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

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

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

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

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

• (3) Section 4 (time limit for giving notice to treat) is omitted.

• (4) In section 4A(1) (extension of time limit during challenge)—

• (a) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order)” substitute “section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent)”; and

• (b) for “the three year period mentioned in section 4” substitute “the five year period mentioned in article 23 of the Associated British Ports (Immingham Green Energy Terminal) Order 2025;

• (5) For section 7 of the 1965 Act (measure of compensation) substitute—

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

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

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

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

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

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

• (7) Section 11¹¹⁰ of the 1965 Act (powers of entry) is modified to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right or restrictive covenant, it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant (which is deemed for this purpose to have been created on the date of service of the notice); and sections 11A (powers of entry: further notices of entry)¹¹¹, 11B (counter-notice requiring possession to be taken on specified date)¹¹², 12¹¹³ (penalty for unauthorised entry) and 13¹¹⁴ (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

• (8) Section 20¹¹⁵ of the 1965 Act (protection for interests of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

• (9) Section 22 of the 1965 Act (interests omitted from purchase), as modified by article 30(4) (modification of Part 1 of the 1965 Act), is modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or to enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

• (10) For Schedule 2A of the 1965 Act substitute—

SCHEDULE 2A (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 29 (application of the 1981 Act) of the Associated British Ports (Immingham Green Energy Terminal) Order 2025 in respect of the land to which the notice to treat relates. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The authority must serve notice of its decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period. (8) If the authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant, (b) the use to be made of the right or covenant proposed to be acquired or imposed, and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take. (13) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of six weeks beginning with the day on which the Upper Tribunal make its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

• (11) In this Schedule, references to entering on and taking possession of land do not include doing so under articles 20 (protective works), 0 (temporary use of land for constructing the authorised project) or 32 (temporary use of land for maintaining the authorised development) of this Order.

SCHEDULE 12 — LAND IN WHICH ONLY NEW RIGHTS AND RESTRICTIVE COVENANTS, ETC. MAY BE ACQUIRED

A restrictive covenant over the land for the benefit of the remainder of the Order land—

SCHEDULE 13 — LAND OF WHICH ONLY TEMPORARY POSSESSION MAY BE TAKEN

(1) Land plans sheet	(2) Plot reference number shown on land plans	(3) Purpose for which temporary possession may be taken
3, 4	3/2, 4/26, 4/28, 4/29, 4/30, 4/32	Work No. 9 and the further associated development to which paragraph 11 of Part 1 (authorised development) of Schedule 1 (authorised project) refers and the ancillary works to which Part 2 (ancillary works) of Schedule 1 (authorised project) refers
5, 6	5/45, 6/19	The further associated development to which paragraph 11 of Part 1 (authorised development) of Schedule 1 (authorised project) refers and the ancillary works to which Part 2 (ancillary works) of Schedule 1 (authorised project) refers
7	7/1, 7/2, 7,3, 7/4, 7/5, 7/6, 7/7, 7/8, 7/9, 7/10, 7/11	Work No. 10 and the further associated development to which paragraph 11 of Part 1 (authorised development) of Schedule 1 (authorised project) refers and the ancillary works to which Part 2 (ancillary works) of Schedule 1 (authorised project) refers

SCHEDULE 14 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF THE STATUTORY CONSERVANCY AND NAVIGATION AUTHORITY FOR THE HUMBER

Interpretation

1

In this Part of this Schedule—

• “authorised works” means any work, operation or activity that the Undertaker is authorised by this Order to construct or carry out;

• “environmental document” means— the environment statement prepared for the purposes of the application for this Order together with any supplementary environmental information or other document so prepared by way of clarification or amplification of the environmental statement; and any other document containing environmental information provided by the undertaker to the Statutory Conservancy and Navigation Authority or Trinity House in connection with any direction under article 49 (provision against danger to navigation), article 50 (lights on tidal works during construction) or article 51 (permanent light on tidal works); and

• “the river” means the River Humber.

