The North London Heat and Power Generating Station Order 2017

Citation and commencement

1.  This Order may be cited as the North London Heat and Power Generating Station Order 2017 and comes into force on 18th March 2017.

Interpretation

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(1);

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1980 Act” means the Highways Act 1980(3);

“the 1990 Act” means the Town and Country Planning Act 1990(4);

“the 1991 Act” means the New Roads and Street Works Act 1991(5);

“the 2008 Act” means the Planning Act 2008;

“Advent Way” means Advent Way, Edmonton, London N18 3AB;

“apparatus” includes pipes, conduits, wires, sewers, drains, tunnels, cables and associated above and below ground structures and any structure for the lodging of apparatus in or for gaining access to apparatus within the Order limits;

“Ardra Road” means Ardra Road, Edmonton, London N9 0BD;

“authorised development” means the development described in Schedule 1 (authorised development) and any other development authorised by this Order which is development within the meaning of section 32 of the 2008 Act;

“book of reference” means the document certified by the Secretary of State as the book of reference for the purposes of this Order under article 33 (certification of documents and plans);

“building” includes any structure or erection or any part of a building, structure or erection;

“carriageway” has the same meaning as in section 329 of the 1980 Act;

“cctv” means closed-circuit television cameras and equipment, mounting poles and associated cables;

“code of construction practice” means the document certified by the Secretary of State as the code of construction practice for the purposes of this Order under article 33 (certification of documents and plans);

“commence” means begin to carry out any material operation (as defined in section 155 of the 2008 Act) forming part of the authorised development other than operations consisting of enabling works and the temporary display of site notices or advertisements for the purposes of the authorised development, to the extent that they do not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement and “commencement” is to be construed accordingly;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

“DCO Schedules 6-8 explanatory diagrams” means the explanatory diagrams relating to Schedule 6 (public rights of way to be temporarily suspended), Schedule 7 (public rights of way to be extinguished) and Schedule 8 (streets to be temporarily stopped up) certified by the Secretary of State for the purposes of this Order under article 33 (certification of documents and plans);

“design code principles” means the document certified by the Secretary of State as the design code principles for the purposes of this Order under article 33 (certification of documents and plans);

“discharging authority” means the relevant authority, body or person responsible under the provisions of this Order for approving, consenting or discharging any matter;

“Edmonton EcoPark” means the land at Edmonton EcoPark, Advent Way, London N18 3AG, the location of which is shown on drawing number A_0003 Rev 00 of the site location plans;

“electricity and heat generating station” means Works No. 1a;

“enabling works” includes surveying, land clearance, geological testing and sampling, environmental and hazardous substance testing and sampling (including the making of trial boreholes, window sampling and test pits in connection with such testing and sampling), soil tests, pegging out, tree protection, ecological survey and mitigation works, archaeological investigation, removal of minor and re-locatable buildings and structures (other than the works described in Works No. 7), creation of enabling works accesses (other than the creation of the new accesses to the north and east of the Edmonton EcoPark and the widening of the existing access to the south of the Edmonton EcoPark), and for works falling within this definition, the erection of fencing, hoarding or any other means of temporary enclosure, temporary facilities including re-locatable buildings, connections to utilities, and in all cases which do not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement;

“energy from waste facility” means all existing buildings, structures and plant comprising the existing generating station at the Edmonton EcoPark and includes the waste reception hall, bunkers, cranes, grate fired boilers, ash handling system, flue gas cleaning system, waste water treatment plant, chimney stack and flues, turbine hall and electrical system and water cooled condensers;

“environmental commitments and mitigation schedule” means the document certified by the Secretary of State as the environmental commitments and mitigation schedule for the purposes of this Order under article 33 (certification of documents and plans);

“environmental statement” means the document certified by the Secretary of State as the environmental statement for the purposes of this Order under article 33 (certification of documents and plans);

“full operation” means the period of the authorised development’s operation starting from the end of the transitional period;

“highway” and “highway authority” have the same meaning as in the 1980 Act;

“land clearance” means works to clear land of surface vegetation and to remove detritus;

“land plans” means the plans certified by the Secretary of State as the land plans for the purposes of this Order under article 33 (certification of documents and plans);

“Lee Park Way” means Lee Park Way, Edmonton, London N18 3AB;

