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

(10) References in this article to private rights and restrictive covenants over land include any right of way, restrictive covenant, easement, trust, incident, wayleave, liberty, privilege, right or advantage annexed to land (including any land forming part of a common, open space or fuel or field garden allotment) and adversely affecting other land, including any natural right to support; and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Power to override easements and other rights

27

(1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) In this article “authorised activity” means—

(a) the erection, construction or maintenance of any part of the authorised project;

(b) the exercise of any power authorised by this Order; or

(3) The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support; and include restrictions as to the user of land arising by the virtue of a contract.

(4) Where an interest, right or restriction is overridden by paragraph (1), compensation—

(a) is payable under sections 7 (measure of compensation in case of severance) or 10[^f00074] (further provision as to compensation for injurious affection) of the 1965 Act; and

(b) is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where—

(i) the compensation is to be estimated in connection with a purchase under that Act; or

(ii) the injury arises from the execution of works on or use of land acquired under that Act.

(5) Where a person deriving title under the undertaker by whom the land in question was acquired—

(a) is liable to pay compensation by virtue of paragraph (4), and

(b) fails to discharge that liability,

the liability is enforceable against the undertaker.

(6) Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1) of this article.

(7) Paragraph (1) has effect subject to—

(a) any notice given by the undertaker, before the authorised activity which—

(i) interferes with an interest or right to which this article applies; or

(ii) breaches a restriction as to the user of land to which this article applies,

is begun that the paragraph does not apply to any interest, right or restriction as to the user of land specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the interest, right or restrictive covenant in question is vested, belongs or benefits.

(8) If any such agreement as is referred to in sub-paragraph (7)(b)—

(a) is made with a person in or to whom the interest, right or restriction is vested or belongs; and

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

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

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

Rights over or under streets

28

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

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

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

(a) any subway or underground building; or

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

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, who suffers loss as a result, 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.

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

Application of the 1981 Act

29

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

(2) The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

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

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

(4) In section 5[^f00075] (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A[^f00076] (time limit for general vesting declaration).

(6) In section 5B(1)[^f00077] (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 23 (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily) of the Associated British Ports (Immingham Green Energy Terminal) Order 2025”.

(7) In section 6[^f00078] (notices after extension of declaration), in subsection (1)(b) for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In section 7[^f00079] (constructive notice to treat), in subsection (1)(a) omit the words “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1[^f00080] (counter-notice requiring purchase of land not in general vesting declaration), for paragraph 1(2) substitute—

(2) But see article 25 (acquisition of subsoil or airspace only) of the Associated British Ports (Immingham Green Energy Terminal) Order 2025, which excludes the acquisition of subsoil only from this Schedule.

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 30 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Modification of Part 1 of the 1965 Act

30

(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied to this Order by section 125[^f00081] (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4A(1)[^f00082] (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to the High Court in respect of compulsory purchase order)”, the three year period mentioned in section 4 substitute “section 118[^f00083] (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 23 (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily) of the Associated British Ports (Immingham Green Energy Terminal) Development Consent Order 2025”.

(3) In section 11A[^f00084] (powers of entry: further notice of entry)—

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

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

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 23 (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily) of the Associated British Ports (Immingham Green Energy Terminal) Development Consent Order 2025”.

(5) In Schedule 2A[^f00085] (counter-notice requiring purchase of land not in notice to treat)—

(a) for paragraphs 1(2) and 14(2) substitute—

(2) But see article 25 (acquisition of subsoil or airspace only) of the Associated British Ports (Immingham Green Energy Terminal) Development Consent Order 2025, which excludes the acquisition of subsoil only from this Schedule.

; and

(b) after paragraph 29 insert—

(30) In this Schedule, references to entering on and taking possession of land do not include doing so under article 20 (protective works), article 0 (temporary use of land for constructing the authorised project) or article 32 (temporary use of land for maintaining the authorised project) of the Associated British Ports (Immingham Green Energy) Order 2025.

Temporary possession of land

Temporary use of land for constructing the authorised project

31

(1) The undertaker may, in connection with the carrying out of the authorised project but subject to article 23(2) (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily)—

(a) enter on and take temporary possession of—

(i) the land shown shaded green on sheets 3, 4, 5, 6 and 7 of the land plans, described in the book of reference and specified in column (2) of Schedule 13 (land of which only temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule; and

(ii) any other Order land shown shaded pink, blue or shown shaded and hatched blue on the land plans and described in the book of reference in respect of which no notice of entry has been served under section 11[^f00086] (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4[^f00087] (execution of declaration) of the 1981 Act; except that in respect of the land shaded and hatched blue on the land plans and described in the book of reference such entry and temporary possession pursuant to this sub-paragraph 31(a)(ii) may only be taken of the subsoil of that land;

(b) subject to article 33 (statutory undertakers), remove or reposition the apparatus belonging to statutory undertakers or the operators of any electronic communications code network;

(c) remove any buildings, agricultural plant and apparatus, drainage, fences, debris and vegetation from the land referred to in sub-paragraph 31;

(d) install apparatus to enable utility connections to temporary buildings and construct temporary works (including the provision of means of access), haul roads, security fencing, bridges, structures and buildings on the land referred to in sub-paragraph 31;

(e) use the land referred to in sub-paragraph 31 for the purposes of a temporary working site with access to the working site in connection with the authorised project;

(f) construct any works on the land referred to in sub-paragraph (a)(ii) as are mentioned in Schedule 1 (authorised project); and

(g) carry out mitigation works required under the requirements in Schedule 2 (requirements) on the land referred to in sub-paragraph 31.

