The South Hook Combined Heat and Power Plant Order 2014

Citation and commencement

1.  This Order may be cited as the South Hook Combined Heat and Power Plant Order 2014 and shall come into force on the day after the day on which it is made.

Interpretation

2.—(1) In this Order—

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

“the 1980 Act” means the Highways Act 1980(2);

“the 1990 Act” means the Town and Country Planning Act 1990(3);

“the 1991 Act” means the New Roads and Street Works Act 1991(4);

“the 2008 Act” means the Planning Act 2008;

“authorised development” means the development described in Schedule 1 (authorised development) which is development within the meaning of section 32 of the 2008 Act;

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

“CCS proposal” means a proposal for the capture, transport and storage of the target carbon dioxide, which identifies the proposed capture technology, transport route and storage location;

“current CCS proposal” means—

(a)

the CCS proposal set out in the Feasibility Study and assessed as technically feasible by the Secretary of State, or

(b)

if a revised CCS proposal has been identified under Article 14(7), the proposal which has been most recently so identified;

“commissioning” means the process of assuring that all systems and components of the authorised development are installed, tested, and operable in accordance with the design and operational requirements of the undertaker;

“design principles statement” means the design principles statement with reference number 1.22 (28th February 2014) and certified as the design principles statement by the Secretary of State for the purposes of this Order;

“draft CCP” means the draft code of construction practice with reference number 1.23 submitted with the application and certified as the draft CCP by the Secretary of State for the purposes of this Order;

“draft landscaping plan” means the draft landscaping plan with reference number 2.13 and certified as the draft landscaping plan by the Secretary of State for the purposes of this Order;

“the Environmental Permitting Regulations” means the Environmental Permitting (England and Wales) Regulations 2010(5) as may be amended from time to time;

“environmental statement” means the environmental statement in three volumes and a non-technical summary with reference numbers 1.3.1 to 1.3.4 submitted with the application and certified as the environmental statement by the Secretary of State for the purposes of this Order;

“Feasibility Study” means the document entitled Carbon Capture Readiness Assessment with reference number 1.21 submitted with the application and certified as the Feasibility Study by the Secretary of State for the purposes of this Order;

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

“key buildings” means the key buildings and structures set out in the works plan (part B);

“the limits of deviation” means the limits of deviation for the electrical sub-station (HV switchgear indoor gas insulated building and compound) and the stack shown on the works plan (part B);

“Natural Resources Wales” means the Natural Resources Body for Wales;

“the Order limits” means the limits shown on the works plan (part A) within which the authorised development may be carried out;

“permanent works” means the authorised development within Work Nos. 1A, 2, 3A, 4, 5, 6, 7A and 10A and identified as permanent works in Schedule 1 (authorised development);

“the proposed site layout plan” means the proposed site layout plan with reference number 1.13C submitted with the application and certified as the proposed site layout plan by the Secretary of State for the purposes of this Order;

“relevant planning authority” means Pembrokeshire Coast National Park Authority in relation to land in its area and Pembrokeshire County Council in relation to land in its area and “the relevant planning authorities” means both of them;

“requirements” means those matters set out in Schedule 2 (requirements);

“the section drawing plan” means the section drawing plan with reference number 1.9 (Rev C) and certified as the section drawing plan by the Secretary of State for the purposes of this Order;

“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 works” means the authorised development within Work Nos. 1B, 3B, 7B, 8, 9, 10B and 11 and identified as temporary works in Schedule 1 (authorised development);

“transport assessment” means the transport assessment with reference number 1.19A submitted with the application and certified as the transport assessment by the Secretary of State for the purposes of this Order;

“undertaker” means South Hook CHP Limited (company number 8109296) or such alternative person as has the benefit of this Order under section 156(1) of the 2008 Act; and

“the works plans” means works plan (part A) with reference number 1.10A and works plan (part B) with reference number 1.10B (Rev B) and certified as the works plans by the Secretary of State for the purposes of this Order, and references in this Order to “works plan (part A)” or “works plan (part B)” must be construed accordingly.

(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 air-space above its surface.

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

Development consent etc. granted by the Order

3.—(1) Subject to the provisions of this Order and to the requirements the undertaker is granted development consent for the authorised development to be carried out within the Order limits, and Schedule 1 (authorised development) and Schedule 2 (requirements) have effect for that purpose.

(2) Each numbered work comprised in the authorised development must be constructed within the correspondingly numbered area shown on the works plan (part A).

