The Lynn Offshore Wind Farm Order 2003

PART III MISCELLANEOUS AND GENERAL

Power to operate and use authorised works

14.  The Company may operate and use the authorised works as a system for generating and transmitting electricity.

Disapplication of section 36 of the Electricity Act 1989

15.  The provisions of section 36 of the Electricity Act 1989(1) shall not apply in relation to the authorised works.

Certification of plans, etc.

16.  The Company shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the sections to the Secretary of State for certification that they are true copies of the deposited plans and sections referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Obstructing execution of authorised works

17.  A person who without reasonable excuse:

(a) obstructs another person from constructing or maintaining any of the authorised works, or

(b) interferes with equipment or materials used in the construction, operation or maintenance of any of the authorised works, or

(c) in any other way interferes with any of the authorised works or their operation;

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Offences

18.—(1) If the Company fails to:

(a) comply in any material respect with a direction given under articles 6, 7 or 10,

(b) give notification as required by article 7, or

(c) comply in any material respect with articles 8, 10, 11 or 12

it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale; but it shall be a defence to the Company to show that all due diligence was used to secure compliance with the direction or to give the required notification.

Transfer of powers

19.—(1) The Company may enter into, and carry into effect, agreements for the transfer to another person of all or any of the powers conferred on the Company by this Order.

(2) The exercise of any power conferred by this Order by any other person in accordance with an agreement under paragraph (1) above shall be subject to the same obligations and liabilities under this Order as would apply if that power were exercised by the Company.

(3) Not later than 21 days before any such agreement comes into effect the Company shall give written notice to the Secretary of State and to Trinity House stating the name and address of the person to whom the powers are being transferred and the date when the transfer is to take effect (which shall not be earlier than the date of receipt of the notice by whichever of the Secretary of State or Trinity House is the last to receive notice).

For Protection of Environment Agency

20.—(1) The following provisions shall, unless otherwise agreed in writing between the Environment Agency (in this article referred to as “the Agency”) and the Company have effect.

(2) In this article:

“accumulation” means any accumulation of silt or other material;

“construction” includes execution and placing, maintenance, extension, enlargement, alteration, replacement, re-laying and removal; and “construct” and “constructed” shall be construed accordingly;

“erosion” means any erosion of the bed or shore of the sea or other structure of whatever nature, including the Lincshore sea defences, under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991(2);

“outfall” means:

(a)

any existing land drainage outfall for which the Agency is responsible; or

(b)

any sewer, pipe or drain provided for groundwater, surface water or storm overflow sewerage; and

“specified work” means any permanent or temporary work or operation authorised by or under this Order (which includes for the avoidance of doubt, any dredging and any exploratory geotechnical investigations that may be undertaken).

(3) (a) If, during the construction of a specified work or within 10 years after the completion of such work there is an accumulation or erosion or alteration of the tidal flow or littoral drift wholly or partly caused by such work which causes damage, or the reasonable expectation of damage within 2 years, the Company shall, if so required by the Agency before or within the period of 10 years after such completion, and subject to obtaining any necessary consents, remedy so much of such accumulation, erosion, alteration of tidal flow or littoral drift as is caused by such work, in the manner specified in sub-paragraph (e) below and, if it refuses or fails so to do, the Agency may itself cause work to be done and may recover the reasonable cost thereof from the Company.

(b) Should any such accumulation or erosion or alteration of the tidal flow or littoral drift arise during the said construction or the said period of 10 years and be remedied in accordance with sub-paragraph (a) above, any recurrence of such accumulation or erosion or alteration of the tidal flow or littoral drift shall, subject to sub-paragraph (c) below, from time to time be so remedied by the Company during the said period of 10 years and at any time thereafter.

(c) The Company’s obligation under this paragraph shall cease in the event that following the remedying of any such accumulation or erosion or alteration of the tidal flow or littoral drift a period of 10 years elapses without any further such accumulation or erosion or alteration of the tidal flow or littoral drift unless the specified works are decommissioned and removed before the end of that 10 year period, in which case the Company’s obligation under this paragraph shall cease upon the expiration of 2 years after such removal.

(d) In this paragraph, “damage” means any damage to or any adverse effect whatsoever upon the structure or operation of any outfall, flood or sea defences or other structure under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991.

(e) For the purposes of this paragraph:

(i) in the case of an accumulation, the remedy shall be its removal or such other protective works or measures as may be reasonably required by the Agency; and

(ii) in the case of erosion or alteration of tidal flow or littoral drift, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be reasonably required by the Agency provided always that the Agency will not require a remedy which results in betterment upon the average levels of accumulation, erosion, tidal flow or littoral drift for 2 years prior to the Agency’s requirement.

(f) To the extent that damage would have been caused in any event by factors other than the construction of a specified work the Company shall not be liable to remedy such accumulation or erosion or alteration of tidal flow or littoral drift.

(4) For the purposes of paragraph (3)(a) above the date of completion of a specified work shall be the date on which it is brought into use.

(5) (a) Save for the Company’s liability to the Agency in relation to remedying damage caused by accumulation or erosion or alteration of the tidal flow or littoral drift as set out in the provisions of paragraph (3) above (which provisions are, for the avoidance of any doubt, exhaustive as to the Agency’s remedies in that regard) and subject always to sub-paragraph (b) below the Company shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss which may be made or taken against, or recovered from or reasonably incurred by, the Agency to the extent they are caused by the construction of any of the specified work or by reason of their maintenance, repair, alteration, renewal, removal, existence or use or any act or omission of the Company, its contractors, agents, workmen, or servants whilst engaged upon any such work.

(b) The Agency shall:

(i) give to the Company notice of any such claim, demand, proceedings, costs, damages or expenses or loss as soon as is reasonably practicable;

(ii) consult the Company in relation to the conduct of the defence and settlement or compromise thereof;

(iii) in the event that it is agreed that the Company shall assume the control and conduct of the defence and settlement or compromise thereof give such reasonable assistance as may reasonably be required by the Company in the defence, settlement or compromise thereof; and

(iv) not in any event make a settlement or compromise thereof without the agreement of the Company which agreement shall not be unreasonably withheld.

(6) Except as otherwise provided by this article nothing in this Order shall prejudice or affect in their application to the Agency the powers, rights, jurisdiction and obligations conferred, arising or imposed under the Land Drainage Act 1991(3), the Salmon and Freshwater Fisheries Act 1975(4) the Water Resources Act 1991 or any other enactment, byelaw or regulation relating to the Agency or any existing approvals or consents granted by the Agency to the Company under any enactment, byelaw or regulation.

(7) (a) Any dispute or difference between the Company and the Agency arising under, out of, or in connection with this article shall be referred to and settled by a single arbitrator appointed by agreement between the parties on reference to him by either party, after notice in writing to the other, or, in default of agreement, by the President or Vice President of the Institution of Civil Engineers.

(b) Without fettering the said right to commence arbitration proceedings the Company and the Agency will attempt to settle any dispute or difference by mediation.

Crown rights

21.—(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 Company to take, use, enter upon or in any manner interfere with, any land, hereditaments or rights of whatsoever description (including any part of the shore or bed of the sea or any other river, channel, creek, bay or estuary)—

(a) belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners without the consent in writing of those Commissioners; or

(b) belonging to a government department, or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.

(2) A consent under paragraph (1) above may be given unconditionally or subject to such conditions and upon such terms as may be considered necessary or appropriate.

(1)

1989 c. 29.

(2)

1991 c. 57.

(3)

1991 c. 59.

(4)

1975 c. 51.