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

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

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

except that the undertaker may take temporary possession of any garden or part of a garden belonging to a house in plots 7/1, 7/2, 7/3, 7/4, 7/5, 7/6, 7/7, 7/8, 7/9, 7/10 and 7/11 shown on sheet 7 of the land plans for the purposes of removing or repositioning apparatus belonging to statutory undertakers or the operators of any electronic communications code network pursuant to article 33 (statutory undertakers).

(3) Not less than 14 days before entering on and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).

(4) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of land referred to in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised project specified in relation to that land in column (3) of Schedule 13 (land of which only temporary possession may be taken); or

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

(5) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—

(a) replace a building removed under this article;

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

(c) remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised project;

(d) remove or reposition any apparatus belonging to statutory undertakers, or measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised project;

(e) remove or reposition necessary mitigation works;

(f) remove any drainage works; or

(g) restore ground levels adjusted as part of the authorised project.

(6) Any dispute as to the removal of temporary works and restoration of land under paragraph (5) does not prevent the undertaker giving up possession of the land.

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

(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(9) Subject to article 39 (no double recovery), nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised project, other than loss or damage for which compensation is payable under paragraph (7).

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

(11) Section 13[^f00088] of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(12) Nothing in this article prevents the undertaker from taking temporary possession more than once in relation to any land specified in paragraph 31.

Temporary use of land for maintaining the authorised project

32

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

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

(b) enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised project; and

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

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

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

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

(d) any land located within the boundary of any highway for which the highway authority is responsible.

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and that notice must state the period for which temporary possession will be taken and the purpose for which the undertaker intends to take possession of the land except as provided in paragraph (11).

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

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

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

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(8) Subject to article 39 (no double recovery), nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the maintenance of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

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

(10) Section 13 (refusal to give possession to the 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 125 (application of compulsory acquisition provisions) of the 2008 Act.

(11) Where the undertaker has identified a potential risk to the safety of—

(a) the authorised project or any part of it;

(b) the public; or

the requirement to serve notice under paragraph (3) does not apply and the undertaker may enter the land pursuant to paragraph (1) subject to giving such period of notice (if any) as is reasonably practicable in all the circumstances.

(12) In this article “the maintenance period” in relation to any part of the authorised project means the period of five years beginning with the date on which that part of the authorised project is brought into operational use by the undertaker.

Supplementary

Statutory undertakers

33

(1) Subject to the provisions of paragraph (1)(b) of article 24 (compulsory acquisition of rights), Schedule 14 (protective provisions) and paragraph (2), the undertaker may—

(a) acquire compulsorily, or acquire new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers or the operators of any electronic communications code network;

(b) extinguish the rights of statutory undertakers or the operators of any electronic communications code network over or within the Order land;

(c) remove or reposition the apparatus belonging to statutory undertakers or the operators of any electronic communications code network over or within the Order land; and

(d) construct the authorised project in such a way as to cross underneath or over apparatus belonging to statutory undertakers or the operators of any electronic communications code network within the Order land.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

(a) Part 3 (street works in England and Wales) of the 1991 Act; and

(b) Article 17 (apparatus and rights of statutory undertakers in stopped up streets).

Recovery of costs of new connections

34

(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 33 (statutory undertakers), any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer, but where such a sewer is removed under article 33 any person who is—

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

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

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

(3) This article does not have effect in relation to apparatus to which article 17 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this article—

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

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

Acquisition of part of certain properties

35

(1) This article applies where—

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

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

(2) In such a case, the owner may, within the period of 28 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

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

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

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

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

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

the owner is required to sell the land subject to the notice to treat.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Compulsory acquisition of land – incorporation of the mineral code

36

Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981[^f00089] (minerals) are incorporated into this Order subject to the modifications that—

(a) paragraph 8(3) is not incorporated;

(b) for “the acquiring authority” there is substituted “the undertaker”;

(d) for “compulsory purchase order” substitute “this Order”.

Compensation

Disregard of certain interests and improvements

37

(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the Upper Tribunal must not take into account—

(a) any interest in land; or

(b) any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the Upper Tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration as part of the authorised project was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made as part of the authorised project, directly or indirectly concerned.

