37. The marine licences set out in Schedules 10 and 11 are deemed to have been issued under Part 4 of the 2009 Act (marine licensing) for the licensed activities set out in Part 1, and subject to the conditions set out in Part 2, of each licence.
38.—(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;
(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; and
(c)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 prejudices the operation of any agreement to which this article applies.
(3) No enactment or rule of law to which paragraph (2) applies is to apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—
(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;
(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or
(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.
39. Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as not being operational land) of the 1990 Act.
40.—(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990(1) in relation to a nuisance falling within section 79(1) (statutory nuisances and inspections therefor.) of that Act no order is to be made, and no fine may be imposed, under section 82(2) (summary proceedings by persons aggrieved by statutory nuisances) of that Act if the defendant shows that the nuisance—
(a)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(2); or
(b)is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
(c)is a consequence of the use of the authorised development and that it cannot reasonably be avoided.
(2) Section 61(9) 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.
41. Schedule 12 (protective provisions) has effect.
42. Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.
43.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any lessee or licensee to take, use, enter upon or in any manner interfere with any land or rights of any description (including any portion of the shore or bed of the sea or any river, channel, creek, bay or estuary)—
(a)belonging to His Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;
(b)belonging to His Majesty in right of the Crown and not forming part of The Crown Estate without the consent in writing of the government department having the management of that land; or
(c)belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.
(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.
(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions and is deemed to have been given in writing where it is sent electronically.
44.—(1) Where an application is made to, or a request is made of, a consenting authority for any consent, agreement or approval required or contemplated by any of the provisions of the Order (not including the Requirements), such consent, agreement or approval to be validly given, must be given in writing.
(2) Where paragraph (1) applies to any consent, agreement or approval, such consent, agreement or approval must not be unreasonably withheld or delayed.
(3) Schedule 13 (procedure for discharge of Requirements) has effect in relation to all consents, agreements or approvals required, granted, refused or withheld in relation to the Requirements.
(4) Save for applications made pursuant to Schedule 13 (procedure for discharge of Requirements) or where stated to the contrary if, within six weeks (or such longer period as may be agreed between the undertaker and the relevant consenting authority in writing) after the application or request has been submitted to a consenting authority it has not notified the undertaker of its disapproval and the grounds of disapproval, it is deemed to have approved the application or request.
(5) Where any application is made as described in paragraph (1), the undertaker must include a statement in such application that refers to the timeframe for consideration of the application and the consequences of failure to meet that timeframe as prescribed by paragraph (4).
45.—(1) The undertaker, as soon as practicable after the making of this Order, must submit to the Secretary of State copies of all documents and plans listed in Table 13 in Schedule 14 (documents and plans to be certified) to this Order for certification that they are true copies of the documents referred to in this Order.
(2) Where the amendment of any plan or document referred to in paragraph (1) is required to reflect the terms of the Secretary of State’s decision to make this Order, that plan or document, in the form amended to the Secretary of State’s satisfaction, is the version of the plan or document to be certified under paragraph (1).
(3) 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.
46.—(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)subject to article 3 by electronic transmission.
(2) If an electronic communication is received outside the recipient’s business hours, it is to be taken to have been received on the next working day.
(3) 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.
(4) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(3) 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.
(5) 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.
(6) This article does not exclude the employment of any method of service not expressly provided for by it.
47.—(1) Subject to article 42 (saving for Trinity House), 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) by the Secretary of State.
(2) Any matter for which the consent or approval of the Secretary of State or the MMO is required under any provision of this Order is not subject to arbitration under this article.
48.—(1) The undertaker must not exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any Order land unless it has first put in place, following approval by the Secretary of State, either—
(a)a guarantee (and the amount of that guarantee) in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2) in respect of the exercise of the relevant power in relation to that land; or
(b)an alternative form of security (and the amount of that security) in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2).
(2) The provisions are—
(a)article 22 (compulsory acquisition of land);
(b)article 25 (compulsory acquisition of rights etc.);
(c)article 26 (private rights);
(d)article 28 (acquisition of subsoil or airspace only);
(e)article 30 (rights under or over streets);
(f)article 31 (temporary use of land for carrying out the authorised development);
(g)article 32 (temporary use of land for maintaining the authorised development); and
(h)article 33 (statutory undertakers).
(3) A guarantee or alternative form of security given in respect of the liabilities of the undertaker to pay compensation pursuant to the provisions referred to in paragraph (2) is to be treated as enforceable against the guarantor or person providing the alternative form of security 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.
(4) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.
1990 c. 43. Section 82 was amended by section 103 of the Clean Neighbourhoods and Environment Act 2005 (c. 16); Section 79 was amended by sections 101 and 102 of the same Act.
1974 c. 40. Section 60 was amended by section 7(3)(a)(4)(g) of the Public Health (Control of Disease) Act 1984 (c. 22) and section 112(1)(3), paragraphs 33 and 35(1) of Schedule 17, and paragraph 1(1)(xxvii) of Schedule 16 to the Electricity Act 1989 (c. 29); Section 61 was amended by section 133(2) and Schedule 7 to the Building Act 1984 (c. 55), paragraph 1 of Schedule 24 to the Environment Act 1995 (c. 25), and section 162(1) of and paragraph 15(3) of Schedule 15 to the Environmental Protection Act 1990 (c. 43).
1978 c. 30. Section 7 was amended by section 144 and paragraph 19 of Schedule 10 to the Road Traffic Regulation Act 1984 (c. 27). There are other amendments not relevant to this Order.