposes of and not inconsistent with this Order, is incorporated with and forms part of this Order, subject to the modifications set out in paragraph (2).

(2) For the purposes of the 1847 Act, as so incorporated—

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

(b) the expressions “the Promoters of the undertaking” and “the undertakers” have the meaning given to “the Company” in article 2(1) of this Order;

(d) the expression “the harbour master” so far as applicable to the authorised project, has the meaning given to “the dock master” in article 2(1) of this Order;

(e) the meaning given to the word “vessel” by section 3 of the 1847 Act is substituted by that given to “vessel” in article 2(1) of this Order;

(f) section 53 of the 1847 Act is not to be construed as requiring the dock master to serve on the master of a vessel a notice in writing of his directions but such directions may be given orally or otherwise communicated to such master;

(g) reference in section 69 of the 1847 Act to “£2” is to be read as to “level 3 on the standard scale”;

(h) section 33 of the 1847 Act, as so incorporated, must not be construed as derogating from the power of the dock master (which has the meaning given in article 2(1) of this Order) to discontinue any part of its undertaking; and

(i) any requirement to comply with a notice or direction given by the harbour master is to be construed as including a requirement that, in complying with such notice or direction, a person who is subject to the notice or direction must also comply with any relevant notice or direction given by the dock master or the harbour master (which both have the meaning given in article 2(1) of this Order) in the exercise by either or both of them of any function conferred by or under any enactment (including this Order).

PART 2 — WORKS PROVISIONS

Principal powers

5

Subject to the provisions of this Order, including the requirements in Schedule 2 (requirements), the undertaker is granted—

(a) development consent for the authorised development; and

(b) consent for the ancillary works,

to be carried out within the Order limits.

Extent of certain works

6

(1) Subject to paragraph (2), in carrying out the authorised project comprising the works numbered in Part 1 (authorised development) of Schedule 1 (authorised project) the undertaker must, where the works plans set out the lateral extent of the area in which the numbered work comprised in the authorised project is to be located, carry out, maintain, use or decommission the numbered work within the lateral extent of the area set out for it on those plans.

(2) For the purposes of paragraph (1), the lateral extent of the area for the dredged pocket described in paragraph 1(b) of Part 1 (authorised development) of Schedule 1 (authorised project) is not to be taken as the area set out on the works plans, which is shown on those plans for indicative purposes only, and the area within which the dredged pocket described in paragraph 1(b) of Part 1 (authorised development) of Schedule 1 (authorised project) must be carried out is instead to be taken from time to time to be the area bounded by the grid coordinates specified in paragraph 5(2) of the deemed marine licence or such other area for the dredged pocket as is specified in any marine licence granted or varied pursuant to the 2009 Act (including any variation of the deemed marine licence).

Streets

Street works

7

(1) The undertaker may, for the purposes of the authorised project, enter on so much of any of the streets as are within the Order limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street, or carry out works to strengthen or repair the carriage way or to provide protection to apparatus installed in or on the street;

(d) maintain or renew the position of apparatus in or on the street or change its position;

(e) demolish, remove, replace and relocate any street furniture (including any bus shelter and associated bus stop infrastructure);

(f) execute any works to provide or improve sight lines required by the highway authority;

(g) execute and maintain any works to provide hard and soft landscaping;

(h) carry out re-lining and placement of new temporary and permanent markings; and

(i) execute any works required for, or incidental to, any works referred to in sub-paragraphs (a) to (h) above.

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) The undertaker must not construct works to any street under paragraph (1) for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent and the undertaker must comply with any reasonable conditions so attached.

(4) Paragraph (3) does not apply to works described in column (3) of the table at Schedule 4 (streets subject to street works) carried out to the corresponding street specified in columns (1) and (2) of that table.

Application of the 1991 Act

8

(1) Works carried out under this Order in relation to a highway which consists of or includes a carriageway is to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—

(a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (highway authorities, highways and related matters) of the 1991 Act; or

(b) they are works which, had they been executed by the relevant highway authority, might have been carried out in exercise of the powers conferred by section 64⁴³ (dual carriageways and roundabouts) of the 1980 Act.

