The Keuper Underground Gas Storage Facility Order 2017

PART 1

PRELIMINARY

Citation and Commencement

1.  This Order may be cited as the Keuper Underground Gas Storage Facility Order 2017 and comes into force on the 5th April 2017.

Interpretation

2.—(1) Except where contrary provision is made in Schedule 9 (protective provisions), in this Order—

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

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1980 Act” means the Highways Act 1980(3);

“the 1990 Act” means the Town and Country Planning Act 1990(4);

“the 1991 Act” means the New Roads and Street Works Act 1991(5);

“the 2008 Act” means the Planning Act 2008(6);

“authorised development” means the nationally significant infrastructure project and associated development described in Schedule 1 (authorised development) and any other development authorised by this Order, which is development within the meaning set out in section 32 of the 2008 Act, and any works carried out pursuant to the requirements;

“the book of reference” means the book of reference revision and the book of reference and land plans clarifications and errata certified by the Secretary of State for the purposes of this Order;

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

“Canal & River Trust” means the Canal & River Trust whose address is Navigation Road, Northwich, Cheshire CW8 1BH;

“carriageway” has the same meaning as in the 1980 Act;

“CEMP” means the construction environmental management plan to be submitted and approved pursuant to requirement 3 of Schedule 2;

“Cheshire West and Chester Borough Council” means the Cheshire West and Chester Borough Council whose address is HQ, Nicolas Street, Chester, CH1 2NP;

“commence” means the carrying out of a material operation, as defined in section 155 of the 2008 Act, comprised in or carried out for the purposes of the authorised development and the words “commencement” and “commenced” are to be construed accordingly;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act(7);

“draft CEMP” means the document certified as the draft CEMP by the Secretary of State for the purposes of this Order;

“environmental statement” means the documents certified as the environmental statement and the environmental statement clarifications and errata by the Secretary of State for the purposes of this Order;

“gas” has the same meaning as natural gas in section 235 (interpretation) of the 2008 Act;

“Halton Borough Council” means the Halton Borough Council whose address is Municipal Buildings, Kingsway, Widnes, WA8 7QF;

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

“the land plans” means the plans certified as the land plans by the Secretary of State for the purposes of the Order;

“the landscaping plans” means the plans certified as the landscaping plans by the Secretary of State for the purposes of the Order;

“local highway authority” has the same meaning as in section 329(1) of the 1980 Act;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct or replace the authorised development, provided such works do not give rise to any materially new or materially different environmental effects to those identified in the environmental statement, or vary the authorised development as described in Schedule 1, and any derivative of “maintain” must be construed accordingly;

“main river” has the meaning in section 113(1) Water Resources Act 1991(8);

“Manchester Ship Canal Company Ltd” means the Manchester Ship Canal Limited (Company registration number 07438096) whose registered address is Maritime Centre, Port of Liverpool, Liverpool, Merseyside L21 1LA;

“National Grid Gas” means National Grid Gas plc (Company registration number 02006000) or any successor company performing the same functions;

“Order land” means the land described as plots 1.01 to 5.01 in the book of reference as shown on the land plans;

“Order limits” means the limits shown on the works plans within which the authorised development must be carried out;

“owner” in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(9);

“relevant planning authority” means Cheshire West and Chester Borough Council in relation to land within its administrative area and Halton Borough Council in relation to land within its administrative area and any successors to their functions as planning authority for the area in which the land to which the provisions of this Order apply, and “relevant planning authorities” means both of them severally;

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

“the routing plan” means the plan certified by the Secretary of State as the routing plan for the purposes of this Order;

“the seismic survey report” means the document certified as the seismic survey report by the Secretary of State for the purposes of this Order;

“statutory undertaker” means any person falling within section 127(8), of the 2008 Act and a public communications provider as defined in section 151(1) of the Communications Act 2003(10);

“the statutory undertakers’ apparatus plan” means the plan certified by the Secretary of State as the statutory undertakers’ apparatus plan 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” has the same meaning as in Part 3 of the 1991 Act;

“street works and access plan” means the plan certified as the street works and access plan by the Secretary of State for the purposes of this Order;

“the tribunal” means the Lands Chamber of the Upper Tribunal;

“undertaker” subject to article 7, means Keuper Gas Storage Limited (company registration number 08850140) whose registered office is at Runcorn Site HQ, South Parade, PO Box 9, Runcorn, Cheshire, WA7 4JE;

“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; and

“the works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order.

