40.—(1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction, operation or maintenance of the authorised development—
(a)sections 23 (prohibition of obstructions, etc. in watercourses), 30 (authorisation of drainage works in connection with a ditch) and 32 (variation of awards) of the Land Drainage Act 1991(1);
(b)the provisions of any byelaws made under section 66 (powers to make byelaws) of the Land Drainage Act 1991;
(c)the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 (byelaw making powers of the appropriate agency) to the Water Resources Act 1991(2); and
(d)regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(3) in respect of a flood risk activity only.
(2) The provisions of the Neighbourhood Planning Act 2017(4), insofar as they relate to temporary possession of land under this Order, do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within the maintenance period defined in article 34(12) (temporary use of land for maintaining the authorised development) of this Order, any maintenance of any part of the authorised development.
(3) Section 25 of the Burial Act 1857(5) (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State) does not apply to a removal carried out in accordance with article 24 (removal of human remains) of this Order.
(4) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 of the Community Infrastructure Levy Regulations 2010(6) any building comprised in the authorised development is deemed to be—
(a)a building into which people do not normally go; or
(b)a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.
41.—(1) The following local enactments and local byelaws, and any byelaws or other provisions made under any of those enactments or byelaws, are hereby excluded and do not apply insofar as inconsistent with a provision, of or a power conferred by, this Order—
(a)Boston Port and Harbour Act 1812(7);
(b)Witham Navigation and Drainage Act 1812(8);
(c)River Witham Outfall Improvement Act 1880(9);
(d)Boston Dock Act 1881(10);
(e)Land Drainage (Black Sluice) Provisional Order Confirmation Act 1925(11);
(f)The Boston Barrier Order 2017(12);
(g)Boston Dock Byelaws 1947; and
(h)Black Sluice Internal Drainage Board Complete Land Drainage Byelaws 1988.
(2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and insofar as (in particular)—
(a)it would make it an offence to take action, or not to take action, in pursuance of a power conferred by this Order;
(b)action taken in pursuance of a power conferred by this Order would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or
(c)action taken in pursuance of a power or duty under the provisions would or might interfere with the exercise of any work authorised by this Order.
(3) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker or by virtue of this Order would amount to a contravention of a statutory provision of local application, the undertaker must as soon as reasonably practicable, and at any rate within 14 days of receipt of the notice, respond in writing setting out—
(a)whether the undertaker agrees that the action taken or proposed does or would contravene the provision of local application;
(b)if the undertaker does agree, the grounds (if any) on which the undertaker believes that the provision is excluded by this article; and
(c)the extent of that exclusion.
42.—(1) If planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is—
(a)not itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or
(b)required to complete or enable the use or operation of any part of the development authorised by this Order,
then the construction, maintenance, use or operation of that development under the terms of the planning permission does not constitute a breach of the terms of this Order.
(2) Development consent granted by this Order is to be deemed as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as operational land for the purposes of that Act) of the 1990 Act.
(3) Development consent granted by this Order is to be treated as planning permission in accordance with Part 3 (control over development) of the 1990 Act for the purposes of regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012(13) and the Forestry Act 1967(14).
43.—(1) This article applies to—
(a)any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and
(b)any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,
so far as any such agreement relates to the terms on which any land is the subject of a lease granted by or under that agreement is to be provided for that person’s use.
(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.
(3) No enactment or rule of law to which paragraph (2) applies is to apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—
(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;
(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or
(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.
44.—(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990(15) in relation to a nuisance falling within paragraphs (c), (d), (e), (fb), (g) or (h) of section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2) of that Act if—
(a)the defendant shows that the nuisance—
(i)relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the construction of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974(16); or
(ii)is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
(b)the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.
(2) For the purposes of paragraph (1), compliance with the controls and measures described in the Code of Construction Practice approved under paragraph 11 of Schedule 2 to this Order will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.
(3) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.
45. Schedule 8 (protective provisions) to the Order has effect.
46. The marine licence set out in Schedule 9 (deemed marine licence) is deemed to have been issued under Part 4 of the Marine and Coastal Access Act 2009 for the licensed activities set out in Part 2, and subject to the licence conditions set out in Parts 3 and 4, of that licence.