(3) Subject to paragraph (4), in constructing or maintaining the key buildings shown and identified on the works plan (part B), the undertaker may—

(a) deviate laterally from the building outlines shown for those key buildings shown and identified on the works plan (part B) to any such extent inwards as may be necessary, convenient or expedient; and

(b) deviate vertically from the building levels shown for those key buildings on the sections shown and identified on the section drawing plan to any such extent downwards as may be necessary, convenient or expedient.

(4) The works comprised in the electrical sub-station (HV switchgear indoor gas insulated building and compound) and the stack may be constructed within the limits of deviation subject to the relevant dimensions for these works set out in the design principles statement and as set out below—

(a) for key building 4 (the electrical sub-station (HV switchgear indoor gas insulated building and compound))—

(i) the limits of deviation dimensions are a length of 140m (approximate east/west axis), and width of 50m (approximate north/south axis);

(ii) the key building dimensions are a height up to 7m, length up to 79m, and width up to 47m;

(b) for key building 9 (the stack)—

(i) the limits of deviation dimensions are a length of 23m (approximate east/west axis), and width of 8m (approximate north/south axis);

(ii) the key building dimensions are a height up to 85m, and diameter up to 8m.

Procedure in relation to certain approvals etc. under requirements

4.—(1) Where an application is made to a relevant planning authority for any consent, agreement or approval required by a requirement, the following provisions apply, insofar as they are not inconsistent with orders, rules or regulations made under the 2008 Act, in respect of that application as they would apply if the consent, agreement or approval so required was required by a condition imposed on a grant of planning permission—

(a) sections 78 and 79 of the 1990 Act (right of appeal in relation to planning decisions);

(b) any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission.

(2) For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant to this article, the undertaker is deemed to be a holder of a licence under section 6 of the Electricity Act 1989(6).

(3) For the avoidance of doubt, the right of appeal conferred by paragraph (1) above pursuant to sections 78 and 79 of the 1990 Act is by notice to the Secretary of State.

Maintenance of authorised development

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

Operation of generating station

6.—(1) The undertaker is hereby authorised to operate the generating station comprised in the authorised development for the purpose of generating electricity and heat, including as a combined heat and power plant through the provision of heat to the existing South Hook LNG Terminal together with the generation of electricity.

(2) This article does not relieve the undertaker of any obligation to obtain any permit or licence under any other legislation that may be required from time to time to authorise the operation of a generating station.

Consent to transfer benefit of Order

7.—(1) Without prejudice to section 156 of the 2008 Act, 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), shall 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) must be subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

Defence to proceedings in respect of statutory nuisance

8.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(7) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974(8); or

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

(b) the defendant shows that the nuisance—

(i) 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; or

(ii) 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 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 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), shall 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.

Access to works

9.  The undertaker may, for the purposes of the authorised development, and after the details of the proposed access works have been submitted to and approved by the relevant planning authorities, form and lay out such means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

Discharge of water

10.—(1) The undertaker may use any watercourse or any public sewer 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, public sewer or drain.

(2) 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(9) (right to communicate with public sewers).

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

(4) The undertaker must not make any opening into any public sewer or drain except—

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

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

(5) The undertaker must not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer 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.

(7) This article does not authorise a groundwater activity or water discharge activity within the meaning of the Environmental Permitting Regulations.

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, Natural Resources Wales, a harbour authority within the meaning of section 57 of the Harbours Act 1964(10) (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation;

(b) “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;

(c) other expressions, excluding watercourse, used both in this article and in the Environmental Permitting Regulations have the same meaning as in those Regulations; and

(d) other expressions, excluding watercourse, used both in this article and the Water Resources Act 1991(11) but not the Environmental Permitting Regulations have the same meaning as in that Act.

Authority to survey and investigate and remediate the land

11.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits and—

(a) survey or investigate or remediate the land, subject where applicable, in the case of remedial investigations and works to requirement 9 (contaminated land and groundwater), in the case of archaeological investigations and works to requirement 10 (archaeology) and in the case of ecological investigations and works to requirement 11 (ecological management plan);

(b) without prejudice to the generality of sub-paragraph (a), make trial pits or bore holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and groundwater, remove soil or water samples and conduct any geotechnical, chemical or other testing on such samples;

(c) without prejudice to the generality of sub-paragraph (a), carry out any remedial works the undertaker thinks fit in connection with the authorised development;

(d) without prejudice to the generality of sub-paragraph (a), carry out archaeological or ecological investigations on such land; and

(e) 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 pits or bore 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 owner and occupier of the land.