(2) In Part 3 of the 1991 Act references to the highway authority concerned are, in relation to works which are major highway works by virtue of paragraph (1), to be construed as references to the undertaker.

(3) The following provisions of the 1991 Act do not apply in relation to any works constructed under the powers of this Order—

(a) section 56⁴⁴ (directions as to timing as to timing of street works);

(b) section 56A⁴⁵ (powers to give directions as to placing of apparatus);

(d) section 58A⁴⁷ (restriction on works following substantial street works);

(e) section 73A⁴⁸ (power to require undertaker to re-surface street);

(f) section 73B⁴⁹ (power to specify timing etc. of re-surfacing);

(g) section 73C⁵⁰ (materials, workmanship and standard of re-surfacing);

(h) section 78A⁵¹ (contributions to costs of re-surfacing by undertaker); and

(i) Schedule 3A⁵² (restriction on works following substantial street works).

(4) The provisions of the 1991 Act referred to in paragraph (5) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved under those provisions, apply (with necessary modifications) in relation to—

(a) any stopping up, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 13 (temporary stopping up and prohibition or restriction of use of streets and public rights of way) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act; and

(b) any alteration of the layout of or the carrying out of any works in the street by the undertaker under the powers conferred by article 9 (power to alter layout, etc., of streets) whether or not the alteration of the layout of or the carrying out of the works constitutes street works within the meaning of that Act.

(5) The provisions of the 1991 Act⁵³ referred to in paragraph (4) are—

(a) section 54⁵⁴ (advance notice of certain works), subject to paragraph (6);

(b) section 55⁵⁵ (notice of starting date of works), subject to paragraph (6);

(d) section 59⁵⁷ (general duty of street authority to co-ordinate works);

(e) section 60 (general duty of undertakers to co-operate);

(f) section 68 (facilities to be afforded to street authority);

(g) section 69 (works likely to affect other apparatus in the street);

(h) section 75⁵⁸ (inspection fees);

(i) section 76 (liability for cost of temporary traffic regulation); and

(j) section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purpose of the provisions mentioned above.

(6) Sections 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were references to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 10 (construction and maintenance of new, altered or diverted streets)—

(a) affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and the undertaker is not by reason of any duty under that article to maintain a street or to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

(b) has effect in relation to street works as respects which the provisions of Part 3 of the 1991 Act apply.

Power to alter layout, etc., of streets

9

(1) The undertaker may, for the purposes of the authorised project, alter the layout of or carry out any works in the street—

(a) in the case of the streets specified in columns (1) and (2) of the table in Part 1 (permanent alteration of layout) of Schedule 5 (alteration of streets) permanently in the manner specified in relation to that street in column (3); and

(b) in the case of the streets specified in columns (1) and (2) of the table in Part 2 (temporary alteration of layout) of Schedule 5 temporarily in the manner specified in relation to that street in column (3).

(2) Without limitation on the specific powers conferred by paragraph (1) but subject to paragraphs (3) and (4), the undertaker may, for the purposes of constructing, operating, maintaining or decommissioning the authorised project, permanently or temporarily alter the layout of any street (and carry out works ancillary to such alterations) whether or not within the Order limits and the layout of any street having a junction with such a street and, without limiting the scope of this paragraph, the undertaker may—

(a) increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track, central reservation or verge within the street;

(b) alter the level or increase the width of any such kerb, footpath, footway, cycle track, central reservation or verge;

(d) execute any works to widen or alter the alignment of pavements;

(e) make and maintain crossovers and passing places;

(f) execute any works of surfacing or resurfacing of the highway;

(g) carry out works for the provision or alteration of parking places, loading bays and cycle tracks;

(h) execute any works related to signage and street markings;

(i) execute any works necessary to alter or provide facilities for the management and protection of pedestrians; and

(j) execute any works to provide or improve sight lines required by the highway authority.

(3) The undertaker must restore to the reasonable satisfaction of the street authority any street that has been temporarily altered under this article.