General

2

• (1) The provisions of this Part of this Schedule, unless otherwise agreed in writing between the undertaker and the Statutory Conservancy and Navigation Authority, have effect until the commencement of the operation of the authorised development, for the protection of the Statutory Conservancy and Navigation Authority and the users of the river.

• (2) For the purposes of this Part of this Schedule, the definition of “tidal work” is taken to include—

• (a) any projection over the river outside the area of jurisdiction by booms, cranes and similar plant or machinery, whether or not situated within the area of jurisdiction; and

• (b) any authorised work which affects the river or any functions of the Statutory Conservancy and Navigation Authority, whether or not that authorised work is within the limits of the Statutory Conservancy and Navigation Authority.

Approval of detailed design of tidal works

3

• (1) Prior to the commencement of the authorised development in the marine environment the undertaker must submit to the Statutory Conservancy and Navigation Authority plans (including method statements) and sections of the tidal works or operation and such further particulars as the Statutory Conservancy and Navigation Authority may, within 28 days from the day on which plans and sections are submitted under this sub-paragraph, reasonably require.

• (2) Any approval of the Statutory Conservancy and Navigation Authority required under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1) and must not be unreasonably withheld but may be given subject to such reasonable requirements as the Statutory Conservancy and Navigation Authority may make for the protection of—

• (a) traffic in, or the flow or regime of, the river;

• (b) the use of its operational land or the river for the purposes of performing its functions; or

• (c) the performance of any of its functions connected with environmental protection.

• (3) Requirements made under sub-paragraph (2) may include conditions as to—

• (a) the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the tidal work; and

• (b) the expiry of the approval if the undertaker does not commence construction of the tidal work approved within a prescribed period.

• (4) Whenever the undertaker provides the Secretary of State with an environmental document it must at the same time send a copy to the Statutory Conservancy and Navigation Authority.

Commencement of tidal works

4

Any operations for the construction of any tidal work approved in accordance with this Order, once commenced, must be carried out by the undertaker without unnecessary delay and to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority so that river traffic, the flow or regime of the river and the exercise of the Statutory Conservancy and Navigation Authority’s functions do not suffer more interference than is reasonably practicable, and an authorised officer of the Statutory Conservancy and Navigation Authority is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.

Discharges, etc.

5

• (1) The undertaker must not without the Consent of the Statutory Conservancy and Navigation Authority—

• (a) deposit in or allow to fall or be washed into the river any gravel, soil or other material; or

• (b) discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise.

• (2) Any consent of the Statutory Conservancy and Navigation Authority under this paragraph must not be unreasonably withheld but may be given subject to such terms and conditions as the Statutory Conservancy and Navigation Authority may reasonably impose.

• (3) Any such approval is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1).

• (4) In its application to the discharge of water into the river, article 18 (discharge of water) has effect subject to the terms of any conditions attached to a consent given under this paragraph.

• (5) The undertaker must not, in exercise of the powers conferred by article 18 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved as a tidal work under this Order or is otherwise approved in writing by the Statutory Conservancy and Navigation Authority.

Obstruction in river

6

If any pile, stump or other obstruction to navigation becomes exposed in the course of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker, as soon as reasonably practicable after the receipt of notice in writing from the Statutory Conservancy and Navigation Authority requiring such action, must remove it from the river or, if it is not reasonably practicable to remove it—

• (a) cut the obstruction off at such level below the bed of the river as the Statutory Conservancy and Navigation Authority may reasonably direct; or

• (b) take such other steps to make the obstruction safe as the Statutory Conservancy and Navigation Authority may reasonably require.