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

(a) must, if so required upon 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, investigation, or remediation or to make the trial pits or bore holes.

(4) No trial pits or bore holes shall be made under this article—

(a) in land located within the highway boundary without the consent of the highway authority; or

(b) in a private street without the consent of the street authority, but such consent must not be unreasonably withheld.

(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, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Application of landlord and tenant law

12.—(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and

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

so far as any such agreement relates to the terms on which any land 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 shall prejudice the operation of any agreement to which this article applies.

(3) Accordingly, no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

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

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

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

Operational land for purposes of the 1990 Act

13.  Development consent granted by this Order shall 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) from the date at which the undertaker obtains a generation licence under section 6 of the Electricity Act 1989.

Carbon Capture Readiness

14.—(1) The following definitions apply for the purposes of this article—

(a) “capture equipment” means the plant and equipment required to capture the target carbon dioxide and identified as such in the current CCS proposal;

(b) “designated site” means the land identified in the Feasibility Study as the area where the undertaker proposes to locate the capture equipment;

(c) “CCR report” means the report to be provided to the Secretary of State by the undertaker pursuant to paragraph (3) below;

(d) “target carbon dioxide” means as much of the carbon dioxide emitted by the authorised development when it is operating at full capacity as it is reasonably practicable to capture for the purposes of permanent storage, having regard to the state of the art in carbon capture and storage technology.

(2) Until such time as the authorised development is decommissioned, the undertaker must not, without the written consent of the Secretary of State—

(a) dispose of any interest in land which includes the designated site; or

(b) do any other thing, or allow any other thing to be done or to occur, which may reasonably be expected to diminish the undertaker’s ability, within two years of such act or occurrence, to install and operate the capture equipment on the designated site.

(3) The undertaker must make a report (the “CCR report”) to the Secretary of State—

(a) on or before the date on which three months have passed from completion of commissioning;

(b) within one month of the second anniversary, and each subsequent even-numbered anniversary, of that date.

(4) The CCR report must provide evidence that the undertaker has complied with paragraph (2)—

(a) in the case of the first CCR report, since this Order was made;

(b) in the case of any subsequent CCR report, since the making of the previous report,

and explain how it expects to continue to comply with paragraph (2) over the next two years.

(5) The CCR report must state whether the undertaker considers that some or all of the technology referred to in the current CCS proposal will not work, and explain the reasons for any such conclusion.

(6) The CCR report must identify any other impediment of which the undertaker is aware, as a result of which it considers that any aspect of what is proposed in the current CCS proposal is likely or certain not to be technically feasible.

(7) CCR reports which identify such an impediment must state, with reasons, whether the undertaker considers it technically feasible to overcome the impediment by adopting a revised CCS proposal, and, if so, include such proposal.

(8) The CCR report must state, with reasons, whether the undertaker has decided to seek any additional regulatory clearances, or to modify any existing regulatory clearances, in respect of its current CCS proposal in the period referred to in paragraph (4) as appropriate.

(9) This article shall cease to have effect if the capture equipment is installed or the authorised development is decommissioned.

Certification of plans etc

15.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State dated and referenced copies of—

(a) the works plans (part A and part B);

(b) the section drawing plan;

(c) the proposed site layout plan;

(d) the draft landscaping plan;

(e) any other plans or documents referred to in this Order, including—

(i) the Feasibility Study;

(ii) the environmental statement;

(iii) the design principles statement;

(iv) the draft CCP;

(v) the transport assessment;

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

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

(3) The undertaker shall submit to the relevant planning authorities copies of any plans or documents certified by the Secretary of State under paragraph (1).

Arbitration

16.—(1) Any difference under any provision of this Order, unless otherwise provided for, must be referred to and finally settled under the rules of arbitration of the International Chamber of Commerce by arbitrators appointed in accordance with those rules of arbitration.

(2) The arbitration must be held in Cardiff (unless otherwise agreed by the parties to the proceedings) and the arbitration proceedings must be conducted, and the award rendered, in the English language.

(3) Where reasonably requested by any party to the proceedings, simultaneous translation of the proceedings will be provided in Welsh and the award translated into the Welsh language.

(4) The resulting arbitral award shall be final and binding without right of appeal, and judgment upon such award may be entered in any court having jurisdiction thereof.

Signed by authority of the Secretary of State for Energy and Climate Change

Giles Scott

Head of National Infrastructure Consents

Department of Energy and Climate Change

22nd October 2014