Set-off for enhancement in value of retained land

38

(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including any subsoil) the Upper Tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised project.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil), under article 24 (compulsory acquisition of rights), the Upper Tribunal must set off against the value of the rights so acquired—

(a) any increase in the value of the land over which the new rights are required; and

(b) any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised project.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2), as if this Order were a local enactment for the purposes of that Act.

No double recovery

39

Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.

PART 4 — OPERATIONAL PROVISIONS

Authorisation of operation and use

40

Subject to the provisions of this Order and to the requirements set out in Schedule 2 (requirements), the undertaker and any persons authorised by the undertaker may operate and use the authorised project for which development consent is granted by this Order.

Maintenance of authorised project

41

(1) The undertaker may at any time maintain the authorised project within the Order limits, except to the extent that this Order or an agreement made under this Order, provides otherwise.

(2) This article does not authorise the carrying out of any works which are likely to give rise to any materially new or materially different effects that have not been assessed in the environmental statement or in any environmental information supplied under the 2017 Regulations.

Limits of dock master’s jurisdiction

42

(1) Subject to the provisions of paragraph (2) of this article, the limits within which the powers of the dock master under any enactment may be exercised include the area of jurisdiction.

(2) The powers conferred by this article are, so far as applicable to vessels, limited to vessels going to, moored at or departing from any part of the area of jurisdiction and must not be exercised so as to affect vessels navigating or at anchor in the channels of the River Humber unless such vessels obstruct access to the area of jurisdiction.

Area of jurisdiction to form part of the undertaking and application of byelaws

43

(1) The area of jurisdiction for all purposes forms part of the undertaking.

(2) The Immingham Dock Byelaws 1929 apply in relation to the limits within which the powers of the dock master may be exercised under article 42(1) (limits of dock master’s jurisdiction) of this Order and may be enforced by the Company accordingly until such time as new byelaws relating to the area within such limits are made by the Company and come into operation.

(3) In the Immingham Dock Byelaws 1929, as applied by paragraph (1) above—

(a) references to “the prescribed limits” include limits within which the powers of the dock master may be exercised under article 42(1) (limits of dock master’s jurisdiction) of this Order; and

(b) any activity carried out pursuant to this Order is not a breach of byelaw 52 if it is with the written approval of the Company.

(4) In this article “Immingham Dock Byelaws 1929” means the byelaws made by the London and North Eastern Railway Company on 1 January 1929 and confirmed by the Minister of Transport on 4 January 1929.

Power to appropriate

44

(1) Regardless of anything in section 33 of the 1847 Act (harbour, dock and pier to be free to the public on payment of rates) or any other enactment, the dock master may from time to time set apart and appropriate any part of the area of jurisdiction for the exclusive or preferential use and accommodation of any trade, person, vessel or goods or any class of trader, vessel or goods, subject to the payment of such charges and to such terms, conditions and regulations as the dock master may think fit.

(2) No person or vessel may make use of any part of the authorised project or such area so set apart or appropriated without the consent of the dock master and—

(a) the dock master may order any person or vessel making use of the authorised project or such area without such consent to be removed; and

(b) the provisions of section 58 of the 1847 Act (powers of harbour master as to mooring of vessels in harbour), as incorporated by this Order, extend and apply with the necessary modifications to any such vessel.

Powers to dredge

45

(1) The Company may dredge, deepen, scour, cleanse, alter and improve the river bed and foreshore within any part of the Order limits situated within the River Humber as may be required for the purpose of constructing, maintaining and operating the authorised project.

(2) Subject to paragraph (3), the Company may use, deposit or otherwise dispose of materials dredged or removed (other than a wreck within the meaning of Part 9 (salvage and wreck) of the Merchant Shipping Act 1995[^f00090]) as it thinks fit.

(3) No materials dredged under the powers of this Order may be disposed of in the UK marine area except in accordance with the deemed marine licence or under any other marine licence granted by the MMO.

(4) In respect of any activities falling within paragraph (1) this Order is deemed to be ‘legislation’ falling within section 75(3) (exemptions for certain dredging, etc. activities) of the 2009 Act.

PART 5 — MISCELLANEOUS AND GENERAL

Benefit of Order

46

(1) Subject to the remaining paragraphs of this article—

(a) the provisions of this Order conferring a power only on the Company, the dock master or the statutory harbour authority have effect solely for the benefit of (as applicable) the Company, the dock master or the statutory harbour authority; and

(b) the other provisions of this Order have effect solely for the benefit of the undertaker.

(2) Paragraph (1)(b) does not apply to the following provisions, of which the Company has the sole benefit—

(a) article 22 (compulsory acquisition of land);

(b) article 24 (compulsory acquisition of rights);

(d) articles 33(1)(a) and (b) (statutory undertakers); and

(e) article 35 (acquisition of part of certain properties),

unless the Secretary of State consents to the transfer of the benefit of those provisions.