Removal, etc. of the Statutory Conservancy and Navigation Authority’s moorings and buoys

7

If—

• (a) by reason of the construction of any tidal work it is reasonably necessary for the Statutory Conservancy and Navigation Authority to incur reasonable costs in temporarily or permanently altering, removing, resiting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Statutory Conservancy and Navigation Authority, or laying down and removing substituted moorings or buoys, or carrying out dredging operations for any such purpose, not being costs which it would have incurred for any other reason; and

• (b) the Statutory Conservancy and Navigation Authority gives to the undertaker not less than 28 days’ notice of its intention to incur such costs, and takes into account any representations which the undertaker may make in response to the notice within 14 days of the receipt of the notice,

the undertaker must pay the costs reasonably so incurred by the Statutory Conservancy and Navigation Authority.

Navigational lights, buoys, etc.

8

In addition to any requirement set out in articles 50 (lights on tidal works during construction) and 51 (permanent light on tidal works) the undertaker, at or near every tidal work, and any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level forming part of the River Humber), must exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Statutory Conservancy and Navigation Authority may from time to time reasonably require.

Removal of temporary works

9

On completion of the construction of any part of a permanent authorised work, the undertaker must as soon as practicable remove—

• (a) any temporary tidal work carried out only for the purposes of that part of the permanent work; and

• (b) any materials, plant and equipment used for such construction,

and must make good the site to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority.

Protective action

10

• (1) If any tidal work—

• (a) is constructed otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph (3) (approval of detailed design of tidal works) or

• (b) during construction gives rise to sedimentation, scouring, currents or wave action detrimental to traffic in, or the flow or regime of, the river,

then the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.

• (2) The requirements that may be specified in a notice given under sub-paragraph (1) are—

• (a) in the case of a tidal work to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—

• (i) this Part of this Schedule; or

• (ii) the condition that has been breached; or

• (b) in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river.

• (3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so, the Statutory Conservancy and Navigation Authority may in writing require the undertaker to—

• (a) remove, alter or pull down the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to its former condition; or

• (b) take such other action as the Statutory Conservancy and Navigation Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

• (4) If a tidal work gives rise to environmental impacts over and above those anticipated by any environmental document, the undertaker, in compliance with its duties under any enactment and, in particular, under section 48A of the Harbours Act 1964¹¹⁶, must take such action as is necessary to prevent or mitigate those environmental impacts and in doing so must consult and seek to agree the necessary measures with the Statutory Conservancy and Navigation Authority.

• (5) If the Statutory Conservancy and Navigation Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by any environmental document, the Statutory Conservancy and Navigation Authority must notify the undertaker of that environmental impact, the reasons why the Statutory Conservancy and Navigation Authority believes that the environmental impact is being caused by the tidal work and of measures that the Statutory Conservancy and Navigation Authority reasonably believes are necessary to counter or mitigate that environmental impact.

• (6) The undertaker must implement the measures that the Statutory Conservancy and Navigation Authority has notified to the undertaker or must implement such other measures as the undertaker believes are necessary to counter the environmental impact identified, giving reasons to the Statutory Conservancy and Navigation Authority as to why it has implemented such other measures.

Abandoned or decayed works

11

• (1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level) is abandoned or falls into decay, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.

• (2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—

• (a) to repair and restore the work or part of it; or

• (b) if the undertaker so elects, to remove the tidal work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.

• (3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Statutory Conservancy and Navigation Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.

Facilities for navigation

12

• (1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river without the agreement of the Statutory Conservancy and Navigation Authority and must ensure that access to such aids remains available during and following construction of any tidal works.

• (2) The undertaker must provide at any tidal works, or must afford reasonable facilities at such works (including an electricity supply) for the Statutory Conservancy and Navigation Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation of users of the river in general as the Statutory Conservancy and Navigation Authority may deem necessary by reason of the construction of any tidal works, and must ensure that access remains available to apparatus during and following construction of such works.

• (3) The undertaker must comply with the directions of the harbour master from time to time with regard to the lighting on the tidal works or within the harbour, or the screening of such lighting, so as to ensure safe navigation on the river.