(4) The powers conferred by paragraph (2) may not be exercised without the consent of the street authority, which may attach any reasonable conditions to any consent but such consent is not to be unreasonably withheld or delayed.

Construction and maintenance of new, altered or diverted streets and other structures

10

(1) Subject to paragraph (5), any street to be constructed under this Order must be completed to the reasonable satisfaction of the street authority and must, unless otherwise agreed in writing with the street authority, be maintained by and at the expense of the undertaker to the reasonable satisfaction of the street authority for a period of 12 months from its completion and thereafter by the street authority.

(2) Subject to paragraph (5), where a street is permanently altered or diverted under this Order, the altered or diverted part of the street must be completed to the reasonable satisfaction of the street authority and, unless otherwise agreed in writing with the street authority, that part of the street must be maintained by and at the expense of the undertaker to the reasonable satisfaction of the street authority for a period of 12 months from its completion and thereafter by the street authority.

(3) Subject to paragraph (5), where a street is temporarily altered or diverted under this Order, the altered or diverted part of the street must be completed to the reasonable satisfaction of the street authority and the temporary alterations must be maintained by and at the expense of the undertaker.

(4) Where land not previously part of the highway comes to form part of the highway by virtue of the construction, diversion or alteration of streets under this Order, unless otherwise agreed in writing with the street authority, the land is deemed to have been dedicated as highway on the expiry of a period of 12 months from completion of the street that has been constructed, altered or diverted and is thereafter to be maintained by and at the expense of the street authority.

(5) In the case of any bridge or any other structure constructed under this Order to carry a street, both the street surface and structure of the bridge or other structure must be completed to the reasonable satisfaction of the street authority and, unless otherwise agreed in writing with the street authority, must be maintained by and at the expense of the undertaker to the reasonable satisfaction of the street authority for a period of 24 months from its completion and thereafter by the street authority.

(6) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(7) For the purposes of a defence under paragraph (6), the court must in particular have regard to the following matters—

(a) the character of the street and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a street of that character and used by such traffic;

(d) whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e) where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.

(8) The date of completion of any works referred to in paragraphs (1), (2), (3), (4) and (5) is to be agreed between the undertaker and the street authority, acting reasonably.

Permanent stopping up of streets

11

(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised project, stop up each of the streets specified in column (2) of Schedule 6 (permanent stopping up of highways) and identified on the stopping up and restriction of use of streets and public rights of way plan to the extent specified and described in column (3) of that Schedule.

(2) No street specified in column (2) of Schedule 6 (being a street to be stopped up for which no substitute is to be provided) is to be wholly or partly stopped up under this article unless the condition specified in paragraph (3) is satisfied in relation to all the land which abuts on either side of the street to be stopped up.

(3) The condition referred to in paragraph (2) is that—

(a) the undertaker is in possession of the land;

(b) there is no right of access to the land from the street concerned;

(d) the owners and occupiers of the land have agreed to the stopping up.

(4) Where a street has been stopped up under this article—

(a) all rights of way over or along the street so stopped up are extinguished; and

(b) the undertaker may appropriate and use for the purposes of the authorised project so much of the site of the street as is bounded on both sides by land owned by the undertaker.

(5) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(6) This article is subject to article 17 (apparatus and rights of statutory undertakers in stopped up streets).

(7) The undertaker must give the highway authority notice of any street having been stopped up under paragraph (1) specifying the date of such stopping up and providing a plan of the extent of the street which has been stopped up.

Permanent stopping up of public rights of way

12

(1) From the date upon which the authorised project begins for the purposes of section 155 (when development begins) of the 2008 Act, the section of each public right of way specified in columns (1) and (2) of Schedule 7 (public rights of way to be permanently stopped up) and shown on the stopping up and restriction of use of streets and public rights of way plan is extinguished to the extent specified in column (3) of that Schedule, the undertaker must erect a site notice at each end of the rights of way to be extinguished no less than 28 days prior to the extinguishment of that right of way.