(3) Paragraph (1)(b) does not apply to the following provisions, of which the Company and, to the extent specified in paragraph (4), Air Products have the benefit—

(a) article 19 (authority to survey and investigate the land);

(b) article 20 (protective works);

(d) article 32 (temporary use of land for maintaining the authorised project),

unless the Secretary of State consents to the transfer of the benefit of those provisions.

(4) Air Products has the benefit of the provisions to which paragraph (3) refers solely 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.

(5) Paragraph (1)(b) does not apply to article 26(8) (private rights) or article 27(7) (power to override easements and other rights) insofar as only the Company has the benefit of the powers conferred on the undertaker to give the notices or make the agreements to which those articles refer, unless the Secretary of State consents to the transfer of the benefit of those powers.

(6) Paragraph (1) does not apply to article 55(2) (planning legislation) insofar as only the Company has the benefit of the power conferred on the undertaker to serve a notice to which that article refers, unless the Secretary of State consents to the transfer of the benefit of that power.

(7) Paragraph (8) applies in any case where the benefit of a provision of this Order is required by a statutory undertaker for the purpose of—

(a) the installation, connection, removal or alteration of the position of services and apparatus including overhead cables and lines and above ground or below ground pipes, pipelines, sewers, watercourses, drains and cables and other conducting media and any pipe sleeves, ducts and culverts in which any apparatus is lodged (in each aforementioned case) comprised in Schedule 1 (authorised project); or

(b) diverting, replacing or protecting apparatus of that statutory undertaker.

(8) Where the undertaker has the benefit of a provision to which paragraph (7) refers, it may—

(a) transfer to a statutory undertaker to which paragraph (7) refers any or all of the benefit of the provision and such related statutory rights as may be agreed between the undertaker and the statutory undertaker;

(b) grant to such a statutory undertaker to which paragraph (7) refers, for a period agreed between the undertaker and the statutory undertaker any or all of the benefit of the provision and such related statutory rights as may be so agreed between the undertaker and the statutory undertaker.

(9) The consent of the Secretary of State is required for the purposes of paragraph (8) where the provision to be transferred or granted to the paragraph (7) statutory undertaker is listed in paragraph (11) except where the transfer or grant is to—

(a) a licence holder within the meaning of Part 1 of the Electricity Act 1989;

(b) a gas transporter within the meaning of Part 1 of the Gas Act 1986;

(d) the operator of an electronic communications code network.

(10) Where the Company has with the benefit of any provision of this Order it may pursuant to this paragraph—

(a) transfer to Air Products any or all of the benefit of the provision (excluding the deemed marine licence) and such related statutory rights as may be agreed between the undertaker and that person; and

(b) grant to Air Products for a period agreed between the undertaker and that person any or all of the benefit of the provision (excluding the deemed marine licence) and such related statutory rights as may be so agreed between the undertaker and that person,

except this paragraph does not apply to any provision listed in paragraph (11).

(11) The provisions to which paragraphs (9) and (10) refer are—

(a) article 19 (authority to survey and investigate the land);

(b) article 20 (protective works);

(d) article 24 (compulsory acquisition of rights);

(e) article 25 (acquisition of subsoil or airspace only);

(f) article 31 (temporary use of land for constructing the authorised project);

(g) article 32 (temporary use of land for maintaining the authorised project);

(h) articles 33(1)(a) and (b) (statutory undertakers); and

(i) article 35 (acquisition of part of certain properties).

(12) Where the undertaker has the benefit of any provision of the deemed marine licence it may, with the consent of the Secretary of State—

(a) transfer to any person any or all of the benefit of the provision and such related statutory rights as may be agreed between the undertaker and that person;

(b) grant to any person for a period agreed between the undertaker and that person any or all of the benefit of the provision and such related statutory rights as may be so agreed between the undertaker and that person,

but the Secretary of State must consult the MMO before giving such consent to the transfer or grant to another person of the benefit of the provision and such related statutory rights.

(13) Any transfer or grant under paragraph (12) does not take effect until the undertaker has given notice to the MMO stating—

(a) the name and contact details of the person to whom the benefit of the provision will be transferred or granted;

(b) the date on which the transfer or grant will take effect (which must be at least 28 days after the date on which the notice is given); and

and providing a copy of the consent given by the Secretary of State to the transfer or grant and a copy of the transfer or grant itself; and the MMO may update its records in respect of the deemed marine licence accordingly.

(14) Section 72(7) and (8) (variation, suspension, revocation and transfer) of the 2009 Act do not apply to a transfer or grant of the benefit of any provision of the deemed marine licence pursuant to paragraph (12).

(15) Paragraph (12) does not prevent an application to the MMO pursuant to section 72(7) of the 2009 Act to transfer the deemed marine licence to another person and vary it accordingly.

(16) Where a transfer or grant has been made in accordance with this article references in this Order to the undertaker, except in paragraph (17), include references to the person to whom the benefit of provisions of this Order have been transferred or granted to the extent that the person has the benefit of such provisions and paragraph (17) applies to that person.