Sedimentation, etc. and remedial action

13

• (1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which—

• (a) is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and

• (b) the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the Statutory Conservancy and Navigation Authority be removed or made good.

• (2) The undertaker must either—

• (a) pay to the Statutory Conservancy and Navigation Authority any additional expense to which the Statutory Conservancy and Navigation Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or

• (b) carry out the necessary dredging at its own expense and subject to the prior approval of the Statutory Conservancy and Navigation Authority, such prior approval not to be unreasonably withheld or delayed;

and the reasonable expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Statutory Conservancy and Navigation Authority in carrying out surveys or studies in connection with the implementation of this paragraph.

Indemnity

14

• (1) The undertaker is responsible for and must make good to the Statutory Conservancy and Navigation Authority all reasonable financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Statutory Conservancy and Navigation Authority by reason of—

• (a) the construction or operation of the authorised works or the failure of the authorised works;

• (b) anything done in relation to a mooring or buoy under paragraph 8 (navigational lights, buoys, etc.); or

• (c) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works,

and the undertaker must indemnify the Statutory Conservancy and Navigation Authority from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.

• (2) The fact that any act or thing may have been done—

• (a) by the Statutory Conservancy and Navigation Authority on behalf of the undertaker; or

• (b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Statutory Conservancy and Navigation Authority, or in a manner approved by the Statutory Conservancy and Navigation Authority, or under its supervision or the supervision of its duly authorised representative,

does not (if it was done or required without negligence on the part of the Statutory Conservancy and Navigation Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.

• (3) The Statutory Conservancy and Navigation Authority must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand is to be made without the prior consent of the undertaker.

Statutory functions

15

• (1) Subject to the modification of any enactments in this Order and this paragraph, any function of the undertaker or any officer of the undertaker, whether conferred by or under this Order or any other enactment, is subject to—

• (a) any enactment relating to the Statutory Conservancy and Navigation Authority;

• (b) any byelaw, direction or other requirement made by the Statutory Conservancy and Navigation Authority or the harbour master under any enactment;

• (c) any other exercise by the Statutory Conservancy and Navigation Authority or the harbour master of any function conferred by or under any enactment.

• (2) The undertaker must not take any action in the river outside the area of jurisdiction under sections 57 and 65 of the 1847 Act as incorporated by article 4 (incorporation of the Act of 1847) except with the consent of the harbour master, which must not be unreasonably withheld.

• (3) The dock master must not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 4 (incorporation of the Act of 1847), if to do so would conflict with a special direction given to the same vessel by the harbour master.

• (4) The Statutory Conservancy and Navigation Authority must consult the undertaker before making any byelaw which directly applies to or which could directly affect the construction, operation or maintenance of the authorised development.

• (5) The Statutory Conservancy and Navigation Authority or the harbour master (as appropriate) must consult the undertaker before giving any general direction which directly affects the construction, operation or maintenance of the authorised development.

Operating procedures

16

Before commencing marine commercial operations, the undertaker must submit to the harbour master for approval a written statement of proposed safe operating procedures for access to and egress from the authorised development and must operate the authorised development only in accordance with such procedure as is approved, including any approved alteration made from time to time.

Removal of wrecks and obstructions, etc.

17

• (1) Before exercising any power under section 252 of the Merchant Shipping Act 1995 or under section 56 of the 1847 Act, the dock master must notify the harbour master.

• (2) The dock master must comply with any reasonable instructions that the harbour master may give in relation to the exercise of the powers referred to in sub-paragraph .

Oil spillage plan

18

The undertaker must consult the harbour master before submitting any oil pollution emergency plan to the Maritime and Coastguard Agency and must ensure that any such plan is compatible with the Statutory Conservancy and Navigation Authority’s existing plan known as “Humber Clean” or such other plan as supersedes “Humber Clean”.