(2) All distances, directions and lengths referred to in this Order and in any document referred to in this Order are approximate and distances between points on a work comprised in the authorised development must be taken to be measured along that work.

PART 2

PRINCIPAL POWERS

Development consent for authorised development etc.

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

(2) In constructing the authorised development, the undertaker may deviate laterally from the lines or situations shown on the works plans within the limits of the deviation relating to that work shown on those plans.

Maintenance of authorised development

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

Authorisation of Use

5.—(1) Subject to the provisions of this Order and to the requirements the undertaker may operate and use the authorised development.

(2) Paragraph (1) does not relieve the undertaker of any requirement to obtain a permit or licence under any legislation that may be required from time to time to authorise the operation of an underground gas storage facility.

Benefit of Order

6.—(1) Subject to article 7 (consent to transfer benefit of Order), the provisions of this Order have effect solely for the benefit of the undertaker.

(2) Paragraph (1) does not apply where the consent granted by this Order is expressed to be for the benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

Consent to transfer benefit of Order

7.—(1) 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 (including any of the numbered works) and such related statutory rights as may be so agreed.

(2) Where an agreement has been made in accordance with paragraph (1), references in this Order to the undertaker, except in paragraph (3), 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) is subject to the same restrictions, liabilities and obligations (including development consent obligations within the meaning of section 106A of the 1990 Act) 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(11) (summary proceedings by persons aggrieved by statutory nuisances) 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) 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 sites) or a consent given under section 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974(12); 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 pursuant to requirement 5; 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 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 development.

Guarantees in respect of payment of compensation

9.—(1) The undertaker must not begin to exercise the powers in articles 10 to 31 of this Order in relation to any land unless it has first put in place either—

(a) a guarantee in respect of the liabilities of the undertaker to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land; or

(b) an alternative form of security for that purpose which has been approved by the Secretary of State.

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

PART 3

STREETS

Street works

10.—(1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 3 (streets subject to street works) as are within the Order limits and may–

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street;

(c) place apparatus in the street;

(d) maintain apparatus in the street or change its position;

(e) execute any works to provide or improve sight lines required by the highway authority; and

(f) execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c), (d) and (e);

(2) The powers conferred by paragraph (1) must not be exercised without the consent of the street authority but such consent must not be unreasonably withheld.

(3) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(4) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1).

(5) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Power to alter layout, etc., of streets

11.—(1) The undertaker may for the purposes of carrying out the authorised development within the Order limits alter the layout of or carry out works in the street specified in column (2) of Schedule 4 (streets subject to alteration of layout) in the manner specified in relation to that street in column (3).

(2) Without prejudice to the specific powers conferred by paragraph (1) and subject to paragraph (3), the undertaker may for the purposes of carrying out or maintenance of the authorised development alter the layout of any street within the Order limits and the layout of any street having a junction with such a street and, without limiting the scope of this paragraph, the undertaker may–

(a) increase the width of the carriageway of the street by reducing the width of the kerb, footpath, footway, cycle track or verge within the street;

(b) alter the level or increase the width of any kerb, footway, cycle track or verge; and

(c) reduce the width of the carriageway of the street.

(3) The powers conferred by paragraph (2) must not be exercised without the consent of the street authority but such consent must not be unreasonably withheld.

(4) Where it seeks the consent of the street authority under sub-paragraph (3) the undertaker must provide to the street authority such details of the proposed works as the street authority may reasonably require.

(5) The alteration of any street pursuant to this article must be completed to the reasonable satisfaction of the street authority.

Maintenance of altered streets

12.—(1) Where a street is altered or diverted under this Order, the altered or diverted part of the street, unless otherwise agreed with the street authority, will be maintained by and at the expense of the undertaker for a period of 12 months from completion and from the expiry of that period by and at the expense of the street authority.

(2) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(3) For the purposes of a defence under paragraph (2), the court may, in particular, have regard to the following matters–

(a) the character of the street and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a street of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the street;

(d) whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e) where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given that person proper instructions with regard to the maintenance of the street and that those instructions had been carried out.

Temporary prohibition or restriction of use of streets

13.—(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily alter, divert, prohibit the use of or restrict any street or any other right of way and may for any reasonable time—

(a) divert the traffic from the street or right of way; and

(b) subject to paragraph (3), prevent all persons from passing along the street or right of way.