(17) Where the undertaker has transferred any benefit (“transferor”), or for the duration of any period during which the undertaker has granted any benefit (“grantor”), under this article the exercise by a person of any benefits or rights conferred in accordance with any transfer or grant, is subject to the same restrictions, liabilities and obligations under this Order as would apply if those benefits or rights were exercised by the transferor or grantor.

(18) Where a transfer or grant has been made in accordance with this article—

(a) the benefit transferred or granted (“the transferred benefit”) includes any rights that are conferred, and any obligations that are imposed by virtue of the provisions to which the benefit relates; and

(b) the transferred benefit resides exclusively with the person to whom the benefit has been transferred or, as the case may be, granted and the transferred benefit will not be enforceable against the undertaker.

(19) Paragraph (1)(b) does not apply to the works for which consent is granted by this Order for the express benefit of owners and occupiers of land, statutory undertakers, operators of the electronic communications code network and other persons affected by the authorised project.

(20) Where both the Company and Air Products have the benefit in relation to the same land of—

(a) article 19 (authority to survey and investigate the land);

(b) article 20 (protective works);

(d) article 32 (temporary use of land for maintaining the authorised project),

each may exercise the powers conferred by the article in question on its terms at the same time on such terms as they may agree with each other in writing; and the exercise of such a power by one on its terms does not prevent subsequent exercise of it on its terms by the other.

(21) No person may be—

(a) held liable in any manner for breaching or otherwise failing to comply with a term of this Order except where they are the person who (as applicable) has carried out, or caused to be carried out, that part of the authorised project to which the breach or failure relates or has exercised, or caused to be exercised, the provision of this Order to which the breach or failure relates; or

(b) required to comply with a term of this Order except where they are the person who (as applicable) has carried out, or caused to be carried out, that part of the authorised project to which the term relates or has exercised, or caused to be exercised, the provision of this Order to which the term relates.

Deemed marine licence

47

The undertaker is granted a deemed marine licence under Part 4 (marine licensing) of the 2009 Act to carry out the activities specified in Part 1 of Schedule 3 (deemed marine licence), subject to the licence conditions set out in Part 2 of that Schedule.

Saving for Trinity House

48

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

49

In case of damage to, or destruction or decay of, a tidal work or any part of it, the undertaker must as soon as reasonably practicable notify Trinity House, the statutory harbour authority and the Statutory Conservancy and Navigation Authority (as relevant) and must lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House and the statutory harbour authority or Statutory Conservancy and Navigation Authority (as relevant) may from time to time direct.

Lights on tidal works during construction

50

(1) The undertaker must at or near—

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

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

during the whole time of their construction, alteration, replacement or extension, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House and the statutory harbour authority or Statutory Conservancy and Navigation Authority (as relevant) may from time to time direct.

(2) In this article, “area of seaward construction activity” means the area of the sea within the Order limits.

Permanent light on tidal works

51

After a completion of a tidal work, the undertaker must at the outer extremity of the tidal work exhibit every night from sunset to sunrise such lights, and take such steps for the prevention of danger to navigation as Trinity House and the statutory harbour authority or Statutory Conservancy and Navigation Authority (as relevant) may from time to time direct.

Application of landlord and tenant law

52

(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised project 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 project, or any part of it,

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

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

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

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

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

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

Felling or lopping of trees and removal of hedgerows

53

(1) Subject to article 54 (trees subject to tree preservation orders), the undertaker may fell, lop, prune, coppice, pollard, or reduce in height or width, any tree or shrub under or within or overhanging any part of the land within the Order limits, or cut back its roots, if the undertaker reasonably believes it to be necessary to do so to prevent the tree, shrub, hedgerow or important hedgerow—

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

(b) from constituting a danger to persons constructing, maintaining, operating or decommissioning the authorised project.

(2) In carrying out any activity authorised by paragraph (1)—

(a) the undertaker must not cause any unnecessary damage to any tree, shrub or hedgerow, or important hedgerow;

(b) the undertaker must pay compensation to any person for any loss or damage arising from such activity;

(d) for the purposes of section 9[^f00091] (requirement of licence for felling) of the 1967 Act, any felling comprised in carrying out of any work or operation required for the purposes of, or in connection with, the construction of the authorised development, is deemed to be immediately required for the purpose of carrying out development authorised by planning permission granted under the 1990 Act.

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

(4) Subject to paragraph (2), the undertaker may, for the purposes of carrying out the authorised project—

(a) remove any hedgerow within the area edged and shaded purple and labelled “area of hedgerows to be removed” on the plan of potentially affected hedgerows and trees subject to preservation orders; and

(b) without limitation on the scope of sub-paragraph (a) and with the consent of the relevant planning authority, remove or translocate any other hedgerow within the Order limits that is required to be removed.

(5) The grant of consent of the relevant planning authority pursuant to paragraph (4)(b) must not be unreasonably withheld.