PART 2 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

Application

19

The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

Definitions

20

In this Part of this Schedule—

• “Agency” means the Environment Agency;

• “construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” are to be construed accordingly;

• “drainage work” means— any main river; any land which provides or is expected to provide flood storage capacity for any main river; any bank, wall, embankment or other structure or any appliance (in each aforementioned case) constructed or used for land drainage, flood defence or tidal monitoring in connection with a main river;

• “emergency” means an occurrence which presents a risk of— serious flooding serious detrimental impact on drainage serious harm to the environment

• “fishery” means any waters containing fish and fish in, or mitigating to or from, such waters and the spawn, spawning ground, habitat or food or such fish;

• “Habrough Marsh Drain outfall channel” means the naturally scoured channel over the intertidal area fronting the outfall structure marked ‘Structure A’, being the Habrough Marsh Drain, on the plan of Habrough Marsh Drain and Stallingborough North Beck which provides passive gravity drainage during favourable tidal conditions;

• “licences” means— the licence with reference 35/Licence/10300 granted by the British Transport Docks Board to Anglian Water Authority on 18 January 1980; the licence with reference 35/Licence/10406 granted by the Company to the Agency on 26 November 1999; and the licence with reference 35/Licence/10408 granted by the Company to the Agency on 26 November 1999;

• “main river” has the same meaning given in section 113 of the Water Resources Act 1991;

• “non-tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2016;

• “the plan of Habrough Marsh Drain and Stallingborough North Beck” means the plan of that name identified in the table at Schedule 15 (documents and plans to be certified) and which is certified by the Secretary of State as the plan of Habrough Marsh Drain and Stallingborough North Beck for the purposes of the Order;

• “plans” includes plans, sections, elevations, drawings, specifications, programmes, proposals, calculations, method statements and descriptions;

• “protected site” means a site of special scientific interest, a special area of conservation, a special protection area, a Ramsar wetland or a marine conservation zone or legal equivalent;

• “remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river;

• “sea defence” means any bank, wall, embankment (any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the Agency’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949 or by any local authority or any navigation, harbour or conservancy authority;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within— 16 metres of the base of a sea defence which is likely to— endanger the stability of, cause damage or reduce the effectiveness of that sea defence; or interfere with the Agency’s access to or along that sea defence; 8 metres of the base of a remote defence which is likely to— endanger the stability of, cause damage or reduce the effectiveness of that remote defence; or interfere with the Agency’s access to or along that remote defence; 16 metres of a drainage work involving a tidal main river; 8 metres of a drainage work involving a non-tidal main river; any distance of a drainage work and is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; cause obstruction to the free passage of fish or damage to the fishery; affect the conservation, distribution or use of water resources; or affect the conservation value of the main river and habitats in its immediate vicinity;

Crossing flood management infrastructure

21

The Agency agrees that development comprised in Work No. 1 may go up and over the sea defences (and may be part of the same structure as any sea defences) within the area shown on the works plans for Work No. 1 subject always to the terms of this Part of this Schedule.

Submission and approval of plans

22

• (1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of receipt of the plans reasonably request.

• (2) Any submission made by the undertaker under sub-paragraph (1) and any approval given bythe Agency under this paragraph, may be in respect of all or part of a specified work.

• (3) Any specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency under this paragraph or determined under paragraph 32 (disputes).

• (4) Any approval of the Agency required under this paragraph—

• (a) must not be unreasonably withheld or delayed;

• (b) subject to sub-paragraph (6), is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been reasonably requested by the Agency for approval; and

• (c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources or for the prevention of flooding or pollution or for nature conservation in the discharge of its environmental duties.

• (5) The Agency must use its reasonable endeavours to approve or refuse approval pursuant to the submission of any plans under this paragraph before the expiration of the period mentioned in sub-paragraph (4)(b).