(2) Without prejudice to paragraph (1), the undertaker may temporarily alter or divert the streets specified in columns (1) and (2) of Schedule 5 (streets and rights of way to be temporarily stopped up) to the extent specified, by reference to the numbers shown on the street works and access plan, and in column (3) of that Schedule.

(3) 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.

(4) The undertaker must restore to the reasonable satisfaction of the street authority any street that has been temporarily stopped up, altered or diverted under this article.

(5) The undertaker may not temporarily prohibit the use of, alter or divert–

(a) any street or right of way specified in paragraph (2) without first consulting the street authority; and

(b) any other street without the consent of the street authority which may attach reasonable conditions to any consent.

(6) The undertaker, during and for the purposes of carrying out the authorised development, may for any reasonable time temporarily prohibit the use of, alter or divert the section of the public right of way (being a restricted byway) shown between points 1 and 2 on the street works and access plan and specified in Schedule 5 (streets and rights of way to be temporarily stopped up).

(7) Without prejudice to paragraph (6), the undertaker may not temporarily alter or divert a public right of way without first consulting the local highway authority, whose consent may be subject to conditions and must not be unreasonably withheld.

(8) Any person who suffers loss by the suspension of any private right of way under this article will be entitled to compensation to be determined, in the case of dispute, under Part 1 of the 1961 Act.

Access to works

14.  The undertaker may, for the purposes of the authorised development–

(a) Form and lay out means of access, or improve existing means of access, in the locations specified in columns (1) and (2) of Schedule 6 (access to works); and

(b) With the approval of the relevant planning authority, after consultation with the highway authority, form and lay out such other 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.

Agreements with street authorities

15.—(1) A street authority and the undertaker may enter into agreements with respect to–

(a) the construction of any new street authorised by this Order;

(b) any stopping up, alteration or diversion of a street authorised by this Order; or

(c) the carrying out in the street of any of the works referred to in article 10(1) (street works).

(2) Such an agreement may without prejudice to the generality of paragraph (1)–

(a) make provision for the relevant authority to carry out any function under this Order which relates to the street in question;

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

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

PART 4

SUPPLEMENTAL POWERS

Discharge of water

16.—(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(13) (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.

(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 may 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 disturbance, oil or matter in suspension.

(7) This article does not authorise the discharge or entry into inland fresh waters or coastal waters of any matter whose entry or discharge into these waters is prohibited by regulation 38 (offences) of the Environmental Permitting (England and Wales) Regulations 2010(14).

(8) In this article–

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency or a harbour authority within the meaning of section 57 of the Harbours Act 1964(15) (interpretation), an internal drainage board, a joint planning board, a local authority, a sewerage undertaker or an urban development corporation; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(16) have the same meaning as in that Act.

Protective work to buildings

17.—(1) Subject to the following provisions of this article the undertaker may, at its own expense, carry out 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 completion of that part of the authorised development in the vicinity of the building at any time up to the decommissioning of the authorised development under paragraph 18 (decommissioning) of Schedule 2.

(3) For the purpose of determining how the functions 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.

(4) For the purpose of carrying out protective works under this article to a building 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 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 the 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), (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 40 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which the 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 10(2) of the 1965 Act (compensation for injurious affection).

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

(11) In this article “protective works” in relation to a building means–

(a) underpinning, strengthening, hoarding 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; and

(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.

Authority to survey and investigate the land

18.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order land or which may be affected by the authorised development and–

(a) survey and/or investigate the land;

(b) without prejudice to the generality of sub-paragraph (a) make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and/or subsoil and/or to remove soil samples;

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

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and/or investigation of land and/or the 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 written 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 or investigation or to make the trial holes.

(4) No trial holes are to 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.

Temporary closure of, and works in and over, the canal

19.—(1) The undertaker may, subject to Part 3 of Schedule 9 (protective provisions), for the purposes of the carrying out and maintenance of the authorised development temporarily close, prohibit the use of or restrict the use of, the part of the canal specified in columns (1) and (2) of Schedule 7 (temporary closure and works in the canal) for the purposes specified in column (3).

(2) Without prejudice to paragraph (1) but subject to paragraphs (3), (4) and (5) the undertaker may in connection with the carrying out or maintenance of the authorised development–

(a) temporarily close part of the canal and carry out works at any point within that relevant part of the canal as the undertaker considers necessary or expedient;

(b) temporarily moor or anchor barges or other vessels or craft in the relevant part of the canal and may load or unload into and from such barges, other vessels or craft equipment, machinery, soil and any other materials;

(c) temporarily suspend any right to moor in such manner and to such extent as may appear to the undertaker to be necessary or convenient; and

(d) on grounds of health and safety only, temporarily close to navigation the relevant part of the canal.

