This Order may be cited as the Hornsea Two Offshore Wind Farm Order 2016.

This Order comes into force on 7th September 2016.

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.

All distances, directions and lengths referred to in this Order are approximate, except for the parameters referred to in Requirements 2 and 4 and Conditions 1 and 2 in Part 2 of each of the deemed marine licences; and distances between parts of a Work must be measured along that Work.

References in this Order to points identified by letters, with or without numbers, must be construed as references to points so lettered on the works plans.

A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under this Order is enforceable against the guarantor or person giving the alternative form of security by any person to whom the compensation is payable and must be in such a form as to be capable of enforcement by such a person.

Nothing in this article requires a guarantee or alternative form of security to be in place for more than 20 years after the date on which the relevant power is exercised.

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 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 project.

Each Work must be constructed and maintained within the limits of deviation for that Work.

In carrying out a Work, the undertaker may deviate from the situations shown on the works plans and described in Schedule 1 to the extent of the limits of deviation.

The grant of development consent is subject to paragraphs 2(2) and (3) and 3(2) to (8) of Part 1 of Schedule 1.

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

No maintenance works, the likely effects of which on the environment must be assessed in accordance with the EIA Regulations and are not assessed in the environmental statement, may take place, unless otherwise approved by the MMO or the local planning authority.

Where the MMO or local planning authority’s approval is required under paragraph (2), consent may be given only where it has been demonstrated to the satisfaction of the MMO or the local planning authority that the approval sought is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

Optimus Wind is authorised to operate the generating station comprised in the Project A works.

Breesea is authorised to operate the generating station comprised in the Project B works.

This article does not relieve Optimus Wind or Breesea of any requirement to obtain any permit or licence under any other legislation that may be required to authorise the operation of a generating station.

Sections 54 and 55 of the 1991 Act as applied by paragraph (1) have effect as if references in section 57 of that Act to emergency works included a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

Without limiting paragraph (1), the undertaker may use any street temporarily stopped up under the powers conferred by this article within the Order limits as a temporary working site.

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 under this article if there would otherwise be no such access.

Without limiting paragraph (1), the undertaker may temporarily stop up, alter or divert the streets set out in column (2) of Schedule 3 (streets to be temporarily stopped up) to the extent specified, by reference to the letters and numbers shown on the works plans, in column (3) of that Schedule.

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 (determination of questions of disputed compensation).

If a street authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraph (5)(b), the street authority is deemed to have given consent.

If the local planning authority fails to notify the undertaker of its decision within 28 days of receiving an application for approval under paragraph (1)(b), the local planning authority is deemed to have given approval.

The undertaker may carry out highway improvements to the plot marked 133 on the land plans.

The highway improvements must be carried out in accordance with plans approved by the highway authority, such approval not to be unreasonably withheld.

If the highway authority fails to notify the undertaker of its decision within 28 days of receiving plans for approval under paragraph (2), the highway authority is deemed to have given approval.

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 project and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits and subject to receipt of consent under paragraph (3), make openings into, and connections with, the watercourse, public sewer or drain.

The undertaker must not discharge any water into any watercourse, public sewer or drain without 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.

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.

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.

Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010.

If a person fails to notify the undertaker of a decision within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a), the person is deemed to have granted consent or given approval, as the case may be.

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.

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.

Where a notice is served under paragraph (5)(a), (c) or (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 41 (arbitration).

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 the powers.

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

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.

The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Optimus Wind may, with the consent of Breesea, such consent not to be unreasonably withheld, acquire compulsorily so much of the Order land as is required for the Project A works, the shared works or to facilitate, or is incidental to, the construction, operation and maintenance of those works.

Breesea may, with the consent of Optimus Wind, such consent not to be unreasonably withheld, acquire compulsorily so much of the Order land as is required for the Project B works, the shared works or to facilitate, or is incidental to, the construction, operation and maintenance of those works.

If the undertaker whose consent is required under paragraph (1) or (2) fails to notify the undertaker requesting consent of its decision within 28 days of receiving an application for consent, the first-mentioned undertaker is deemed to have given consent.

Subject to paragraph (3), Optimus Wind may, with the consent of Breesea, such consent not to be unreasonably withheld, acquire compulsorily such rights or impose such restrictive covenants over the Order land as may be required for any purpose for which that land may be acquired under article 18 (compulsory acquisition of land) by creating them as well as by acquiring rights already in existence.

Subject to paragraph (3), Breesea may, with the consent of Optimus Wind, such consent not to be unreasonably withheld, acquire compulsorily such rights or impose such restrictive covenants over the Order land as may be required for any purpose for which that land may be acquired under article 18 by creating them as well as by acquiring rights already in existence.

