The Associated British Ports (Immingham Eastern Ro-Ro Terminal) Development Consent Order 2024

PART 5

SUPPLEMENTAL POWERS

Discharge of water

24.—(1) Subject to the provisions of this article, the undertaker may use any watercourse or drain for the drainage of water in connection with the carrying out or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse or drain.

(2) Any dispute arising from the making of connections to or the use of a watercourse or a drain by the undertaker pursuant to paragraph (1) is to be determined as if it were a dispute under section 106(1) (right to communicate with public sewers) of the Water Industry Act 1991(2)

(3) The undertaker must not discharge any water into any watercourse or drain except with the consent of the Board and in accordance with the provisions of Part 13 of Schedule 4 (protective provisions).

(4) The undertaker must not make any opening into or connections with any watercourse or drain in connection with the authorised development or lay down, take up or alter pipes on any land within the Order limits or carry out any specified work except in accordance with the provisions of Part 13 of Schedule 4 and in accordance with plans approved by the Board in accordance with the provisions of Part 13 of Schedule 4 .

(5) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension and the authorised development does not obstruct the path of the Habrough Marsh Drain outfall channel.

(6) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(3) in respect of a water discharge activity or groundwater activity.

(7) The undertaker must not, in carrying out or maintaining any works under this article, damage or interfere with the bed or banks of any watercourse or drain without the prior written consent of the Board.

(8) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) (offences of polluting water) of the Water Resources Act 1991(4).

(9) The undertaker must monitor the path of the Habrough Marsh Drain outfall channel and report to the Board annually for a period of 10 years from the commencement of the authorised development as to whether any substantial changes to the path of the Habrough Marsh Drain outfall channel have occurred as a result of the authorised development.

(10) In this article expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(5) have the same meaning as in that Act.

(11) In paragraph (4), “specified work” has the same meaning as in Part 13 of Schedule 4.

Powers to dredge

25.—(1) For the purpose of constructing, operating and maintaining Work No.2, the undertaker may dredge, deepen, scour, cleanse, alter and improve the river bed and foreshore of the River Humber within the limits and to the depth specified for that work in accordance with the deemed marine licence.

(2) Subject to paragraph (3), the undertaker may use, deposit or otherwise dispose of materials dredged or removed (other than a wreck within the meaning of Part 9 (salvage and wreck) of the Merchant Shipping Act 1995(6)) as the undertaker thinks fit.

(3) No materials dredged under the powers of this Order may be disposed of in the UK marine area except in accordance with an approval from the MMO under the deemed marine licence or under any other marine licence granted by the MMO.

Authority to survey and investigate the land

26.—(1) The undertaker may for the purposes of this Order enter on—

(a) any land within the Order limits; and

(b) where reasonably necessary, any land which is adjacent to but outside the Order limits, or which may be affected by the authorised development, and—

(i) survey or investigate the land;

(ii) without limitation to the scope of sub-paragraph (i), 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;

(iii) without limitation to the scope of sub-paragraph (i), carry out ecological or archaeological investigations on such land, including making any excavations or trial holes on the land for such purposes; and

(iv) 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) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every occupier of the land.

(3) The notice required under paragraph (2) must indicate the nature of the survey or investigation that the undertaker intends to carry out.

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

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

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

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

(6) Section 13(7) (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto 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(8) (application of compulsory acquisition provisions) of the 2008 Act.

Protective works to buildings

27.—(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 carrying out in the vicinity of the building of any part of the authorised development; 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 functions under this article are to be exercised the undertaker may (subject to paragraph (5)) enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out protective works to a building under this article 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).

(5) Before exercising—

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

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

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

(d) a right 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 right 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 10 days beginning with the day on which the notice was served, require the question 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 35 (arbitration).

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

(8) Where—

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

(b) within the period of 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 carrying out or use 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 152(9) (compensation in case where no right to claim in nuisance) of the 2008 Act .

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, as if it were a dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(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 carrying out, maintenance or use of the authorised development;

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development; and

(c) any works the purpose of which is to secure the safe operation of the authorised development or to prevent or minimise the risk of such operation being disrupted.

Agreement with highway authority

28.—(1) A highway authority and the undertaker may enter into an agreement in writing with respect to—

(a) the strengthening or improvement of any highway under the powers conferred by this Order; or

(b) such other works as the parties may agree.

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

(a) provide for the highway authority to carry out any function under this Order which relates to the highway or land in question;

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

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

(1)

1991 c. 56. Section 106 was amended by sections 35(1) and (8) and 43(2) of, and Schedule 2 to, the Competition and Service (Utilities) Act 1992 (c. 43), sections 36(2) and 99 of the Water Act 2003 (c. 37) and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29).

(2)

1991 c. 56.

(3)

S.I. 2016/1154.

(4)

1991 c. 57.

(5)

1991 c. 57.

(6)

1995 c. 21.

(7)

1965 c. 56. Section 13 was amended by sections 62(3) and 139(4) to (9) of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Upper Tribunals, Courts and Enforcement Act 2007 (c. 15).

(8)

2008 c. 29. Section 125 was amended by section 190 of, and paragraph 17 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22).

(9)

Section 152 was amended by S.I. 2009/1307.