• (6) Where the plans or any further particulars submitted to the Agency for approval under sub-paragraph (1) relate to activities which are situated within or might otherwise affect a protected site the period of time specified in sub-paragraph (4)(b) is extended to 3 months to allow the Agency to consult Natural England before responding to the request for approval and the Agency’s response to that request for approval must take into account any comments received from Natural England.

• (7) In the case of a refusal, the Agency must provide a written statement of the reasons for the grounds of refusal.

• (8) In the event that the Agency gives an approval under this paragraph in respect of a specified work, or part of it, that specified work, or the relevant part of it, may be constructed, maintained, used, operated or decommissioned by the undertaker in accordance with the plans and particulars approved by the Agency or determined under paragraph 32 (disputes) notwithstanding anything in the licences.

Construction of protective works

23

Without limiting paragraph 22, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

• (a) to safeguard any drainage work against damage; or

• (b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

(in each case) by reason of any specified work.

Timing of works and service of notices

24

• (1) Subject to sub-paragraphs (2) and (3), once the construction of any specified work, and any protective work required by the Agency under paragraph 23 (construction of protective works), has begun it must be constructed—

• (a) without unreasonable delay in accordance with the plans and particulars approved under this Part of this Schedule by the Agency or determined under paragraph 32 (disputes); and

• (b) to the reasonable satisfaction of the Agency,

and the Agency is entitled by its officer to watch and inspect the construction of such works.

• (2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to begin construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it has been completed.

• (3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work to which the protective works relate.

Works not in accordance with this Part of this Schedule

25

• (1) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with this Part of this Schedule and where the Agency acting reasonably considers it necessary to avoid any of the risks specified in sub-paragraph (2) arising from the absence of such consent or from such non-compliance, the Agency may serve written notice requiring the undertaker to immediately cease all or part of the specified works to which the consent or conditions relate, as the same may be specified within the notice served, and the undertaker must immediately cease constructing such specified works or part of them until such time as it has obtained the consent or complied with the condition specified within the notice served unless the undertaker concludes, acting reasonably, that immediate cessation of the specified works or part of them would cause greater environmental damage than proceeding with the work in question and in those circumstances the undertaker must immediately serve a counter-notice on the Agency specifying its reasoning for reaching that conclusion.

• (2) The risks specified in sub-paragraph (1) are—

• (a) risk of flooding;

• (b) risk of harm to the environment; and

• (c) risk of detrimental impact on drainage.

• (3) If any part of a specified work, or any protective work required by the Agency pursuant to this Part of this Schedule, is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker, at the undertaker’s own expense, to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

• (4) Subject to sub-paragraph (5) if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (3) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.

• (5) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in the case of an emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined in accordance with paragraph 32 (disputes).

Maintenance of works during construction

26

• (1) Notwithstanding anything in the licences, the undertaker must during the construction of any specified works maintain in good repair and condition and free from obstruction any drainage work to which all of the following paragraphs apply, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence—

• (a) The drainage work is within the Order limits;

• (b) The drainage work is one to which the specified works in question relate or which they affect (in each case) in the manner set out in the meaning given to “specified works” in paragraph 19; and

• (c) The drainage work in question falls within a temporary construction compound under the control of the undertaker.

• (2) If a drainage work to which sub-paragraph (1) refers is not maintained to the reasonable satisfaction of the Agency on the terms of that sub-paragraph, the Agency may by notice in writing require the undertaker to repair and restore it, or any part of it, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove the drainage work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

• (3) Subject to sub-paragraph (4) if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of a drainage work to which sub-paragraph (1) refers is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (3) the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 32 (disputes).

• (5) This paragraph does not apply to any obstruction of a drainage work expressly authorised in plans or particulars approved in writing by the Agency or determined under paragraph 32 (disputes) and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

Remediating impaired drainage work

27

If by reason of the construction of any specified work or of the failure of any such work, the efficiency for flood defence purposes of any drainage work within the Order limits is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure incurred by the Agency in so doing from the undertaker.