“maintain” includes to keep up, preserve, conserve, inspect, repair, landscape, plant and re-plant, adjust, alter, remove, clear, refurbish, reconstruct, replace and improve the authorised development, but not so as to vary from the description of the authorised development in Schedule 1 and provided it does not give rise to any materially new or materially different environmental effects to those identified in the environmental statement, and “maintenance” is to be construed accordingly;

“Meridian Way” means Meridian Way, Edmonton, London N9 0AR;

“National Grid” means National Grid Electricity Transmission Plc and National Grid Gas Distribution Limited, and their successors in title, assigns and any other person exercising their powers;

“operational site” means the area shown hatched green on drawing number A_0004 Rev 00 of the site location plans;

“Order land” means the land shown on the land plans which is within the Order limits and described in the book of reference;

“Order limits” means the limits shown on the works plans within which the authorised development may be carried out;

“owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(6);

“relevant planning authority” means the London Borough of Enfield;

“Requirements” means the requirements set out in Schedule 2 (requirements); and a reference to a numbered Requirement is a reference to the requirement imposed by the corresponding numbered paragraph of that Schedule;

“stage” means a stage of construction of the authorised development as approved under Requirement 3 and excludes enabling works;

“statutory undertaker” means any person falling within section 127(8) of the 2008 Act;

“street” means a street within the meaning of section 48 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

“temporary laydown area” means the land within plot numbers 16, 18, 19, 20 and 21, as shown on the land plans;

“transitional period” is the period during which the energy from waste facility and the electricity and heat generating station are operating at the same time;

“undertaker” means North London Waste Authority(7) or a successor body, or such other person who has the benefit of this Order in accordance with article 8 (consent to transfer benefit of Order);

“watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

“works plans” means the plans certified by the Secretary of State as the works plans for the purposes of this Order under article 33 (certification of documents and plans).

(2) References in this Order to rights over land include references to rights to do or to place and maintain anything in, on or under land or in the airspace above its surface.

(3) All distances, directions and lengths referred to in this Order are approximate.

(4) A reference in this Order to “Works” identified by a number is a reference to the Works of the number described in Schedule 1 (authorised development) and shown on the works plans.

Development consent etc. granted by Order

3.  Subject to the provisions of this Order, the undertaker is granted development consent for the authorised development described in Schedule 1 (authorised development) to be constructed, operated and maintained within the Order limits.

Limits of deviation

4.—(1) The authorised development must be constructed, operated and maintained in the lines or situations shown on the works plans.

(2) Subject to Schedule 2 (requirements), in constructing, operating and maintaining the authorised development, the undertaker may—

(a) deviate laterally from the lines or situations shown on the works plans to the extent of the limits of deviation shown on the works plans; and

(b) deviate vertically from the levels shown on the works plans—

(i) to any extent upwards within the limits of deviation shown on the works plans; and

(ii) to any extent downwards as may be necessary, convenient or expedient.

Maintenance of authorised development

5.  The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.

Operation of authorised development

6.—(1) The undertaker is authorised to operate the authorised development.

(2) Other than as set out in this Order, this article does not relieve the undertaker of any requirement to obtain any permit or licence or any other obligation under any other legislation that may be required to authorise the operation of any part of the authorised development.

Benefit of Order

7.  Subject to article 8 (consent to transfer benefit of Order), this Order is for the benefit of the undertaker.

Consent to transfer benefit of Order

8.—(1) The undertaker may, with the consent of the Secretary of State—

(a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee; or

(b) grant to another person (“the lessee”) for a period agreed between the undertaker and the lessee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed.

(2) Where a transfer or grant has been made in accordance with paragraph (1), references in this Order to the undertaker, except in paragraph (3), include references to the transferee or the lessee.

(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

(4) The consent of the Secretary of State is not required for a transfer or grant under paragraph (1) if the transferee or lessee is London Waste Limited provided it is wholly owned by North London Waste Authority.

Defence to proceedings in respect of statutory nuisance

9.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(8) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out 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(9);

(b) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided;

(c) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development which is being used in accordance with a scheme of monitoring and attenuation of noise agreed with the relevant planning authority as described in Requirement 17 (control of noise during operational stage) or in accordance with noise levels set out in an environmental permit relating to the operation of the authorised development; or

(d) is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9) (consent for work on construction site to include a 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.