(6) The undertaker may not, pursuant to paragraph (1), fell or lop a tree within or overhanging the extent of highway maintainable at the public expense without the consent of the highway authority.

(7) The power conferred by paragraph (1) removes any obligation upon the undertaker to secure any consent to remove hedgerows or any part thereof under the Hedgerows Regulations 1997[^f00092].

(8) In this article “hedgerow” has the same meaning as in the Hedgerow Regulations 1997 and includes important hedgerows.

Trees subject to tree preservation orders

54

(1) The undertaker may fell, lop, prune or cut back the roots of—

(a) any tree subject to a tree preservation order within the area edged and shaded green and labelled “area of TPO trees to be removed (including tree canopy)” on the plan of potentially affected hedgerows and trees subject to preservation orders; and

(b) any other tree within the Order limits subject to a tree preservation order, if it reasonably believes it to be necessary in order to do so to prevent the tree—

(i) from obstructing or interfering with the construction, maintenance, operation or decommissioning of the authorised project or any apparatus used in connection with the authorised project; or

(ii) from constituting a danger to persons constructing, maintaining, operating or decommissioning the authorised project.

(2) In carrying out any activity authorised by paragraph (1)(b) the undertaker must—

(a) obtain the written approval of the relevant planning authority prior to that activity taking place; and

(b) do no unnecessary damage to any tree in respect of which the activity is carried out.

(3) In carrying out any activity authorised by paragraph (1)—

(a) the undertaker must do no unnecessary damage to any tree or shrub;

(b) the undertaker must pay compensation to any person for any loss or damage arising from such activity;

(d) for the purposes of section 9 (requirement of licence for felling) of the 1967 Act any felling comprised in carrying out of any work or operation required for the purposes of, or in connection with, the construction of the authorised development, is deemed to be immediately required for the purpose of carrying out development authorised by planning permission granted under the 1990 Act.

(4) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

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

Planning legislation

55

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

(2) As from the date on which the authorised project is begun if the undertaker serves a notice on the relevant planning authority that any of the conditions to which a planning permission granted pursuant to section 57 (planning permission required for development) of the 1990 Act is subject prior to the making of this Order and which relate to the Order limits cease to have effect to the extent that they are inconsistent with the authorised project or anything done or approved pursuant to this Order then the notice will immediately have that effect; except that this sub-paragraph (2) does not apply to any existing early works planning permission or new early works planning permission.

(3) Before beginning Work No. 2, Work No. 3, Work No. 5 or Work No. 7 (as applicable) under this Order, the undertaker must serve notice on the relevant planning authority—

(a) that it intends to begin Work No. 2, Work No. 3, Work No. 5 or Work No. 7 (as applicable) under this Order; and

(b) specifying in that notice any existing early works planning permission or new early works planning permission under which works also comprised within Work No. 2, Work No. 3, Work No 5 or Work No. 7 (as applicable) have begun and whether or not such works have been completed.

(4) From the date of service of any notice pursuant to paragraph (3)—

(a) the undertaker must cease to carry out development under any existing early works planning permission or new early works planning permission specified in that notice; and

(b) the conditions to which an existing early works planning permission or new early works planning permission specified in that notice are subject will be unenforceable except in respect of—

(i) any breach that occurred prior to the undertaker serving notice pursuant to paragraph (3); and

(ii) any conditions of the existing early works planning permission or new early works planning permission that relate to the statutory requirement under Schedule 7A (biodiversity gain in England) to the 1990 Act for biodiversity net gain.

(5) The undertaker must not begin Work No. 2, Work No. 3, Work No. 5 or Work No. 7 (as applicable) under this Order until notice has been served under paragraph (3).

(6) Notwithstanding paragraphs (3) and (4), the undertaker may exercise any other powers under this Order in respect of any part of the authorised project prior to or following service of notice under paragraph (3).

(7) Without prejudice to the generality of paragraph (6), the undertaker may discharge any requirement in Schedule 2 (requirements) of this Order at any time prior to or following the service of notice under paragraph (3).

(8) Where details, documents, plans, works or any other matters have been imposed as a condition, or approved or agreed pursuant to a condition, of any existing early works planning permission or new early works planning permission prior to the date on which the undertaker serves notice under paragraph (3), the relevant planning authority and the undertaker must agree in writing which details, documents, plans, works or other matters under the existing early works planning permission or new early works planning permission will be deemed to have been discharged, approved, agreed, obtained or undertaken for the purposes of the requirements in Schedule 2 (requirements) of this Order relating to all or part of Work No. 2, Work No. 3, Work No. 5 or Work No. 7 (as applicable); and upon that agreement being reached in writing it will immediately have that effect.

(9) In this article “begin” and “begun” mean for the purposes of section 155 (when development begins) of the 2008 Act.