(3) During the period of any closure referred to in paragraph (2) all rights of navigation and other rights relating to and any obligations of the Canal & River Trust to manage the relevant part of the canal so closed are to be suspended and unenforceable against the Canal & River Trust.

(4) The power conferred by paragraph (1) must be exercised in such a way which secures—

(a) that no more of the relevant part of the canal is closed to navigation at any time than is necessary in the circumstances; and

(b) that, if complete closure to navigation of the relevant part of the canal becomes necessary all reasonable steps are taken to secure that the period of closure is kept to a minimum and that the minimum obstruction, delay or interference is caused to vessels or craft which may be using or intending to use the part so closed.

(5) In exercising the powers conferred by paragraph (1) in relation to the relevant part of the canal the undertaker must—

(a) take such reasonable steps as are necessary to ensure that the functioning of any intake or discharge along the canal is unaffected;

(b) keep any interference with water levels or flow to a minimum reasonably necessary to carry out the authorised development;

(c) take such reasonable steps as are necessary to ensure that persons in control of barges or other vessels or craft in the canal are made aware of any temporary closure, prohibition or restriction of use; and

(d) provide such emergency assistance as may reasonably be requested by persons in control of barges or other vessels or craft in the canal following an accident or mechanical failure, for the safety of persons on board and/or the recovery of the barge, vessel or craft to a location where it can be safely be moored and accessed.

(6) Any person who suffers loss or damage as a result of–

(a) the suspension of any private right of navigation or the suspension of any private right to use the towpath under this article; or

(b) any effect of the exercise of the powers conferred by paragraph (1) on the functioning of any intake or discharge along the canal,

is to be entitled to be paid compensation for such loss and damage by the undertaker to be determined, in the case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

PART 5

POWERS OF ACQUISITION

Compulsory acquisition of land

20.—(1) The undertaker may acquire compulsorily so much of the land described in the book of reference and shown on the land plans as is required for the authorised development or to facilitate it, or is incidental to it.

(2) This article is subject to article 23 (acquisition of subsoil only) and article 27 (temporary use of land carrying out the authorised development).

Time limit for exercise of authority to acquire land compulsorily

21.—(1) After the end of the period of 5 years beginning on the day on which this Order is made–

(a) no notice to treat is to be served under Part 1 of the 1965 Act (which makes provision for compulsory acquisition under the Acquisition of Land Act 1981); and

(b) no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981(17) as applied by article 26 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) of this Order.

(2) The authority conferred by article 27 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), save that nothing in this paragraph will prevent the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights

22.—(1) The undertaker may acquire compulsorily the new rights described in the book of reference and shown on the land plans.

(2) As from the date on which a compulsory acquisition notice is served or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, the land over which any new rights is acquired will be discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that new right.

(3) Subject to section 8 of the 1965 Act, as substituted by article 24 (acquisition of part of certain properties) of this Order, where the undertaker acquires an existing right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

(4) 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 (determination of questions of disputed compensation) of the 1961 Act.

Acquisition of subsoil only

23.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in paragraph (1) of article 20 (compulsory acquisition of land) 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.

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

(3) 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.

Acquisition of part of certain properties

24.—(1) This article applies instead of section 8(1) of the 1965 Act (other provisions as to divided land) (as applied by section 125 of the 2008 Act) where–

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) 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 which states that the owner is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner is to be required to sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner is to be required to 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.

(5) If on such a reference the tribunal determines that the land subject to the notice to treat can be taken–

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must be required to sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determines that only part of the land subject to the notice to treat can be taken–

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land is subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat is to be deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determines that–

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is to be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the addition land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determines that–

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is to be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) 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, 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.

(10) 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.

Statutory authority to override easements and other rights

25.—(1) The carrying out or use of the authorised development and the doing of anything else authorised by this Order is authorised for the purpose specified in section 158(2) of the 2008 Act (nuisance: statutory authority), notwithstanding that it involves–

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) The undertaker must pay compensation to any person whose land is injuriously affected by–

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to use of land arising by virtue of contract authorised by virtue of this Order and the operation of section 158 of the 2008 Act.