Street works

10.—(1) The undertaker may, for the purposes of constructing and maintaining the authorised development, enter on the parts of any of the streets specified in Schedule 4 (streets subject to street works) as are within the Order limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street;

(c) place apparatus in the street;

(d) maintain apparatus in the street or change its position; and

(e) execute any works required for or incidental to any works referred to in sub-paragraphs (a) to (d).

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1).

(4) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Alteration of street layout

11.  The undertaker may, for the purposes of constructing the authorised development, alter the layout of each of the streets specified in column (2) of Schedule 5 (streets subject to alteration of layout), and carry out works ancillary to such alteration, in the way specified in relation to that street in column (3) of that Schedule.

Public rights of way

12.—(1) Subject to paragraph (2), the undertaker may for the purposes of constructing and maintaining the authorised development, temporarily suspend the sections of the public rights of way shown on drawings C_0012 Rev 01, C_0013 Rev 00 and C_0014 Rev 01 of the works plans and specified in columns (2) and (3) of Schedule 6 (public rights of way to be temporarily suspended) to the extent specified in column (3) of that Schedule for the duration of the construction of the authorised development.

(2) The public rights of way specified in columns (2) and (3) of Schedule 6 (public rights of way to be temporarily suspended) must not be suspended under this article unless the alternative rights of way specified in column (4) of Schedule 6 (public rights of way to be temporarily suspended) are first provided by the undertaker.

(3) The alternative rights of way referred to in paragraph (2) must be provided for the duration of the construction of the authorised development.

(4) Subject to paragraph (5), with effect from the commencement of the authorised development, the section of public right of way along Lee Park Way as referred to in column (2) of Schedule 7 (public rights of way to be extinguished) is extinguished to the extent specified in column (3) of that Schedule.

(5) The public right of way specified in paragraph (4) must not be extinguished under this article unless the alternative rights of way shown in column (4) of Schedule 7 (public rights of way to be extinguished) are first provided, to the reasonable satisfaction of the relevant planning authority.

(6) Subject to paragraph (7), the undertaker may, at any time during the construction and maintenance of the authorised development, temporarily suspend any public right of way over the proposed footpath labelled RW08 on drawing C_0014 Rev 00 of the works plans for a reasonable period of time if necessary in connection with works authorised by the National Grid (North London Reinforcement Project) Order 2014(10).

(7) The public right of way specified in paragraph (6) must not be suspended under this article unless the physical extent and duration of the temporary suspension and the provision of an alternative right of way has been agreed between the undertaker and the undertaker of the National Grid (North London Reinforcement Project) Order 2014, and approved by the relevant planning authority, which may attach reasonable conditions to any approval (such approval to be obtained in accordance with the provisions of Schedule 3 (procedure for approvals, consents and appeals)).

Temporary stopping up of streets

13.—(1) The undertaker, for the purposes of constructing and maintaining the authorised development, may temporarily stop up, alter or divert any street (or part of it) within the Order limits and may for any reasonable time—

(a) divert the traffic from the street (or the relevant part of it); and

(b) subject to paragraph (2), prevent all persons from passing along the street (or the relevant part of it).

(2) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration or diversion of a street (or relevant part of it) if there would otherwise be no such access.

(3) Without limiting paragraph (1), the undertaker may temporarily stop up, alter or divert the streets specified in Schedule 8 (streets to be temporarily stopped up) to the extent specified in that Schedule.

(4) The undertaker must not temporarily stop up, alter or divert—

(a) any street specified in Schedule 8 (streets to be temporarily stopped up) without first consulting the street authority; or

(b) any other street without the consent of the street authority, which may attach reasonable conditions to any consent (such consent to be obtained in accordance with the provisions of Schedule 3 (procedure for approvals, consents and appeals)).

(5) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) If the relevant street authority fails to notify the undertaker of its decision within 56 days beginning with the receipt of an application for consent under paragraph (4) that street authority is deemed to have granted consent.

Access to works

14.  For the purposes of constructing the authorised development, the undertaker may—

(a) form and lay out means of access, or improve existing means of access, in the locations specified in Schedule 9 (access to works); and

(b) with the approval of the relevant planning authority after consultation with the highway authority, form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires.

Agreements with street authorities

15.—(1) A street authority and the undertaker may enter into agreements with respect to—

(a) the construction or demolition of any structure carrying a street over a body of water;

(b) the maintenance of the structure of any bridge carrying a street over a body of water;

(c) the construction or alteration of any new or existing access to the authorised development;

(d) any temporary stopping up, alteration or diversion of a street authorised by this Order; or

(e) the carrying out in the street of any of the works referred to in article 10 (street works) or any of works referred to in article 11 (alteration of street layout).