(10) It does not constitute a breach of the terms of this Order if, following the coming into force of this Order, any development, or any part of a development, is carried out, used, operated or decommissioned within the Order limits in accordance with any planning permission granted under the 1990 Act (including a planning permission granted under article 3 (permitted development) and Class B (dock, pier, harbour, water transport, canal or inland navigation undertakings) of Part 8 (transport related development) of Schedule 2 (permitted development rights) to the Town and County Planning (General Permitted Development) (England) Order 2015[^f00093]); and nothing done pursuant to any such planning permission prevents the undertaker from constructing, operating, using, maintaining or decommissioning any part of the authorised project pursuant to this Order which has not been carried out pursuant to such planning permission.

(11) This Order does not constitute a planning permission for the purposes of Part 11 (community infrastructure levy) of the 2008 Act notwithstanding the definition of planning permission contained within article 5 (meaning of planning permission) of the 2010 Regulations.

(12) The authorised project, including any part of it, may be delivered in severable phases subject to paragraph 5 (phasing) of Schedule 2 (requirements).

Traffic regulation measures

56

(1) Subject to the provisions of this article, the undertaker may, for the purposes of the authorised project—

(a) make provision, in respect of those lengths of road specified in column (2) of Part 1 (permanent speed limits) of Schedule 10 (traffic regulation measures), imposing the permanent speed limit specified in column (3) of that Part of that Schedule;

(b) make provision, in respect of those lengths of road specified in column (2) of Part 2 (temporary prohibition of parking) of Schedule 10 (traffic regulation measures) prohibiting the parking of vehicles to the extent specified in column (3) of that Part of that Schedule;

(c) make provision, in respect of those lengths of road specified in column (2) of Part 3 (temporary road closures) of Schedule 10 (traffic regulation measures) temporarily closing that road to the classes of road user specified in column (3) of that Part of that Schedule;

(d) make provision, in respect of those lengths of road specified in column (2) of Part 4 (priority of vehicular traffic) of Schedule 10 (traffic regulation measures), as to the priority of vehicular traffic as specified in column (3) of that Part of that Schedule; and

(e) revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act in so far as it is inconsistent with any prohibition, restriction or other provision made by the undertaker under this paragraph.

(2) No speed limit imposed by or under this Order applies to vehicles falling within regulation 3(4) (regulations in relation to orders and notices under the 1984 Act) of the Road Traffic Exemptions (Special Forces) (Variation and Amendment) Regulations 2011[^f00094] when used in accordance with regulation 3(5) of those regulations.

(3) Subject to the provisions of this article, and the consent of the traffic authority in whose area the road is situated, the undertaker may for the purposes of construction, operation, maintenance and decommissioning of the authorised project, temporarily place traffic signs and signals on any road and, subject to the consent of the traffic authority in whose area the road is situated, the placing of those traffic signs and signals is deemed to have been permitted by the traffic authority for the purposes of section 65 of the 1984 Act and the Traffic Signs Regulations and General Directions 2016[^f00095].

(4) Without limiting the scope of the specific powers conferred by paragraph (1) but subject to the provisions of this article and the consent of the traffic authority in whose area the road concerned is situated, the undertaker may, in so far as expedient or necessary for the purposes of, in connection with, or in consequence of the construction, maintenance, operation and decommissioning of the authorised project—

(a) revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

(b) permit, prohibit or restrict the stopping, parking, waiting, loading or unloading of vehicles on any road;

(d) make provision as to the maximum speed, routes, direction or priority of vehicular traffic on any road; and

(e) permit, prohibit or restrict vehicular access or use to or on any road,

either at all times or at times, on days or during such periods as may be specified by the undertaker.

(5) The undertaker must not exercise the powers in paragraphs (1), (3) and (4) unless it has—

(a) given not less than—

(i) 12 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect permanently; and

(ii) 4 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect temporarily,

to the chief officer of police and to the traffic authority in whose area the road is situated and that notice must include the time periods within which the traffic authority may specify the manner in which, under sub-paragraph (b), the undertaker must advertise its intention to exercise the powers conferred by paragraphs (1), (3) and (4); and

(b) advertised its intention in such manner as the traffic authority may specify in writing within—

(i) 28 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(i); or

(ii) within seven days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(ii).

(6) Any prohibition, restriction or other provision made by the undertaker under paragraphs (1), (3) or (4)—

(a) has effect as if duly made by, as the case may be—

(i) the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act; or

(ii) the local authority in whose area the road is situated as an order under section 32 (power of local authorities to provide parking places) of the 1984 Act,

and the instrument by which it is effected, to be in such form as the undertaker considers appropriate, may specify savings and exemptions to which the prohibition, restriction or other provision is subject; and

(b) is deemed to be a traffic order for the purposes of Schedule 7 (road traffic contraventions subject to civil enforcement) to the Traffic Management Act 2004[^f00096]; and

(c) must be advertised in the same manner as the undertaker’s intention to make the prohibition, restriction or other provision was under paragraph (5)(b).