(3) The interest and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(4) Subsection (2) of section 10 of the 1965 Act (further provision as to compensation for injurious affection) applies to paragraph (2) by virtue of section 152(5) of the 2008 Act (compensation in case where no right to claim in nuisance).

(5) Any rule or principle applied to the construction of section 10 of the 1965 Act must be applied to the construction of paragraph (2) (with any necessary modification).

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

26.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(18) applies as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as so applied, has effect with the following modifications.

(3) In section 5 (earliest date for execution of declaration)–

(a) in subsection (1), after “publication” there is to be inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) is omitted.

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

(5) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations Act) 1981 are to be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order.

Temporary use of land for carrying out the authorised development

27.—(1) The undertaker may, in connection with the carrying out of the authorised development–

(a) enter on and take temporary possession of the land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule;

(b) remove any buildings and vegetation from that land; and

(c) construct temporary works (including the provision of means of access) and buildings on that land.

(2) Not less than 14 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.

(3) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land of which temporary possession has been taken under this article after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (4) of Schedule 8 (land of which temporary possession may be taken) unless and to the extent that it is authorised to do so by the acquisition of rights over land or creation of new rights over land pursuant to article 21 (compulsory acquisition of rights) of this Order.

(4) Before giving up possession of land of which temporary possession has been 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; but the undertaker is not required to replace a building removed under this article.

(5) 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 provisions of any power conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(7) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1) except that the undertaker is not precluded from–

(a) acquiring new rights over any part of that land under article 22 (compulsory acquisition of rights); or

(b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 23 (acquisition of subsoil only).

(9) Where the undertaker takes possession of land under this article, the undertaker must not be required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act(19) (refusal to give possession to acquiring authority) 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 (application of compulsory acquisition provisions).

(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 8.

Temporary use of land for maintaining the authorised development

28.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may–

(a) enter on and take temporary possession of any land within the Order land if such possession is reasonably required for the purpose of maintaining the authorised development; and

(b) construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of–

(a) any house or garden belonging to a house; or

(b) any building (other than a house) if it is for the time being occupied.

(3) 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.

(4) The undertaker may remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(5) Before giving up possession of land of which temporary possession has been 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.

(6) 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 provision of this article.

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

(8) 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 maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (6).

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

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) 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 (application of compulsory acquisition provision).

(11) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 50 years beginning with the date on which that part of the authorised development is first opened for the use of the underground gas storage.

Statutory undertakers

29.  The undertaker may, subject to Schedule 9 (protective provisions) within the Order limits–

(a) extinguish the rights of statutory undertakers shown on the land plans and described in the book of reference; and

(b) replace, reposition, renew, alter and supplement the apparatus belonging to statutory undertakers as shown on the statutory undertakers’ apparatus plan.

Private rights

30.—(1) Subject to the provisions of this article, all private rights of way over land subject to compulsory acquisition under this Order are extinguished–

(a) as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act(20) (power of entry),

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being within the Order land, is required for the purposes of this Order will be extinguished on the appropriation of the land by the undertaker for any of those purposes.

(3) Subject to the provisions of this article, all private rights of way over land of which the undertaker takes temporary possession under this Order will be suspended and unenforceable for as long as the undertaker remains in lawful possession of the land and so far as their continuance would be inconsistent with the exercise of the temporary possession of that land.

(4) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is to be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(5) This article does not apply in relation to any right to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 29 (statutory undertakers) applies.

(6) Paragraphs (1) to (3) are to have effect subject to–

(a) any notice given by the undertaker before–

(i) the completion of the acquisition of the land,

(ii) the undertaker’s appropriation of it,

(iii) the undertaker’s entry onto it, or

(iv) the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right of way specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right of way in question is vested or belongs.

(7) If any such agreement as is referred to in paragraph (6)(b)–

(a) is made with a person in or to whom the right of way is vested or belongs; and

(b) is expressed to have effect also for the benefit of those deriving title from or under that person,

it will be effective in respect of the persons so deriving title, whether the title was derived before or after making the agreement.

Rights under or over streets

31.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or air-space for those purposes or any other purpose ancillary to the authorised development.

(2) 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.

(3) Paragraph (2) does not apply in relation to–

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing of cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

PART 6

MISCELLANEOUS AND GENERAL

Operational land for the purposes of the 1990 Act

32.  Development consent granted by this Order 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 not being operational land).