47.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of all documents and plans referred to in Schedule 10 (documents and plans to be certified) to this Order for certification that they are true copies of those documents.
(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).
(3) A plan or document so certified is to be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
48.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a)by post;
(b)by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c)with the consent of the recipient and subject to paragraphs (5) to (8), by electronic transmission.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(17) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address and otherwise—
(a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body, and,
(b)in any other case, the last known address of that person at that time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having an interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—
(a)addressing it to that person by the description of “owner”, or as the case may be “occupier” of the land (describing it); and
(b)either leaving it in the hands of the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—
(a)the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;
(b)the notice or document is capable of being accessed by the recipient;
(c)the notice or document is legible in all material respects; and
(d)in a form sufficiently permanent to be used for subsequent reference.
(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within seven days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.
(7) Any consent to the use of an electronic transmission by a person may be revoked by that person in accordance with paragraph (8).
(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—
(a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and
(b)such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than seven days after the date on which the notice is given.
(9) This article does not exclude the employment of any method of service not expressly provided for by it.
(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.
49.—(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed in writing between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.
(2) For the avoidance of doubt, any matter for which the consent or approval of the Secretary of State or the MMO is required under any provision of this Order will not be subject to arbitration.
50.—(1) Where an application or request is submitted to the relevant planning authority, a highway authority, a street authority or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any other the provisions of the Order such consent, agreement or approval, if given, must be given in writing, such agreement not to be unreasonably withheld.
(2) Part 2 of Schedule 2 (procedure for discharge of requirements) has effect in relation to all consents, agreements or approvals granted, refused or withheld in relation to the requirements set out in Part 1 of Schedule 2, and any document referred to in any requirement in that Part 1.
(3) The procedure set out in Part 2 of Schedule 2 has effect in relation to any other consent, agreement or approval required under this Order where such consent, agreement or approval is granted subject to any condition to which the undertaker objects or is refused or is withheld.
51. Compensation will not be payable in respect of the same matter both under this Order and under any enactment, any contract or any rule of law.
52.—(1) The undertaker must not begin to exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any Order land unless it has first put in place either—
(a)a guarantee and the amount of that guarantee approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2); or
(b)an alternative form of security and the amount of that security approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2).
(2) The provisions are—
(a)article 25 (compulsory acquisition of land);
(b)article 28 (private rights);
(c)article 33 (temporary use of land for carrying out the authorised development);
(d)article 34 (temporary use of land for maintaining the authorised development); and
(e)article 35 (statutory undertakers).
(3) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2) is to be treated as enforceable against the guarantor or person providing the alternative form of security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.
(4) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.
53.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any lessee or licensee to take, use, enter upon or in any manner interfere with any land or rights of any description (including any portion of the shore or bed of the sea or any river, channel, creek, bay or estuary)—
(a)belonging to His Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;
(b)belonging to His Majesty in right of the Crown and not forming part of The Crown Estate without the consent in writing of the government department having the management of that land; or
(c)belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.
(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown land (as defined in section 227 of the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.
(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions and is deemed to have been given in writing where it is sent electronically.
54. Schedule 11 (ornithology compensation measures) to the Order has effect.
55. Schedule 12 (harbour seal compensation measures) to the Order has effect.
1991 c. 57. Paragraph 5 was amended by section 100(1) and (2) of the Natural Environment and Rural Communities Act 2006 (c. 16), section 84 of, and paragraph 3 of Schedule 11 to, the 2009 Act (c. 23), paragraphs 40 and 49 of Schedule 25 to the Flood and Water Management Act 2010 (c. 29) and S.I. 2013/755. Paragraph 6 was amended by paragraph 26 of Schedule 15 to the Environment Act 1995 (c. 25), section 224 of, and paragraphs 20 and 24 of Schedule 16, and Part 5(B) of Schedule 22, to, the 2009 Act and S.I. 2013/755. Paragraph 6A was inserted by section 103(3) of the Environment Act 1995.
S.I. 2010/948, amended by S.I. 2011/987; there are other amending instruments but none are relevant to this Order.
1990 c. 43. Section 82 was amended by section 103 of the Clean Neighbourhoods and Environment Act 2005 (c. 16); section 79 was amended by sections 101 and 102 of the same Act. There are other amendments not relevant to this Order.