3. After paragraph 21 of Schedule 7 insert new Part 2—
22. The following provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing between the undertaker and Millbrook Power.
23. In this part of this Schedule—
“the Millbrook access road land” means the land shown as plots 4_PGP, 5_PGP, 5A_PGP, 6 _PGP and 7_PGP on the land plans and described in the book of reference as certified by the Secretary of State pursuant to the Millbrook Order;
“the Millbrook Order” means the Millbrook Gas Fired Generating Station Order 2019;
“the Millbrook Order land” has the same meaning as the term “Order land” in Article 2(1) of the Millbrook Order but excluding the Millbrook access road land;
“Millbrook Power” means Millbrook Power Limited, (Company No. 08920458) whose registered office is at Drax Power Station, Drax, Selby, North Yorkshire YO58 8PH or any person having the benefit of the Millbrook Order pursuant to Article 6 and/or 7 thereof;
“the Order” means this Order; and
“the respective authorised developments” means the developments authorised by the Order and the Millbrook Order respectively.
24.—(1) If as a consequence of the powers granted under this Order access (with or without vehicles plant and machinery) to the Millbrook Order land is obstructed the undertaker shall provide such alternative means of access to the Millbrook Order land as will enable Millbrook Power to construct, use and maintain the development authorised by the Millbrook Order no less effectively than was possible before such obstruction.
(2) Subject to Millbrook Power complying with paragraph 58 of Part 6 of Schedule 10 to the Millbrook Order the undertaker shall not exercise the powers granted under this Order so as to hinder or prevent the construction, use or maintenance of numbered work 2 as authorised by the Millbrook Order without the prior written consent of Millbrook Power.
(3) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of Millbrook Power, that approval or consent shall be in writing (and subject to such reasonable terms and conditions as Millbrook Power may require), but shall not be unreasonably withheld.
(4) In the event that Millbrook Power does not respond in writing to a request for approval or consent within 28 days of receipt of such a request, Millbrook Power is deemed to have given its consent (without any terms or conditions).
25.—(1) The undertaker shall not exercise the powers under any of the articles of the Order specified in sub-paragraph (2) over or in respect of the Millbrook Order land otherwise than with the prior written consent of Millbrook Power.
(2) The articles referred to in sub-paragraph (1) are—
(a)Article 10 (street works);
(b)Article 11 (public rights of way);
(c)Article 12 (temporary stopping up of streets);
(d)Article 13 (access to works);
(e)Article 15 (discharge of water);
(f)Article 16 (authority to survey and investigate land);
(g)Article 17 (compulsory acquisition of land);
(h)Article 18 (power to override easements and other rights);
(i)Article 26 (temporary use of land for maintaining authorised development);
(n)Article 27 (statutory undertakers); and
(o)Article 31 (felling or lopping of trees).
(3) In the event that Millbrook Power withholds its consent pursuant to sub-paragraph (1) it shall notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.
26. Insofar as the construction of the respective authorised developments is or may be undertaken concurrently, the undertaker shall—
(a)co-operate with Millbrook Power with a view to ensuring—
(i)the co-ordination of construction programming and the carrying out of works; and
(ii)that access for the purposes of constructing the respective authorised developments is maintained for the undertaker and Millbrook Power and their respective contractors.
(b)use reasonable endeavours to avoid any conflict arising between the carrying out of the respective authorised developments.
27. Insofar as the construction of the authorised development gives rise to the need to modify any scheme secured by a requirement contained in Schedule 2 to the Millbrook Order, the undertaker shall provide such assistance as is reasonably necessary to support Millbrook Power in pursuing any such modification.
28. Insofar as compliance with paragraph 25(1) of this Part prevents the undertaker from complying with any requirement contained in Part 2 of Schedule 1 to the Order, the undertaker shall not be in breach of such requirement for the time period specified in paragraph 25(3).
29. In the event that paragraph 28 applies, the undertaker shall provide the relevant planning authority with a copy of the reasons given by Millbrook Power for refusing consent and the time period pursuant to paragraph 25(3).
30. It shall be a defence for any person charged with an offence pursuant to section 161 of the Planning Act 2008 (breach of terms of order granting development consent) to prove that they were not able to comply with a requirement contained in Part 2 of Schedule 1 to the Order due to the effect of paragraph 25 of this Part.
31.—(1) Any difference or dispute arising between the undertaker and Millbrook Power under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Millbrook Power, be referred to and settled in arbitration, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.
(2) Article 34 (arbitration) shall not apply to any difference or dispute under any provision of this Part of this Schedule.”
Commencement Information
I1Sch. 11 para. 3 in force at 3.4.2019, see art. 1