3.—(1) Subject to the provisions of this Order including the requirements—
(a)SEL is granted development consent for the Sheringham Shoal Extension Project and related ancillary works;
(b)DEL is granted development consent for the Dudgeon Extension Project and related ancillary works; and
(c)SEL and DEL are granted development consent for the integrated works;
to be carried out within the Order limits.
(2) Unless otherwise stated in Schedule 2, the requirements apply to scenario 1, scenario 2, scenario 3 and scenario 4.
4.—(1) The undertaker may at any time maintain the authorised project except to the extent that this Order or any agreement made under this Order provides otherwise.
(2) Paragraph (1) does not relieve the undertaker of any requirement to obtain any further licence under Part 4 (marine licensing) of the 2009 Act for licensable activities not covered by the deemed marine licences.
5.—(1) Subject to this article, the provisions of this Order have effect solely for the benefit of the undertaker.
(2) Subject to paragraphs (6), (7) and (8) the undertaker may with the written 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 (excluding the deemed marine licences referred to in paragraph (3) below) and such related statutory rights as may be agreed between the undertaker and the transferee; and
(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 the Order (excluding the deemed marine licences referred to in paragraph (3) below) and such related statutory rights as may be so agreed.
except where paragraph (8) applies, in which case no consent of the Secretary of State is required.
(3) Subject to paragraph (6), the undertaker may with the written consent of the Secretary of State and where an agreement has been made in accordance with paragraph (2)(a), transfer to the transferee the whole of any deemed marine licences and such related statutory rights as may be agreed between the undertaker and the transferee, except where paragraph (8) applies, in which case no consent of the Secretary of State is required.
(4) Where an agreement has been made in accordance with paragraph (2) or (3) references in this Order to the undertaker, except in paragraphs (7) and (13), shall include references to the transferee or lessee.
(5) The undertaker must consult the Secretary of State before making an application for consent under this article by giving notice in writing of the proposed application.
(6) The Secretary of State must consult the MMO before giving consent to the transfer of the benefit of the whole of any deemed marine licences under paragraph (3).
(7) Where the undertaker has transferred any benefit under paragraph (2) or (3), or for the duration of any period during which the undertaker has granted any benefit, under paragraph (2)—
(a)the benefit transferred or granted (“the transferred benefit”) shall include any rights that are conferred, and any obligations that are imposed, by virtue of the provisions to which the benefit relates;
(b)the transferred benefit shall reside exclusively with the transferee or, as the case may be, the lessee and the transferred benefit shall not be enforceable against the undertaker save in the case of a deemed marine licence transferred or granted in respect of any breach of an obligation by the undertaker which occurs prior to such transfer or grant or which occurs as a result of any activity carried out by the undertaker on behalf of the transferee; and
(c)the exercise by a person of any benefits or rights conferred in accordance with any transfer under paragraph (2) or (3) or grant under paragraph (2) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.
(8) The consent of the Secretary of State is required for the exercise of powers under paragraph (2) or (3) except where—
(a)the transferee or lessee is the holder of a licence under section 6 of the 1989 Act; or
(b)the time limits for claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—
(i)no such claims have been made;
(ii)any such claim has been made and has been compromised or withdrawn;
(iii)compensation has been paid in final settlement of any such claim;
(iv)payment of compensation into court has taken place in lieu of settlement of any such claim; or
(v)it has been determined by a tribunal or court of competent jurisdiction in respect of any such claim that no compensation shall be payable; or
(vi)the transferee or lessee is National Highways for the purposes of undertaking any works to install ducts under the strategic road network as set out in Work Nos. 12A, 12B or 12C.
(9) Prior to any transfer or grant under this article taking effect the undertaker must give notice in writing to the Secretary of State, and if such transfer or grant relates to the exercise of powers in their area, to the MMO and the relevant planning authority.
(10) A notice required under paragraphs (5) and (9) must—
(a)state—
(i)the name and contact details of the person to whom the benefit of the provisions will be transferred or granted;
(ii)subject to paragraph (11), the date on which the transfer will take effect;
(iii)the provisions to be transferred or granted;
(iv)the restrictions, liabilities and obligations that, in accordance with paragraph (7)(c), will apply to the person exercising the powers transferred or granted; and
(v)where paragraph (8) does not apply, confirmation of the availability and adequacy of funds for compensation associated with the compulsory acquisition of the Order land;
(b)be accompanied by—
(i)where relevant, a plan showing the works or areas to which the transfer or grant relates; and
(ii)a copy of the document effecting the transfer or grant signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted.
