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

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

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

• (12) No notice is required under paragraph (3) before the removal of any human remains where the undertaker is satisfied—

• (a) that the remains were interred more than 100 years ago; and

• (b) that no relative or personal representative of the deceased is likely to object to the remains being removed in accordance with this article.

• (13) In the case of remains in relation to which paragraph (12) applies, the undertaker—

• (a) may remove the remains;

• (b) must apply for direction from the Secretary of State under paragraph (15) as to their subsequent treatment; and

• (c) must deal with the remains in such manner, and subject to such conditions, as the Secretary of State directs.

• (14) In this article—

• (a) references to a relative of the deceased are to a person who—

• (i) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased; or

• (ii) is, or is a child of, a brother, sister, uncle or aunt of the deceased; and

• (b) references to a personal representative of the deceased are to a person who—

• (i) is the lawful executor of the estate of the deceased; or

• (ii) is the lawful administrator of the estate of the deceased.

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

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

• (17) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857⁶⁷ does not apply to a removal carried out in accordance with this article.

• (18) The Town and Country Planning (Churches, Places of Religious Worship and Burial Ground) Regulations 1950⁶⁸ do not apply to the authorised project.

• (19) Sections 238 and 239 (use and development of consecrated land and burial grounds) of the 1990 Act apply—

• (a) in relation to land, other than a right over land, acquired for the purposes of the authorised project (whether or not by agreement), so as to permit use by the undertaker in accordance with the provisions of this Order; and

• (b) in relation to a right over land so acquired (whether or not by agreement), or the temporary use of land pursuant to articles 0 (temporary use of land for constructing the authorised project) and 32 (temporary use of land for maintaining the authorised project), so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order, without prejudice to the status of the land over which the right is exercised as consecrated land,

and in section 238(1)(b) of the 1990 Act reference to a “planning permission” includes this Order, in section 240(1) of the 1990 Act reference to “regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as applicable to land or a right over land acquired under this Order, paragraphs (2) to (16) of this article and in section 240(3) of the 1990 Act reference to a “statutory undertaker” includes the undertaker and reference to “any other enactment” includes this Order.

PART 3 — ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Compulsory acquisition of land

22

• (1) The undertaker may—

• (a) acquire compulsorily so much of the land shaded pink on the land plans and described in the book of reference as is required for the construction, operation, use or maintenance of the authorised project, or to facilitate it, or which is incidental to it; and

• (b) use any land so acquired for the purposes authorised by this Order or for any other purposes in connection with or ancillary to the construction, operation, or maintenance of the authorised project.

• (2) This article is subject to article 23 (time limit for exercise of powers to acquire land compulsorily or to possess land temporarily), article 24(1) (compulsory acquisition of rights), article 25 (acquisition of subsoil or airspace only), article 28 (rights over or under streets), article 0 (temporary use of land for constructing the authorised project) and article 59 (Crown rights).

Time limit for exercise of powers to acquire land compulsorily or to possess land temporarily

23

• (1) After the end of the period of five years beginning with the day on which this Order comes into force—

• (a) no notice to treat may be served under Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act as modified by article 30 (modification of Part 1 of the 1965 Act); and

• (b) no declaration may be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 29 (application of the 1981 Act),

in relation to any part of the Order land shown shaded pink, blue or shown shaded and hatched blue on the land plans and described in the book of reference.

• (2) The authority conferred by article 0 (temporary use of land for constructing the authorised project) ceases after the end of the period of five years beginning with the day on which this Order comes into force except that—

• (a) in relation to 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 such authority ceases at the end of the period of ten years beginning with the day on which this Order comes into force; and

• (b) nothing in this paragraph prevents the undertaker remaining in possession of land after the end of such applicable period if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights and restrictive covenants

24

• (1) Subject to the following provisions of this article—

• (a) the undertaker may acquire compulsorily such rights over the land shaded pink on the land plans and described in the book of reference or impose restrictive covenants affecting such land as may be required for any purpose for which that land may be acquired under article 22 (compulsory acquisition of land), by creating them as well as by acquiring rights already in existence;

• (b) the undertaker may in the case of the land shaded blue or shaded and hatched blue on the land plans, described in the book of reference and specified in columns (1) and (2) of Schedule 12 (land in which only new rights and restrictive covenants, etc. may be acquired) acquire compulsorily the existing rights and create and acquire compulsorily the new rights and impose the restrictive covenants for the purpose specified in relation to that land in column (3) of that Schedule and relating to that part of the authorised project specified in column (4) of that Schedule.