Agency access

28

• (1) If by reason of construction of any specified work or the failure of such work, the Agency’s access within the Order limits to any flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must notify the Agency immediately and provide suitable alternative means of access within the Order limits that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction occurred and such alternative access must be made available as soon as reasonably practicable after the undertaker becoming aware of such obstruction, except in the case of an emergency in which case the undertaker must provide such alternative means of access on demand.

• (2) Sub-paragraph (1) does not apply to the extent that an alternative access arrangement has been agreed in writing between the undertaker and the Agency or determined in accordance with paragraph 32 (disputes).

Free passage of fish

29

• (1) The undertaker must during the construction of any specified work take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery by reason of the construction of the specified work in question.

• (2) If by reason of—

• (a) the construction of any specified work; or

• (b) the failure of such work;

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.

• (3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and any expenditure properly and reasonably incurred by the Agency in so doing is recoverable from the undertaker.

• (4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure properly and reasonably incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced taking, the steps specified in the notice.

Outfall channels

30

• (1) The undertaker must, unless otherwise agreed in writing by the Agency, for a period of 10 years beginning with the date on which any part of the authorised project within the UK marine area is begun (within the meaning given in section 155 (when development begins) of the 2008 Act monitor the paths of each of the Habrough Marsh Drain outfall channel and the Stallingborough North Beck outfall channel and report to the Agency annually whether any substantial changes to the flow or path of either such outfall channel have occurred as a result of the authorised project, such monitoring to be based on appropriate methods.

• (2) In the event that, during the period of 10 years to which subparagraph (1) refers, as a direct result of the construction or operation of the authorised project either of the Habrough Marsh Drain outfall channel or the Stallingborough North Beck outfall channel have been obstructed or impaired and either—

• (a) the obstruction or impairment has the potential to impede or affect the flow of water from the outfall channel into the River Humber; or

• (b) the efficiency of any ordinary watercourse for flood defence or land drainage purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action,

the undertaker must as soon as reasonably practicable (and in any event within 28 days, unless otherwise agreed with the Agency in writing) set out in writing for approval by the Agency the steps it proposes for making good such obstruction or impairment to the outfall channel and the timescales for it doing so.

• (3) The undertaker must carry out the steps approved by the Agency within the timescales it has approved (in each case) pursuant to sub-paragraph (2) to the reasonable satisfaction of the Agency and, if the undertaker fails to do so, the Agency may carry them out and recover from the undertaker the expense reasonably incurred by it in so doing.

Costs and indemnity

31

• (1) The undertaker must repay the Agency all proper and reasonable costs, charges and expenses which the Agency reasonably incurs—

• (a) in the examination or approval of plans under this Part of this Schedule;

• (b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and

• (c) in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works or any protective works,

and, for the avoidance of doubt, sub-paragraph (2) does not apply to the costs, charges and expenses to which this sub-paragraph refers.

• (2) Subject to sub-paragraphs (3) to (7), the undertaker is responsible for and indemnifies the Agency against all costs and losses, liabilities, claims and demands not otherwise provided for in this Schedule which may be reasonably incurred or suffered by the Agency by reason of, or arising out of—

• (a) the construction, operation or maintenance of any specified works comprised within the authorised development or the failure of any such works comprised within them; or

• (b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised development or dealing with any failure of the authorised development.

• (3) For the avoidance of doubt, but subject to sub-paragraphs (4) to (7), in sub-paragraph (2)—

• (a) “costs” includes—

• (i) expenses and charges;

• (ii) staff costs and overheads;

• (iii) legal costs;

• (b) “losses” includes physical damage.

• (c) “claims” and “demands” include as applicable—

• (i) costs (within the meaning of paragraph 31(3)(a) incurred in connection with any claim or demand;

• (ii) any interest element of sums claimed or demanded;

• (d) “liabilities” includes—

• (i) contractual liabilities;

• (ii) tortious liabilities (including liabilities for negligence or nuisance);

• (iii) liabilities to pay statutory compensation or for breach of statutory duty; and

• (iv) liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).

