The Hornsea Four Offshore Wind Farm Order 2023

Article 46

SCHEDULE 13 MODIFICATIONS TO AND AMENDMENTS OF THE DOGGER BANK CREYKE BECK OFFSHORE WIND FARM ORDER 2015

Schedule 12 to the Dogger Bank Creyke Beck Offshore Wind Farm Order 2015

1.  After Part 5 of Schedule 12 insert a new Part 6—

“PART 6 PROTECTION OF ORSTED HORNSEA PROJECT FOUR LIMITED

Application

1.   The following provisions of this Part of this Schedule will have effect unless otherwise agreed in writing between the undertaker and Hornsea Four.

Interpretation

2.   In this Part of this Schedule—

“acceptable insurance” means a third party liability insurance effected and maintained by the undertaker to a level of not less than £50,000,000 (fifty million pounds) (or such lower amount as may be agreed by Hornsea Four) per occurrence or series of occurrences arising out of one event. Such insurance shall be maintained for the construction period of the authorised development which constitute specified works and arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the same requirements as an “acceptable credit provider”, such policy shall include (but without limitation)—

(a)

Hornsea Four as a Co-Insured;

(b)

a cross liabilities clause; and

(c)

contractors’ pollution liability for third party property damage and third party bodily damage arising from a pollution/contamination event with cover of £10,000,000.00 (ten million pounds) per event or £20,000,000.00 (twenty million pounds) in aggregate;

“ground mitigation scheme” means a scheme approved by Hornsea Four (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the Hornsea Four authorised development which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, shall require the undertaker to submit for Hornsea Four’s approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme; and

“the Hornsea Four authorised development” means the onshore development authorised by the Hornsea Four Order;

“the Hornsea Four Order” means the Hornsea Four Offshore Wind Farm Order 2023;

“the Hornsea Four Order land” has the same meaning as the term “Order land” in article 2(1) of the Hornsea Four Order;

“Hornsea Four” means Orsted Hornsea Project Four Limited, (Company No. 08584182) whose registered office is at 5 Howick Place, London, England, SW1P 1WG or any person having the benefit of the Hornsea Four Order pursuant to article 5 thereof;

“the Order” means this Order;

“the respective authorised developments” means the developments authorised by the Order and the Hornsea Four Order respectively; and

“specified works” means the carrying out of any of the authorised development over, under or within 15 metres of the Hornsea Four authorised development or in the event that the Hornsea Four authorised development has not been constructed within the Hornsea Four Order land.

Regulation of powers over the Hornsea Four Order land

3.— (1) The undertaker may not exercise the powers under any of the articles of the Order specified in sub-paragraph (2) over or in respect of the Hornsea Four Order land otherwise than with the prior written consent of Hornsea Four.

(2) The articles referred to in sub-paragraph (1) are—

(a) article 13 (street works);

(b) article 14 (temporary stopping up of streets);

(c) article 15 (access to works);

(d) article 17 (discharge of water);

(e) article 19 (authority to survey and investigate land);

(f) article 28 (rights under or over streets);

(g) article 29 (temporary use of land for carrying out authorised project);

(h) article 30 (temporary use of land for maintaining authorised development); and

(i) article 36 (trees subject to tree preservation orders).

(3) In the event that Hornsea Four withholds its consent pursuant to sub-paragraph (1) it will notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.

Co-operation

4.   Wherever in this Part of this Schedule provision is made with respect to the approval or consent of Hornsea Four, that approval or consent shall be in writing (and subject to such reasonable terms and conditions as the undertaker may require), but shall not be unreasonably withheld.

5.   In the event that Hornsea Four does not respond in writing to a request for approval or consent within 28 days of receipt of such a request, Hornsea Four is deemed to have given its consent (without any terms or conditions).

6.   Insofar as the construction of the respective authorised developments is or may be undertaken concurrently, the undertaker shall—

(a) co-operate with Hornsea Four with a view to ensuring—

(i) the co-ordination of construction programming and the carrying out of works; and

(ii) that access for the purposes of constructing the respective authorised developments is maintained for the undertaker and Hornsea Four and their respective contractors; and

(b) use reasonable endeavours to avoid any conflict arising between the carrying out of the respective authorised developments.

7.   Insofar as the construction of the authorised development gives rise to the need to modify any scheme secured by a requirement contained in Part 3, Schedule 1 to the Hornsea Four Order, the undertaker will provide such assistance as is reasonably necessary to support Hornsea Four in pursuing any such modification.

Requirements

8.   Insofar as compliance with paragraph 3(1) of this Part prevents the undertaker from complying with any requirement contained in Part 2 of Schedule 1 to the Order, the undertaker will not be in breach of such requirement for the time period specified in paragraph 3(3).