(11) The date specified under paragraph (10)(a)(ii) in respect of a notice served in respect of paragraph (9) must not be earlier than the expiry of fourteen days from the date of the receipt of the notice.
(12) The notice given under paragraph (9) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice.
(13) The provisions of articles 8 (street works), 10 (temporary closure of streets), 17 (compulsory acquisition of land), 19 (compulsory acquisition of rights), 25 (temporary use of land for carrying out the authorised project) and 26 (temporary use of land for maintaining the authorised project) shall have effect only for the benefit of the undertaker and a person who is a transferee or lessee who is also—
(a)in respect of Work Nos. 8A to 22A, 8B to 22B, 8C to 9C, 12C and 15C to 17C, a person who holds a licence under the 1989 Act; or
(b)in respect of functions under article 8 relating to streets, a street authority.
(14) Section 72(7) and (8) of the 2009 Act (variation, suspension, revocation and transfer) do not apply to a transfer of grant of the benefit of the provisions of any deemed marine licences to another person by the undertaker pursuant to an agreement under this article.
6.—(1) The following provisions do not apply in relation to the construction of works carried out for the purpose of, or in connection with, the construction or maintenance of the authorised project—
(a)the 2016 Regulations, to the extent that they require a permit for anything that would have required consent made under section 109 of the Water Resources Act 1991(1) immediately before the repeal of that section or for any activities defined under the 2016 Regulations as flood risk activities;
(b)Section 23 (prohibition of obstructions etc. in watercourses)(2) of the Land Drainage Act 1991;
(c)the provisions of any byelaws made under, or having effect as if made under, paragraph 5, 6 or 6A of Schedule 25 to the Water Resources Act 1991 (byelaw-making powers of the Appropriate Agency) that require consent or approval for the carrying out of the works;
(d)the provisions of any byelaws made under, or having effect as if made under, section 66 (powers to make byelaws) of the Land Drainage Act 1991 that require consent or approval for the carrying out of the works; and
(e)the provisions of the Neighbourhood Planning Act 2017(3) in so far as they relate to the temporary possession of land under articles 25 (temporary use of land for carrying out the authorised project) and 26 (temporary use of land for maintaining the authorised project) under this Order.
(2) For the purpose of carrying out development authorised by this Order only, regulation 6(1) (permitted work)(4) of the Hedgerows Regulations 1997 (permitted work) is deemed to be amended by inserting the following sub-paragraph after sub-paragraph (1)(j)—
“or
(k)for carrying out development which has been authorised by an order granting development consent pursuant to section 114 of the Planning Act 2008.”.
(3) In the event that any compliance with the provision of—
(a)this Order means that the A47 Tuddenham Scheme will be carried out in breach of the terms of the A47 Tuddenham Order or that National Highways cannot comply with the terms of the A47 Tuddenham Order; or
(b)the A47 Tuddenham Order means that the authorised development will be carried out in breach of the terms of this Order or that the undertaker cannot comply with the terms of this Order;
section 161(1) of the 2008 Act shall not apply to that breach.
7.—(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances)(5) of the Environmental Protection Act 1990 in relation to a nuisance falling within paragraph (g) of section 79(1)(6) of that Act (statutory nuisances and inspections therefor) 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 project and is attributable to the carrying out of the authorised project 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(7); or
(ii)is a consequence of the construction or maintenance of the authorised project and cannot reasonably be avoided;
(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 project and is attributable to the use of the authorised project being used in compliance with requirement 21 (control of noise during operational phase); or
(ii)is a consequence of the use of the authorised project and 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 project.
1991 c. 59. Section 109 has been repealed.
S.I. 1997/1160. Regulation 6 was amended by paragraph 35 of Schedule 1 to S.I. 2015/377.
1990 c. 43. Section 82 was amended by sections 101 and 102 of the Clean Neighbourhoods and Environment Act 2005 (c. 16).
Section 79 was amended by paragraph 89 of Schedule 22 to Environment Act 1995 (c. 25).
1974 c. 40. Section 61 was amended by Schedule 7 to the Building Act 1984 (c. 55), paragraph 15 of Schedule 15 to the Environmental Protection Act 1990 (c. 43) and Schedule 24 to the Environment Act 1995.