(7) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by the undertaker from time to time by subsequent exercise of the powers conferred by paragraphs (1), (3) and (4).

(8) Before exercising the powers conferred by paragraphs (1), (3) or (4) the undertaker must consult such persons as the undertaker considers necessary and appropriate and have regard to the representations made to the undertaker by any such person.

(9) An order made under paragraph (4)(a) may be varied or revoked by an order made by the highway authority under the 1984 Act.

Defence to proceedings in respect of statutory nuisance

57

(1) Where proceedings are brought under section 82(1)[^f00097] of the Environmental Protection Act 1990 (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraphs (b), (d), (e), (fb), (g), (ga) and, so far as relevant to sections 259(1)(a) and (b) of the Public Health Act 1936[^f00098], (h) of section 79(1)[^f00099] (statutory nuisances and inspections thereof) of the Environmental Protection Act 1990 no order is to be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction, maintenance, operation or decommissioning of the authorised project and that the nuisance is attributable to such activity or use in accordance with—

(i) a notice served under section 60 of the Control of Pollution Act 1974[^f00100] (control of noise on construction site);

(ii) a consent given under section 61 (prior consent for work on a construction site) of that Act; or

(iii) the applicable controls and measures relating to smoke, dust, accumulations, deposits, light, noise, vibration, lighting or ponds, pools, ditches, gutters or watercourses described in the relevant construction environmental management plan, construction traffic management plan, drainage strategy, lighting strategy, noise management scheme or decommissioning environmental management plan approved (as applicable) by—

(aa) the relevant planning authority pursuant to the relevant provision of Schedule 2 (requirements);

(bb) by the MMO pursuant to the relevant term of the deemed marine licence or of any marine licence granted or varied pursuant to the 2009 Act (including any variation of the deemed marine licence), or in the Long Strip construction environmental management plan,

or in accordance with noise and lighting levels set out in an environmental permit relating to the construction, maintenance, operation or decommissioning of the relevant part of the authorised project; or

(b) is a consequence of the construction, maintenance, operation or decommissioning of the authorised project and that it cannot reasonably be avoided.

(2) Section 61(9) of the Control of Pollution Act 1974[^f00101] (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[^f00102]) 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, maintenance or decommissioning of the authorised project.

(3) In proceedings for an offence under section 80(4) of the Environmental Protection Act 1990 (offence of contravening abatement notice) in respect of a statutory nuisance falling within paragraphs (b), (d), (e), (fb), (g), (ga) and, so far as relevant to section 259 of the Public Health Act 1936, (h) of the Environmental Protection Act 1990 where the offence consists in contravening requirements imposed by virtue of section 80(1)(a) or (b) of that Act, it is a defence to show that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction, maintenance, operation or decommissioning of the authorised project and that the nuisance is attributable to such use in accordance with—

(i) a notice served under section 60 of the Control of Pollution Act 1974 (control of noise on construction site);

(ii) a consent given under section 61 (prior consent for work on a construction site) of that Act; or

(iii) the applicable controls and measures relating to smoke, dust, accumulations, deposits, light, noise, vibration, lighting or ponds, pools, ditches, gutters or watercourses described in the relevant construction environmental management plan, construction traffic management plan, drainage strategy, lighting strategy, noise management scheme or decommissioning environmental management plan approved by—

(aa) the relevant planning authority pursuant to the relevant provision of Schedule 2 (requirements); or

(bb) the MMO pursuant to the relevant term of the deemed marine licence or of any marine licence granted or varied pursuant to the 2009 Act (including any variation of the deemed marine licence),

or in the Long Strip construction environmental management plan or in accordance with noise and lighting levels set out in an environmental permit relating to the construction, maintenance, operation or decommissioning of the relevant part of authorised project; or

(b) is a consequence of the construction, maintenance, operation or decommissioning of the authorised project and that it cannot reasonably be avoided.

Protection of interests

58

Schedule 14 (protective provisions) has effect.

Crown rights

59

(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 on 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) A consent under paragraph (1)—

(a) may be given unconditionally or subject to terms and conditions; and

(b) is deemed to have been given in writing where it is sent electronically.

Application of sections 91(3A) and (3B) of the 1990 Act

60

For the purposes of this Order, sections 91(3A) and (3B) (general condition limiting duration of planning permission) of the 1990 Act apply in the circumstances set out in those provisions to extend the time limit specified in paragraph (1) of article 23 (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily) and paragraph 2 (time limit for beginning of the authorised project) of Schedule 2 (requirements) as if this Order were a planning permission to develop land in England pursuant to the 1990 Act.

Arbitration

61

(1) Subject to article 62 (procedure regarding certain approvals, etc.) and except where otherwise expressly provided for in this Order or unless otherwise agreed between the parties, any difference under any provision of this Order must be referred to and settled in arbitration in accordance with the rules set out in Schedule 16 (arbitration rules) of this Order, by a single arbitrator to be agreed between the parties, within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, 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) This article does not apply to—

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