(2) The notice to be erected under paragraph (1) must include—

(a) details of the public rights of way to be extinguished;

(b) the date on which the extinguishment will take effect; and

(c) details of any public rights of way being provided in substitution; and details of the places where a copy of this Order and the documents listed in Schedule 15 (documents and plans to be certified) may be inspected.

Temporary stopping up and prohibition or restriction of use of streets and public rights of way

13

(1) The undertaker, during and for the purposes of carrying out the authorised project, may temporarily stop up, alter, divert, or prohibit or restrict the use of any street or public right of way and may for any reasonable time—

(a) divert the traffic from the street or public right of way;

(b) authorise for the purpose of crossing only the use of motor vehicles on classes of public rights of way where, notwithstanding the provisions of this article, there is otherwise no public right to use motor vehicles; and

(2) Without limitation on the scope of paragraph (1), the undertaker may use as a temporary working site any street or public right of way which has been temporarily stopped up, altered or diverted or the use of which has been prohibited or restricted under the powers conferred by this article.

(3) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street or public right of way affected by the temporary stopping up, alteration or diversion under this article if there would otherwise be no reasonable access.

(4) Without limitation on the scope of paragraph (1) the undertaker may temporarily prohibit the use of, use, restrict the use of, alter or divert—

(a) the streets or public rights of way specified in column (2) of the table in Part 1 (temporary prohibition or restriction of the use or diversion of streets or public rights of way) of Schedule 8 (temporary restriction or alteration, etc. of the use of streets or public rights of way) in the manner specified in column (3) of that table; and

(b) the public rights of way specified in column (2) of the table in Part 2 (temporary use of motor vehicles on public rights of way) of Schedule 8 in the manner specified in column (3) of that table.

(5) The undertaker must not temporarily stop up, prohibit the use of, authorise the use of, restrict the use of, alter or divert—

(a) any street or public right of way specified in paragraph (4) without first consulting the street authority during a period of not less than 28 days; or

(b) any other street or public right of way without the consent of the street authority (such consent not to be unreasonably withheld or delayed), which may attach reasonable conditions to such consent.

(6) If the undertaker temporarily closes under the powers conferred by this article any part of Bridleway Number 36 to which columns (1), (2) and (3) of the table in Part 1 of Schedule 8 refer it must provide the temporary diversion specified in column (3) of that table but the temporary diversion is not required to be of a higher standard than the temporarily closed Bridleway Number 36.

(7) The undertaker must make good to the reasonable satisfaction of the highway authority any damage caused to any part of Bridleway Number 36 to which columns (1), (2) and (3) of the table in Part 1 of Schedule 8 refer by the exercise of the undertaker of any powers conferred by this article.

(8) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Use of private roads for construction

14

(1) The undertaker may use any private road within the Order limits for the passage of persons or vehicles (with or without materials, plant and machinery) for the purposes of, or in connection with, the construction of the authorised project.

(2) The undertaker must compensate the person liable for the repair of a road to which paragraph (1) applies for any loss or damage which that person may suffer by reason of the exercise of the power conferred by paragraph (1).

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of such compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Access to works

15

The undertaker may, for the purposes of the authorised project—

(a) form and lay out the permanent means of access, or improve existing means of access, in the locations specified in Part 1 (permanent means of access to works) of Schedule 9 (access to works);

(b) form and lay out the temporary means of access in the locations specified in Part 2 (temporary means of access to works) of Schedule 9; and

(c) with the consent of the relevant planning authority (such consent not to be unreasonably withheld or delayed), after consultation with the relevant highway authority, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised project.

Agreements with street authorities

16

(1) A street authority and the undertaker may enter into agreements with respect to—

(a) the construction of any new street including any structure carrying the street, whether or not over or under any part of the authorised project;

(b) the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order;

(c) the maintenance of any street or of the structure of any bridge or tunnel carrying a street over or under the authorised project;

(d) any stopping up, prohibition, restriction, alteration or diversion of a street under the powers conferred by this Order;

(e) the construction in the street of any of the authorised project;

(f) the undertaking in the street of any of the works referred to in article 7 (street works), article 9 (power to alter layout, etc., of streets) and article 10 (construction and maintenance of new, altered or diverted streets);

(g) such other works as the parties may agree; or

(h) the adoption by a street authority which is the highway authority of works—

(i) undertaken on a street which is existing publicly maintainable highway; or

(ii) which the undertaker and highway authority agree to be adopted as publicly maintainable highway.