Felling or lopping of trees or shrubs

33.—(1) Save for trees planted in accordance with requirement 6 in Schedule 2 (requirements), the undertaker may, pursuant to the requirements in Schedule 2, fell or lop any tree or shrub 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 or shrub–

(a) from obstructing or interfering with the construction or maintenance 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 do no unnecessary damage to any tree or shrub 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, is to be determined under Part 1 of the 1961 Act (determination of questions of disputed compensation).

Protective provisions

34.  Schedule 9 (protective provisions) to this Order has effect.

Certification of plans etc.

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

(a) the book of reference (document ref: 4.3);

(b) the book of reference and land plans clarifications and errata (document ref:10.14);

(c) the Order limits drawing nos: 13-03-01/HOL/24/100-107/B1;

(d) the land plans drawing nos: 13-03-01/HOL/24/610-617/B1;

(e) the works plans drawing nos: 13-03-01/HOL/24/500-506/B1, 13-03-01/HOL/24/509/B1, 13-03-01/HOL/24/510/B2, 13-03-01/HOL/24/511/B1, 13-03-01/HOL/24/512/B2 and 13-03-01/HOL/24/513-514/B1;

(f) the street works and access plan drawing no.:13-03-01/HOL/24/413/B1;

(g) the environmental statement (document refs: 6.1-6.3);

(h) the environmental statement clarifications and errata (document ref: 10.13);

(i) the elevation drawing nos::

(i) 13-03-01/HOL/24/236/B1;

(ii) 13-03-01/HOL/24/270/B4, 13-03-01/HOL/24/271/B2, 13-03-01/HOL/24/272/B1, 13-03-01/HOL/24//273/B2 and 13-03-01/HOL/24/274/B1; and

(iii) 13-03-01/HOL/24/278/B1;

(j) the seismic survey report (document ref: 9.1);

(k) the sub-surface safety assessment report (document ref: 9.2);

(l) the preliminary study of gas design capacity (document ref: 9.3);

(m) the landscaping plans drawing nos: 13-03-01/HOL/24/240-264/B1 and 13-03-01/HOL/24/266-268/B1;

(n) the statutory undertakers’ apparatus plan drawing no: 13-03-01/HOL/24/346/B1;

(o) the routing plan drawing no: 13-03-01/HOL/24/405/B1; and

(p) the draft CEMP and annexes 1 - 4 (document ref 6.5 rev4, August 2016),

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

(2) A plan or document so certified under paragraph (1) is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Application of the Hedgerows Regulations 1997

36.  Regulation 6 of the Hedgerows Regulations 1997(21) is to be modified so as to read for the purposes of this Order only as if there were inserted after paragraph (1)(j) the following–

“(k) Or for carrying out development which has been authorised by a development consent pursuant to the Planning Act 2008”.

Procedure in relation to certain approvals etc.

37.  Where an application is made to or request is made of the relevant planning authority, a highway authority, a street authority, or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any of the provisions of this Order such consent, agreement or approval to be validly given, must be given in writing and must not be unreasonably withheld or delayed.

Appeals relating to decisions under requirements

38.—(1) Where the relevant planning authority–

(a) refuses an application for any consent, agreement or approval of that authority required by a requirement listed in Schedule 2 (requirements) to this Order or grants that consent, agreement or approval subject to conditions; or

(b) does not give notice to the undertaker of its decision on an application for any consent, agreement or approval of that authority required by a requirement listed in Schedule 2 (requirements) of this Order within 16 weeks beginning with the day immediately following that on which the application is received by that authority or within such shortened or extended period as may at any time be agreed upon in writing between the undertaker and that authority,

Article 40 (arbitration) does not apply but the undertaker may by notice appeal to the Secretary of State.

(2) Any appeal to the Secretary of State under paragraph (1) must be made under Part III (control over development) of the 1990 Act as if the requirement in Schedule 2 (requirements) of this Order which is the subject of the appeal were a condition under subsection 78(1)(b) of the 1990 Act.

(3) 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 7 of the Gas Act 1986(22).

Application of landlord and tenant law.

39.—(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 is to prejudice the operation of any agreement to which this article applies.

(3) Accordingly, no such enactment or rule of law applies 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.

Arbitration

40.  Without prejudice to article 38 (appeals relating to decisions under requirements), any difference or dispute 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) by the President of the Institution of Civil Engineers.

Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy

Giles Scott

Head of Energy Infrastructure Planning and Coal Liabilities

Department of Business, Energy and Industrial Strategy

15th March 2017