9.   In the event that paragraph 8 applies, the undertaker will provide the relevant planning authority with a copy of the reasons given by Hornsea Four for refusing consent and the time period pursuant to paragraph 3(3).

10.   It will be a defence for any person charged with an offence pursuant to section 161 of the Planning Act 2008 (Breach of terms of order granting development consent) to prove that they were not able to comply with a requirement contained in Part 2 of Schedule 1 to the Order due to the effect of paragraph 3 of this Part.

Protection of Hornsea Four

11.— (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Hornsea Four a plan and, if reasonably required by Hornsea Four, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to Hornsea Four under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;

(d) the position of all Hornsea Four authorised development;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any of the Hornsea Four authorised development; and

(f) any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until Hornsea Four has given written approval of the plan so submitted.

(4) Any approval of Hornsea Four required under sub-paragraph (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7); and,

(b) must not be unreasonably withheld.

(5) In relation to a work to which sub-paragraphs (1) and/or (2) apply, Hornsea Four may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing the Hornsea Four authorised development against interference or risk of damage or for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any of the Hornsea Four authorised development.

(6) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (5), as amended from time to time by agreement between the undertaker and Hornsea Four and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) and/or (7) by Hornsea Four for the alteration or otherwise for the protection of the Hornsea Four authorised development, or for securing access to it, and Hornsea Four will be entitled to watch and inspect the execution of those works.

(7) Where Hornsea Four requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Hornsea Four’s satisfaction prior to the commencement of any specified works for which protective works are required and Hornsea Four must give notice of its requirement for such protective works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) Nothing in this paragraph shall preclude the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(9) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Hornsea Four notice as soon as is reasonably practicable and a plan of those works and must—

(a) comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (10) at all times.

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that Hornsea Four retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 12.

Expenses

12.   Save where otherwise agreed in writing between Hornsea Four and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to Hornsea Four within 30 days of receipt of an itemised invoice or claim from Hornsea all charges, costs and expenses reasonably incurred by Dogger Bank in, or in connection with this Part of this Schedule including without limitation—

(a) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(b) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.

Indemnity

13.— (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the onshore elements of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out the onshore elements of the authorised development (including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or property of Hornsea Four, or there is any interruption in any service provided, or in the supply of any goods, by Hornsea Four, or Hornsea Four becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from Hornsea Four the cost reasonably and properly incurred by Hornsea Four in making good such damage or restoring the supply; and

(b) indemnify Hornsea Four for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Hornsea Four, by reason or in consequence of any such damage or interruption or Hornsea Four becoming liable to any third party as aforesaid other than arising from any default by Hornsea Four.

(2) The fact that any act or thing may have been done by Hornsea Four on behalf of the undertaker or in accordance with a plan approved by Hornsea Four or in accordance with any requirement of Hornsea Four as a consequence of the onshore elements of the authorised development or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) where the undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan or as otherwise agreed between the undertaker and Hornsea Four.

(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of any damage or interruption to the extent that it is attributable to the neglect or default of Hornsea Four, its officers, servants, contractors or agents.

(4) Hornsea Four must give the undertaker reasonable notice of any such claim or demand and no settlement, admission of liability or compromise or demand must be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

(5) Hornsea Four must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under sub-paragraph (1) applies. If requested to do so by the undertaker, Hornsea Four must provide an explanation of how the claim has been minimised. The undertaker is only liable under sub-paragraph (1) for claim reasonably incurred by Hornsea Four.

(6) The undertaker must not commence construction (and must not permit the commencement of such construction) of any specified works until Hornsea Four is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker or its contractor has procured acceptable insurance (and provided evidence to Hornsea Four that it shall maintain such acceptable insurance for the construction period of the specified works from the proposed date of commencement of construction of the specified works) and Hornsea Four has confirmed the same in writing to the undertaker.

(7) In the event that the undertaker fails to comply with paragraph 13(6) of this Part of this Schedule, nothing in this Part of this Schedule shall prevent Hornsea Four from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Arbitration

14.— (1) Any difference or dispute arising between the undertaker and Hornsea Four under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Hornsea Four, be referred to and settled in arbitration in accordance with the Rules at Schedule 14 of the Hornsea Four Order, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.

(2) Should the Secretary of State fail to appoint an arbitrator under paragraph (1) within 14 days of the application, the referring party may refer to the Centre of Effective Dispute Resolution for appointment of an arbitrator.

(3) Article 44 (arbitration) will not apply to any difference or dispute under any provision of this Part of this Schedule.

Access

15.   If in consequence of any specified works approved in accordance with this Part or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Hornsea Four to maintain or use the apparatus no less effectively than was possible before such obstruction.”.