• (2) Subject to section 8⁶⁹ (other provisions as to divided land) of, and Schedule 2A⁷⁰ (counter-notice requiring purchase of land not in notice to treat) to, the 1965 Act, (as substituted by paragraph 5(8) of Schedule 11 (modification of compensation and compulsory purchase enactments for the creation of new rights and imposition of new restrictive covenants)), where the undertaker creates or acquires a right over land or the benefit of a restrictive covenant under paragraph (1) the undertaker is not required to acquire a greater interest in that land.

• (3) Schedule 11 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of restrictive covenants.

• (4) This article is subject to article 59 (Crown rights).

Acquisition of subsoil or airspace only

25

• (1) The undertaker may acquire compulsorily so much of, or such rights over, the subsoil of and the airspace over the land referred to in article 22(1) (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

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

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

• (a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 30 (modification of Part 1 of the 1965 Act));

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

• (c) section 153(4A)⁷¹ (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

• (4) Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Private rights

26

• (1) Subject to the provisions of this article, all private rights and restrictive covenants over land subject to compulsory acquisition under this Order are extinguished or suspended—

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

• (b) on the date of entry on the land by the undertaker under section 11(1)⁷² (powers of entry) of the 1965 Act,

whichever is the earlier.

• (2) Subject to the provisions of this article, all private rights or restrictive covenants over land owned by the undertaker which are—

• (a) within the Order limits except the land shaded yellow on the land plans; and

• (b) required for the purposes of this Order,

cease to have effect in so far as their continuance would be inconsistent with any activity authorised by this Order which interferes with or breaches such rights or such restrictive covenants as from the date on which that activity has begun.

• (3) Subject to the provisions of this article, all private rights or restrictive covenants over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order cease to have effect in so far as their continuance would be inconsistent with the exercise of the right or compliance with the restrictive covenant—

• (a) as from the date of the acquisition of the right or the benefit of the restrictive covenant being imposed, whether compulsorily or by agreement;

• (b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act in pursuance of the right; or

• (c) on the beginning of any activity authorised by the Order which interferes with or breaches those rights,

whichever is the earlier.

• (4) Subject to the provisions of this article, all private rights or restrictive covenants over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable, in so far as their continuance would be inconsistent with the purpose for which temporary possession is taken, for as long as the undertaker remains in lawful possession of the land.

• (5) All restrictive covenants contained in a transfer dated 19 April 1979 and made between (1) the right Honourable John Edward Pelham Earl of Yarborough and (2) Samuel James Parker and Maud Parker relating to land shown as plot 5/4 on sheet 5 of the land plans and described in the book of reference are extinguished on the date on which the authorised project is begun (within the meaning given in section 155 (when development begins) of the 2008 Act.

• (6) Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenant under this article is entitled to compensation in accordance with the terms of section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

• (7) This article does not apply in relation to any right to which section 138⁷³ (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act, or where article 33 (statutory undertakers) applies.

• (8) Paragraphs (1) to (4) have effect subject to—

• (a) any notice given by the undertaker before—

• (i) the completion of the acquisition of the land or rights or the imposition of restrictive covenants over or affecting the land;

• (ii) the undertaker’s appropriation of the land;

• (iii) the undertaker’s entry onto the land; or

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

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

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

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

• (a) is made with a person in or to whom the right 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.

• (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

• (c) the use of any land (including the temporary use of land).

• (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 10⁷⁴ (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 5⁷⁵ (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

• (5) Omit section 5A⁷⁶ (time limit for general vesting declaration).

• (6) In section 5B(1)⁷⁷ (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 6⁷⁸ (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 7⁷⁹ (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 A1⁸⁰ (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 125⁸¹ (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

• (2) In section 4A(1)⁸² (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 118⁸³ (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 11A⁸⁴ (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 2A⁸⁵ (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 11⁸⁶ (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 4⁸⁷ (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 13⁸⁸ 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;

• (c) any land shaded yellow on the land plans; or

• (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

• (c) the surrounding environment,

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

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• (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

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Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981⁸⁹ (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”;

• (c) for “undertaking” substitute “authorised project”; and

• (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 1995⁹⁰) 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);

• (c) article 25 (acquisition of subsoil or airspace only);

• (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);

• (c) article 0 (temporary use of land for constructing the authorised project); and

• (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;

• (c) a water undertaker or sewerage undertaker for the purposes of the Water Act 1989; or

• (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);

• (c) article 22 (compulsory acquisition of land);

• (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

• (c) the provision to be transferred or granted,

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);

• (c) article 0 (temporary use of land for constructing the authorised project); or

• (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.

Provision against danger to navigation

49