In the case of the Order land set out in column (1) of Schedule 5 (land in which new rights etc., may be acquired), the powers of compulsory acquisition conferred under paragraphs (1) and (2) and under article 18 are limited to the acquisition of such new rights or the imposition of such restrictive covenants as may be required for the purpose specified in relation to that land in column (2) of that Schedule.

Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights, etc.)), where the undertaker acquires an existing right over land or imposes a restrictive covenant under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.

Schedule 6 has effect for the purpose of modifying enactments relating to compensation and 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 or the imposition of a restrictive covenant.

In any case where the acquisition of new rights or the imposition of restrictive covenants under paragraph (1) or (2) is required for the purpose of diverting, replacing or protecting apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to acquire such rights to the statutory undertaker in question.

The exercise by a statutory undertaker of any power in accordance with a transfer under paragraph (6) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.

Any person who suffers loss as a result of the extinguishment or 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.

If the undertaker whose consent is required under paragraph (1) or (2) fails to notify the undertaker requesting consent of its decision within 28 days of receiving an application for consent, the first-mentioned undertaker is deemed to have given consent.

The authority conferred by article 26 ceases at the end of 15th August 2021, but 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 taken, on or before that date.

Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable, in so far as their continuance would be inconsistent with the purpose for which temporary possession is taken, for as long as the undertaker remains in lawful possession of the land.

Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with section 152 of the 2008 Act to be determined, in case of dispute, under Part 1 of the 1961 Act.

Reference in this article to private rights over land includes reference to any trusts or incidents to which the land is subject.

The 1981 Act applies as if this Order were a compulsory purchase order.

The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

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

The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of, or the airspace over, the land referred to in article 18 as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

Where under paragraph (1) the undertaker acquires any part of, or rights in, the subsoil of or the airspace over, land, the undertaker is not required to acquire an interest in any other part of the land.

Paragraph (2) does not prevent article 24 (acquisition of part of certain properties) from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat that states that the owner is willing and able to sell the whole (the “land subject to the counter-notice”).

If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat.

If such a counter-notice is served within that period, the question whether the owner must sell only the land subject to the notice to treat must, unless the undertaker agrees to take the land subject to the counter-notice, be referred to the tribunal.

Where, by reason of a determination by the tribunal under this article, a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

Where the owner is required under this article to sell only part of a house, building or manufactory or of land consisting of a house with a park or garden, the undertaker must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Subject to paragraph (3), 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.

Compensation is not payable under paragraph (4) 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.

Not less than 14 days before entering on and taking temporary possession of or using land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

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 any power conferred by this article.

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.

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 project, other than loss or damage for which compensation is payable under paragraph (7).

The undertaker may not under this Order compulsorily acquire the land referred to in paragraphs (1)(a)(i) and (ii), (2)(a) or (3)(a); and the undertaker may not acquire rights in or impose restrictive covenants over any part of that land unless it is set out in column (1) of Schedule 5.

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

The powers in this article may be exercised by each undertaker in relation to the same land at the same time as the other undertaker or at different times, and may be exercised more than once.

Not less than 28 days before entering on and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

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 project for which possession of the land was taken.

Before giving up possession of land of which temporary possession is 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.

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 powers in this article.

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

Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the maintenance of the authorised project, other than loss or damage for which compensation is payable under paragraph (6).

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

Section 13 of the 1965 Act applies to the temporary use of land pursuant to 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.

The powers in this article may be exercised by each undertaker in relation to the same land at the same time as the other undertaker or at different times, and may be exercised more than once.

Where any apparatus of a public utility undertaker or a public communications provider is removed under article 28 (statutory undertakers), 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.

The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

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 for any loss or damage arising from such activity.

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.

The undertaker may remove any hedgerows within the Order limits that may be required for the purposes of the carrying out of the authorised development.

In this article, “hedgerow” has the same meaning as in the Hedgerows Regulations 1997.

The undertaker may lop any tree within or overhanging land within the Order limits that is subject to a tree preservation order made after 3rd November 2014.

The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

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.

Nothing in this article limits the Secretary of State’s powers under Chapter 3 of Part 2 of the 2004 Act (decommissioning of offshore installations).

Except as otherwise provided in this Order, the provisions of this Order have effect solely for the benefit of the undertaker.

Where the consent of the Secretary of State is required for a transfer or grant under paragraph (1), the Secretary of State must consult the MMO before giving consent if the proposed transfer or grant is relevant to the exercise of functions within the MMO’s jurisdiction.

Where there is a transfer or grant under paragraph (2), references in this Order to the undertaker, except in paragraph (5), include references to the transferee or lessee.

Paragraph (1) does not apply to the exercise of any right under this Order compulsorily to acquire an interest in any land that is Crown land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.

The undertaker must, as soon as practicable after this Order is made, submit to the Secretary of State copies of the documents listed in Schedule 13 (documents to be certified) for certification that they are true copies of the documents referred to in this Order.

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.