(2) Without limiting paragraph (1), such an agreement may—

(a) make provision for the street authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and street authority specifying a reasonable time for the completion of the works; and

(c) contain such terms as to payment and otherwise as the parties consider appropriate.

Discharge of water

16.—(1) The undertaker may use any watercourse, public sewer or drain on any land within the Order limits for the drainage of water in connection with the construction, operation or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may make openings into, and connections with, the watercourse, public sewer or drain, on any land within the Order limits.

(2) The undertaker must not discharge any water into any watercourse, public sewer or drain on any land within the Order limits except with the consent of the person to whom it belongs, such consent not to be unreasonably withheld or delayed but may be given subject to such terms and conditions as that person may reasonably impose.

(3) The undertaker must not make any opening into any public sewer or drain on any land within the Order limits except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs and such approval must not be unreasonably withheld or delayed; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(4) The undertaker must not, in carrying out or maintaining works under this article, damage or interfere with the bed or banks of any watercourse forming part of a main river, subject to the works that are authorised under this Order.

(5) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse, public sewer or drain under this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(6) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) must be determined as if it were a dispute under section 106 of the Water Industry Act 1991(11) (right to communicate with public sewers).

(7) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority, or a sewerage undertaker; and

(b) other expressions, excluding “watercourse”, used both in this article and in the Water Resources Act 1991(12) have the same meaning as in that Act.

(8) This article does not relieve the undertaker of any obligation to obtain from the Environment Agency any permit, licence or any other obligation under any other legislation that may be required to authorise the making of a connection to or the use of a public sewer or drain by the undertaker under paragraph 16(1) or the discharge of any water into any watercourse, sewer or drain under paragraph (2).

Protective work to buildings

17.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the construction of any part of the authorised development in the vicinity of the building; or

(b) after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

(3) For the purpose of determining how the powers under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—

(a) enter the building and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it) within the Order limits.

(5) Before exercising—

(a) a power under paragraph (1) to carry out protective works to a building;

(b) a power under paragraph (3) to enter a building and land within its curtilage;

(c) a power under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a power under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that power and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (5)(c) or (5)(d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 7 days beginning with the day on which the notice was served, require the question of whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 34 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which powers under this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a) protective works are carried out to a building under this article; and

(b) within 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the construction, operation or maintenance of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act (compensation for injurious affection).

(10) Any compensation payable under paragraph (7) or (8) must be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(11) In this article “protective works” in relation to a building means—

(a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, operation or maintenance of the authorised development; and

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the construction, operation or maintenance of the authorised development.

Authority to survey and investigate

18.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits, or onto any land which may be affected by the authorised development up to 250 metres away from the Order limits, or onto land which may be affected by the authorised development which is more than 250 metres from the Order limits with the prior approval of the relevant planning authority (or the local planning authority for land outside the London Borough of Enfield), and—

(a) survey or investigate the land;

(b) without limiting sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without limiting sub-paragraph (a), carry out ecological or archaeological investigations on such land; and

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes.

(2) The undertaker must serve a notice on every owner and occupier of the land at least 14 days before any land may be entered or equipment placed or left on or removed from the land under paragraph (1).

(3) Any person entering land under this article on behalf of the undertaker —

(a) must, if so required when entering the land, produce written evidence of their authority to do so; and

(b) may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes may be made under this article—

(a) in land located within the highway boundary without the consent of the highway authority, such consent not to be unreasonably withheld or delayed; or

(b) in a private street without the consent of the street authority, such consent not to be unreasonably withheld or delayed.

(5) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, in accordance with Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Compulsory acquisition of land

19.—(1) Save in relation to land to which article 22 (compulsory acquisition of rights) and article 26 (temporary use of land for carrying out the authorised development) applies, the undertaker may acquire compulsorily so much of the Order land as is required for or to facilitate the authorised development, or as is incidental to the authorised development.

(2) From the later of the date on which a compulsory acquisition notice is served or the date on which the Order land, or any part of it, is vested in the undertaker, that land or that part of it which is vested (as the case may be) is discharged from all leases, licences, rights, easements, liberties, privileges, advantages, restrictions, covenants, trusts and incidents to which it was previously subject.