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

(a) provide for the street authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and the street authority specifying a reasonable time for the completion of the works; and

Apparatus and rights of statutory undertakers in stopped up streets

17

Where a street is altered or diverted or its use is temporarily prohibited or restricted under article 7 (street works), article 9 (power to alter layout, etc., of streets), article 10 (construction and maintenance of new, altered or diverted streets) or article 13 (temporary stopping up and prohibition or restriction of use of streets and public rights of way) any statutory undertaker whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to Schedule 14 (protective provisions), as if this Order had not been made.

Supplementary

Discharge of water

18

(1) Subject to paragraphs (4), (5) and (7), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised project and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse or public sewer or drain.

(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991⁵⁹.

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain in connection with the authorised project except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The undertaker must not make any opening into any public sewer or drain in connection with the authorised project except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs but such approval must not be unreasonably withheld; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(6) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016⁶⁰ in respect of a water discharge activity or groundwater activity.

(7) If a person who receives an application for consent or approval under paragraph (3) or under paragraph (4)(a) fails to notify the undertaker of a decision within 28 days of receiving the application, that person is deemed to have granted consent or given approval, as the case may be.

(8) A person who receives an application for consent or approval under paragraph (3) or under paragraph (4)(a)—

(a) may not refuse the application on a ground which is inconsistent with a relevant drainage strategy approved by the relevant planning authority pursuant to requirement 12 (surface water drainage) of Schedule 2 (requirements); and

(b) may not make such consent or approval subject to any term or condition which is inconsistent with such a drainage strategy.

(9) Any application to which this article applies must include a statement that the provisions of paragraphs (7) and (8) apply to that application.

(10) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Board, the Environment Agency, a joint planning board, a local authority or a sewerage undertaker; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991⁶¹ have the same meaning as in that Act.

Authority to survey and investigate the land

19

(1) The undertaker may for the purposes of this Order enter on any land within the Order limits except the land shaded yellow on the land plans and, where reasonably necessary, any land which is adjacent to but outside the Order limits or which may be affected by the authorised project and—

(a) survey, monitor or investigate the land (including any watercourses, groundwater, static water bodies or vegetation on the land);

(b) without prejudice to the generality of sub-paragraph (a), survey, monitor or investigate the land and any buildings on that land for the purpose of investigating the potential effects of the authorised project on that land or buildings on that land or for enabling the construction, use and maintenance of the authorised project;

(i) make trial holes, boreholes, excavations or take horizontal cores in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer, subsoil, groundwater and other materials below ground level and remove soil, rock, water and other material samples and discharge water from sampling operations on to the land;

(ii) carry out ecological or archaeological investigations and monitoring on the land, including making any excavations or trial holes on the land for such purposes; and

(d) place on, leave on and remove from the land apparatus (including but not limited to welfare facilities and apparatus attached to buoys) for use in connection with the survey, monitoring or investigation of land, making of trial holes, boreholes, excavations and cores and the carrying out of ecological or archaeological investigations or monitoring.

(2) The power conferred by paragraph (1) includes, without prejudice to the generality of that paragraph, the power to take, and process, samples of or from any of the following found on, in or over the land—

(a) water;

(b) air;

(d) flora;

(e) bodily excretions, or dead bodies, of non-human creatures; or

(f) any non-living thing present as a result of human action.

(3) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

(4) Any person entering land under this article on behalf of the undertaker—

(a) must, if so required, before or after entering the land, produce written evidence of their authority to do so; and

(b) may take onto the land such vehicles and equipment as are necessary to carry out the survey, monitoring or investigation or to make the trial holes.

