The East Midlands Gateway Rail Freight Interchange and Highway Order 2016

PART 6 E+W+S MISCELLANEOUS AND GENERAL

Operation and use of railways E+W+S

33.—(1) The undertaker may operate and use the railway comprised in the authorised development and any other elements of the authorised development as a system, or part of a system, of transport for the carriage of goods.

(2) Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993(1).

Commencement Information

I1 Art. 33 in force at 2.2.2016, see art. 1

Operational land for the purposes of the 1990 Act E+W+S

34.  Development consent granted by this Order within that part of the Order limits upon which the highway works are to be carried out 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).

Commencement Information

I2 Art. 34 in force at 2.2.2016, see art. 1

Charges E+W+S

35.  The undertaker may demand, take or recover or waive such charges for carrying goods on the railway comprised in the authorised development, or for any other services or facilities provided in connection with the operation of that railway, as it thinks fit.

Commencement Information

I3 Art. 35 in force at 2.2.2016, see art. 1

Defence to proceedings in respect of statutory nuisance E+W+S

36.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(2) (summary proceedings by persons 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 may be made, and no fine may be imposed, under section 82(2)(3) 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) of the Control of Pollution Act 1974(4); 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 is a consequence of the use of the authorised development and that it cannot be reasonably avoided.

(2) Section 61(9) of the Control of Pollution Act 1974, does not apply where the consent relates to the use of the premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Commencement Information

I4 Art. 36 in force at 2.2.2016, see art. 1

Felling or lopping of trees E+W+S

37.—(1) Subject to sub-paragraph (4) the undertaker may fell or lop any tree, shrub or hedgerow 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, shrub or hedgerow—

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

(b) from 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, shrub or hedgerow and must pay compensation to any person for any loss or damage arising from such activity.

(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.

(4) The provisions of this article do not apply without the agreement of the local planning authority to any tree or hedgerow identified to be retained in the landscaping scheme approved under requirement 8 (provision of landscaping and ecological mitigation).

(5) The provisions of this article do not apply without the agreement of the relevant highway authority to any tree within a highway.

Commencement Information

I5 Art. 37 in force at 2.2.2016, see art. 1

Protection of interests E+W+S

38.  Schedules 15 to 21 to this Order have effect.

Commencement Information

I6 Art. 38 in force at 2.2.2016, see art. 1

Certification of plans etc. E+W+S

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

(a) the access and rights of way plans (Document 2.3A-F);

(b) the book of reference (Document 4.3C);

(c) the construction management framework plan (Document 6.10);

(d) the construction management strategy for safeguarding the Derwent Valley Aqueduct (Document 6.14);

(e) the design and access statement (Document 6.9);

(f) drawing of Quarry Exit at J24 (NTH/209/SK137 P2) (Document 6.26);

(g) the environmental statement (Document 5.2);

(h) the highway classifications plans (Document 2.5A and B);

(i) the highways works components plans (Document 2.13a-c);

(j) the illustrative rail interchange drawings (Document 2.12A-B);

(k) the land plans (Document 2.1A-F);

(l) the management strategy for the safeguarding of East Midlands Airport (Document 6.12);

(m) the parameters plans (Document 2.10);

(n) the regulation 6(2) plans (Document 2.4A-N);

(o) the schedule of archaeological works (Document 6.24);

(p) site waste management framework plan (Document 6.11);

(q) the speed limit plans (Document 2.7A and B);

(r) site wide travel plan (Document 6.25);

(s) the traffic regulation plans (Document 2.6A-D); and

(t) the works plans (Document 2.2A-F),

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.

Commencement Information

I7 Art. 39 in force at 2.2.2016, see art. 1

Service of notices E+W+S

40.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post;

(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

(c) with the consent of the recipient and subject to paragraphs (6) to (8), by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(5) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of that land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(c) the notice or document is legible in all material respects; and

(d) in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date may not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

(10) In this article—

“electronic transmission” means a communication transmitted—

(a)

by means of electronic communications network; or

(b)

by other means but while in electronic form; and

“legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Commencement Information

I8 Art. 40 in force at 2.2.2016, see art. 1

Arbitration E+W+S

41.  Any difference under any provision of this Order, unless otherwise provided for, must 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) to the Lands Chamber of the Upper Tribunal.

Commencement Information

I9 Art. 41 in force at 2.2.2016, see art. 1

Governance of requirements and protection of interests relating to highway works E+W+S

42.—(1) When in any requirement or in Schedule 19 (for the protection of Highways England) or Schedule 20 (for the protection of Leicestershire County Council as highway authority) approval or agreement is required of, or with, any body in relation to the content, carrying out or use of the authorised works (including for the avoidance of doubt the approval of details or plans under the requirements) such approval or agreement must not be given if it would give rise to development outside the parameters of the authorised development referred to in article 4 (parameters of authorised development).

(2) When any details, plans or other matters have been agreed or approved by the local planning authority under a requirement or the relevant highway authority under a requirement or Schedule 19 or Schedule 20 then they may subsequently be amended by agreement with the local planning authority or relevant highway authority as the case may be provided that no amendments to those details, plans or other matters may be approved where such amendments would permit development outside the scope of the authorised development or development which would give rise to any significant adverse environmental effects that have not been assessed in the environmental statement (Document 5.2) or any updated environmental information supplied under the 2009 EIA Regulations.

(3) Unless otherwise stated in a requirement the requirement is enforceable by the local planning authority.

Commencement Information

I10 Art. 42 in force at 2.2.2016, see art. 1

(1)

1993 c. 43. This Act has been amended by the Transport Act 2000 (c. 38), the Railways and Transport Safety Act 2003 (c. 20) and the Railways Act 2005 (c. 14). There are other amendments to this Act which are not relevant to this Order.

(2)

1990 c. 43. There are amendments to this Act which are not relevant to this Order.

(3)

Subsection 82(2) was amended by section 5(1) and (2) of the Noise and Statutory Nuisance Act 1993 (c. 40); there are other amendments to this subsection but none are relevant to this Order.

(4)

1974 c. 40. Section 61(2) was amended by section 133(2) of, and Schedule 7 to, the Building Act 1984 (c. 55). Section 61(9) was amended by section 162 of, and paragraph 15 of Schedule 3 to, the Environmental Protection Act 1990 (c. 43). There are other amendments to the 1974 Act which are not relevant to this Order.

(5)

1978 c. 30.