• (4) The Agency must give to the undertaker reasonable notice of any such costs or losses, liabilities, claims or demands and must not settle or compromise any of them without the agreement of the undertaker and that agreement must not be unreasonably withheld or delayed.

• (5) The Agency must at all times take all reasonable steps to prevent and mitigate any such claims, demands, proceedings, liabilities, costs, damages, expenses or losses.

• (6) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under the provisions of this Part of this Schedule.

• (7) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any costs or losses, liabilities, claims or demands to the extent that they are attributable to the neglect, default or wilful misconduct of the Agency, its officers, servants, contractors or agents.

Disputes

32

Any dispute arising between the undertaker and the Agency under this Part of this Schedule must, if the parties agree, be determined by arbitration under article 61 (arbitration), but failing agreement be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Transport or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other.

PART 3 — FOR THE PROTECTION OF NORTHERN POWERGRID

Application

33

For the protection of Northern Powergrid, unless otherwise agreed in writing between the undertaker and Northern Powergrid, the following provisions have effect for the duration of the construction of the authorised works, including—

• (a) where a diversion or replacement of Northern Powergrid’s apparatus directly related to the authorised project is required during the construction phase of this Order and is undertaken pursuant to this Order (or any related correction or non-material amendment order); and

• (b) where decommissioning works of Northern Powergrid’s apparatus directly related to the authorised project are required and are undertaken pursuant to this Order (or any related correction or non-material amendment order),

the following provisions have effect for as long as it takes for the diversion, replacement or decommissioning to be completed.

Interpretation

34

In this Part of this Schedule—

• “alternative apparatus” means alternative apparatus adequate to enable Northern Powergrid to fulfil its statutory functions in a manner not less efficient than previously;

• “apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by Northern Powergrid and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “authorised works” means so much of the works authorised by this Order which affect existing Northern Powergrid’s apparatus within the Order limits;

• “functions” includes powers and duties;

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

• “Northern Powergrid” means Northern Powergrid (Yorkshire) PLC (Company Number 04112320) whose registered address is Lloyds Court, 78 Grey Street, Newcastle upon Tyne NE1 6AF; and

• “plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed and must include measures proposed by the undertaker to ensure the grant of sufficient land or rights in land necessary to mitigate the impacts of the works on Northern Powergrid’s undertaking.

Acquisition of land

35

Regardless of any provision in this Order or anything shown on the land plans the undertaker must not acquire any apparatus or override any easement or other interest of Northern Powergrid otherwise than by agreement with Northern Powergrid, such agreement not to be unreasonably withheld or delayed.

Removal of apparatus

36

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that Northern Powergrid’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Northern Powergrid to maintain that apparatus in that land and gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided pursuant to a completed easement which must include rights to retain and subsequently maintain the apparatus being replaced or diverted and any access rights to it for the lifetime of that alternative apparatus all to the reasonable satisfaction of Northern Powergrid in accordance with sub-paragraphs (2) to (5).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Northern Powergrid 42 days’ advance written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Northern Powergrid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Northern Powergrid the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed Northern Powergrid must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible and at the cost of the undertaker (subject to prior approval by the undertaker of its estimate of costs of doing so) use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed. For the avoidance of doubt this sub-paragraph only applies in relation to the voluntary acquisition of the other land or rights and does not include or require the use of Northern Powergrid’s compulsory purchase powers.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Northern Powergrid and the undertaker or in default of agreement settled by arbitration in accordance with article 61 (arbitration).

• (5) Northern Powergrid must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 61, and after the grant to Northern Powergrid of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

Facilities and rights for alternative apparatus

37

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Northern Powergrid facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and Northern Powergrid or in default of agreement settled by arbitration in accordance with article 61 (arbitration).