(3) Any person who suffers loss by the extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Time limit for exercise of authority to acquire land compulsorily or use land temporarily

20.—(1) After the end of the period of 5 years beginning on the day on which this Order is made—

(a) no notice to treat may be served under Part 1 of the 1965 Act; and

(b) no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981(13) as applied by article 23 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The authority conferred by article 26 (temporary use of land for construction of authorised development) ceases at the end of the period referred to in paragraph (1), save that, subject to article 26(3) and article 26(5), nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Power to override easements and other rights

21.—(1) The construction, operation or maintenance of the authorised development and the doing of anything else authorised by this Order is authorised, notwithstanding that it involves—

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

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

(2) The interests and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and right to light.

(3) Where any interest, right or restriction to which this article applies is interfered with or breached, the interest, right or restriction is extinguished, temporarily suspended or discharged at the time the interference or breach commences in respect of the authorised activity in question, to the extent required for or ancillary or incidental to the carrying out of the authorised activity.

(4) Where any interest, right or restriction to which this article applies is interfered with or breached under paragraph (1), compensation—

(a) is payable under section 7 or 10 of the 1965 Act; and

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

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

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

(5) Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable by any person on any grounds other than such an extinguishment, temporary suspension or discharge as is mentioned in paragraph (3).

Compulsory acquisition of rights

22.—(1) The undertaker may acquire compulsorily the existing rights over land and create and acquire compulsorily the new rights (including new rights in relation to apparatus owned or operated by statutory undertakers and rights over land belonging to statutory undertakers within the Order land) described in the book of reference, set out in Schedule 10 (land in which rights etc., may be acquired) and shown on the land plans for the authorised development or to facilitate it or as incidental to it.

(2) From the later of—

(a) the date on which a compulsory acquisition notice is served; or

(b) the date on which any new right is vested in the undertaker,

the land over which any new rights are acquired is discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right.

(3) Subject to section 8 of the 1965 Act, where the undertaker acquires an existing right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

(4) Any person who suffers loss as a result of the extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Schedule 11 (modification of compensation and compulsory purchase enactments for creation of new rights) has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

23.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(14)—

(a) applies as if this Order were a compulsory purchase order; and

(b) as so applied, has effect with the following modifications.

(2) In section 5 (earliest date for execution of declaration), omit subsection (2).

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

(4) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 are to be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order.

Rights under or over streets

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

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

(3) Subject to paragraph (4), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(4) Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Rights over land

25.—(1) The undertaker may enter into and appropriate so much of the airspace over any land within the Order limits and over land indicated on drawing number E_0011 Rev 00 of the design code principles as may be required for the construction and maintenance of the authorised development and may use the airspace for those purposes or any other purposes ancillary to the authorised development.

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

(3) Subject to paragraph (4), any person who is an owner or occupier of land appropriated under paragraph 25(1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for construction of authorised development

26.—(1) The undertaker may, in connection with the construction of the authorised development—

(a) enter on and take temporary possession of the land specified in Schedule 12 (land of which temporary possession may be taken) for the purpose specified in relation to that land in that Schedule relating to the part of the authorised development specified in that Schedule;

(b) remove any buildings, structures and vegetation from that land; and

(c) remediate, carry out site levelling and surfacing, erect fencing and other means of enclosure, install utilities and services, and construct temporary works (including access), buildings and structures on that land.

(2) The undertaker must serve notice of its intended entry on the owners and occupiers of the land at least 14 days before entering on and taking temporary possession of the land under this article.

(3) Subject to paragraph (4), the undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in Schedule 12 (land of which temporary possession may be taken).

(4) The undertaker may remain in possession of the temporary laydown area for up to two years from the date of completion of Works No. 7.

(5) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the relevant land—

(a) to the reasonable satisfaction of the owners of the land;

(b) in accordance with the design code principles; and

(c) to a condition no worse than the relevant land was in before temporary possession of the relevant land was taken pursuant to this article,

but the undertaker is not required to replace a building removed under this article.

(6) The undertaker must produce a written record of the condition of the relevant land prior to taking possession (such record to be agreed by the owner).

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

(8) Any dispute as to a person’s entitlement to compensation under paragraph (7), or as to the amount of the compensation, must be determined under Part 1 of the 1961 Act.

(9) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (7).

(10) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1) except that the undertaker is not precluded from acquiring new rights over any part of that land under article 22 (compulsory acquisition of rights).