(5) No surveying, monitoring or investigation to which paragraph (1) refers may be carried out under this article—

(a) in land located within the boundary of any highway for which the highway authority is responsible without its consent; or

(b) in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld or delayed.

(6) As soon as reasonably practicable following the completion of any activities carried out under paragraph (1), the undertaker must remove the apparatus used in connection with the activities and restore the land on which the activities were carried out to the reasonable satisfaction of the owners of the land; but the undertaker is not required to breach or fail to comply with a term of this Order.

(7) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) Section 13⁶² (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125⁶³ (application of compulsory acquisition provisions) of the 2008 Act.

Protective works

20

(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any land, building, structure, apparatus or equipment, lying within the Order limits or which may be affected by the construction or operation of the authorised project and is adjacent to but outside the Order limits, as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the carrying out in the vicinity of the land, building, structure, apparatus or equipment of any part of the authorised project; or

(b) after the completion of any part of the authorised project in the vicinity of the land, building, structure, apparatus or equipment, at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised project is first brought into operational use.

(3) For the purpose of determining how the functions under this article are to be exercised, the undertaker may enter and survey—

(a) any land, building, structure, apparatus or equipment, falling within paragraph (1) and any land within its curtilage; and

(b) where reasonably necessary, any land which is adjacent to the land, building, structure, apparatus or equipment, whether or not within Order limits,

and place on, leave on and remove from the land, building, structure, apparatus or equipment any apparatus and equipment for use in connection with the survey.

(4) For the purpose of carrying out protective works under this article to any land, building, structure, apparatus or equipment, the undertaker may (subject to paragraphs (5) and (6))—

(a) enter the land, building or structure and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the land, building or structure but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (2) to carry out protective works to any land, building, structure, apparatus or equipment;

(b) a right under paragraph (3) to enter and survey any land, building, structure, apparatus or equipment, and land within its curtilage or any adjacent land;

(d) a right under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specify the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (5)(c) or (5)(d), the owner or occupier of the land, building, structure, apparatus or equipment concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 61 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any land, building, structure, apparatus or equipment, in relation to which rights under this article have been exercised, for any loss or damage arising to them by reason of the exercise of those rights.

(8) Where—

(a) protective works are carried out under this article to any land, building, structure, apparatus or equipment; and

(b) within the period of five years beginning with the day on which the part of the authorised project carried out in the vicinity of the land, building, structure, apparatus or equipment is first brought into operational use it appears that the protective works are inadequate to protect the land, building, structure, apparatus or equipment against damage caused by the carrying out or use of that part of the authorised project,

the undertaker must compensate the owners and occupiers of the land, building, structure, apparatus or equipment for any loss or damage sustained by them.

(9) Subject to article 39 (no double recovery), nothing in this article relieves the undertaker from any liability to pay compensation under section 152⁶⁴ of the 2008 Act (compensation in case where no right to claim in nuisance).

(10) Section 13⁶⁵ (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto, or possession of, land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125⁶⁶) (application of compulsory acquisition provisions) of the 2008 Act.

(11) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(12) In this article “protective works” in relation to any land, building, structure, apparatus, equipment or part of the authorised project means—

(a) underpinning, strengthening, ground strengthening, earthing and any other works the purpose of which is to prevent damage which may be caused to the land, building, structure, apparatus, equipment or the authorised project by the carrying out, maintenance or use of the authorised project;

(b) any works the purpose of which is to remedy any damage which has been caused to the land, building, structure, apparatus or equipment by the carrying out, maintenance or use of the authorised project; and

(c) any works the purpose of which is to secure the safe operation of the authorised project or to prevent or minimise the risk of such operation being disrupted.

(13) This article does not apply to the land shaded yellow on the land plans.

(14) No protective works may be carried out under this article in land located within the boundary of any highway for which the highway authority is responsible without its consent but such consent must not be unreasonably withheld or delayed.

Removal of human remains

21

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

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

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

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

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

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

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

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

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

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

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (10).

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

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

(9) If—

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

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

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

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

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

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

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

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