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

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

Temporary use of land for maintaining authorised development

27.—(1) At any time during the maintenance period relating to any part of the authorised development, the undertaker may—

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

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

(2) The undertaker must serve notice on the owners and occupiers of the land at least 14 days before entering on and taking temporary possession of the land under this article. The requirement to serve at least 14 days’ notice does not apply where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; or

(c) the surrounding environment,

and in such circumstances the undertaker may enter the land under paragraph (1) subject to giving such period of notice (if any) as is reasonably practicable in all the circumstances.

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

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

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

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

(7) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

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

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

(10) In this article, “the maintenance period”, in relation to any part of the authorised development, with the exception of the development described in paragraph (11), means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.

(11) In this article, “the maintenance period” in relation to—

(a) the operational site;

(b) landscaping over plots 15, 17, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 32 shown on the land plans; and

(c) Lee Park Way (including plot number 14, which is the bridge over the River Lee Navigation),

means the lifetime of the authorised development beginning with the date on which those parts of the authorised development are first opened for use.

Statutory undertakers

28.  Subject to Schedule 13 (protective provisions), the undertaker may—

(a) acquire compulsorily land belonging to statutory undertakers within the Order limits as described in the book of reference;

(b) temporarily suspend or extinguish the rights of statutory undertakers within the Order limits as described in the book of reference and remove or reposition the apparatus belonging to statutory undertakers within the Order limits; and

(c) acquire compulsorily new rights over land belonging to statutory undertakers within the Order limits as described in the book of reference.

Recovery of costs of new connections

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

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 21or article 22, any person who is—

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

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

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

(3) This article does not have effect in relation to apparatus to which Part 3 of the 1991 Act applies.

(4) In this article—

(a) “public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(15); and

(b) “public utility undertaker” has the same meaning as in the 1980 Act.

Application of landlord and tenant law

30.—(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 authorised development; and

(b) any agreement entered into by the undertaker with any person for the construction, operation or maintenance of the authorised development, or any part of it,

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

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

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

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

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

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

Operational land for purposes of the 1990 Act

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

Felling or lopping of trees

32.—(1) The undertaker may fell or lop any tree or shrub near any part of the authorised development, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from—

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

(b) constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must not cause unnecessary damage to any tree or shrub and must pay compensation to any person who sustains any loss or damage arising from such activity for that loss or damage.

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

Certification of documents and plans

33.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State printed copies of—

(a) the works plans (version AD02.01 (revision 2));

(b) the land plans (version AD02.01 (revision 2));

(c) the book of reference (version AD04.03 (revision 2));

(d) the environmental statement (version AD06.02, including volume 3 appendices (revision 1));

(e) the environmental commitments and mitigation schedule (AD06.03 (revision 2));

(f) the code of construction practice (AD05.12 (revision 2));

(g) the design code principles (AD02.02 (revision 1)); and

(h) the DCO Schedule 6-8 explanatory diagrams (AD03.05 (revision 1)),

for certification that they are true copies of the documents referred to in this Order.

(2) A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Arbitration

34.  Any difference or dispute under any provision of this Order, unless otherwise provided for in this Order or unless otherwise agreed between the parties, is to 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 Secretary of State.

No double recovery

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

Protective provisions for specified undertakers

36.  Schedule 13 (protective provisions) has effect.

Approvals, consents and appeals

37.—(1) Save as provided otherwise by this Order, Schedule 3 (procedure for approvals, consents and appeals) has effect in relation to all applications for consents, agreements, approvals or notices in relation to—

(a) the provisions of this Order;

(b) any document referred to in any provision of this Order; and

(c) the functions of the local authority set out in sections 60 and 61 of the Control of Pollution Act 1974(16).

(2) Where an application is made to the discharging authority for any consent, agreement, approval or notice required or contemplated by any provision of this Order, such consent, agreement, approval or notice must not be unreasonably withheld.

(3) Where any provision of this Order provides that the authorised development is to be constructed, operated or maintained in accordance with a document or details approved by the discharging authority pursuant to this Order, the document or approved details are to be taken to include any amendment or revision that may subsequently be approved or agreed by the discharging authority, or other consent, agreement or approval of the discharging authority.

Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy

Giles Scott

Head of Energy Infrastructure Planning and Coal Liabilities

Department for Business, Energy and Industrial Strategy

24th February 2017