Article 5
1. In this Schedule—
“approving authority” means the Secretary of State or, as the case may be, the local highway authority;
“begin” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised development;
“commence” in relation to any part of the authorised development referred to in the provisions of this Schedule means beginning to carry out any material operation (as defined in section 56(4) of the 1990 Act) in respect of that part of the authorised development other than operations consisting of pre-commencement works, and “commencement” is to be construed accordingly;
“contaminated land” has the same meaning as that given in section 78A(2)(1) (preliminary) of the Environmental Protection Act 1990;
“County Archaeologist” means the individual appointed as such by the relevant planning authority;
“design principles” means the document of that description listed in Schedule 12 (documents to be certified) certified by the Secretary of State as the design principles for the purposes of this Order;
“DMRB” means the Design Manual for Roads and Bridges, which accommodates all current standards, advice and other documents relating to the design, assessment and operation of trunk roads and motorways, or any equivalent replacement to the DMRB published;
“Ecological Clerk of Works” means the individual appointed as such by the undertaker;
“European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017(2);
“First Iteration EMP” means the document of that description listed in Schedule 10 (documents to be certified), being the first iteration of the environmental management plan produced in accordance with the DMRB during the preliminary design stage and certified by the Secretary of State as the First Iteration Environmental Management Plan for the purposes of this Order, which includes an outline plan for the following—
archaeological management plan;
construction compound management plan;
contaminated land management plan;
dust management plan;
emergency procedures and record of any environmental incidents;
energy and resource use management plan;
haul road management plan;
invasive species management plan;
landscape and ecology management plan;
materials management plan;
noise and vibration management plan;
site waste management plan;
soil handling management plan; and
water management plan;
“outline construction traffic management plan” means the document of that description listed in Schedule 12 certified by the Secretary of State as the outline construction traffic management plan for the purposes of this Order;
“pre-commencement plan” means the document of that description listed in Schedule 12 and certified by the Secretary of State as the pre-commencement plan for the purposes of this Order;
“pre-commencement works” means—
archaeological investigations and mitigation works;
ecological surveys and mitigation works;
investigations for the purpose of assessing ground conditions;
remedial work in respect of any contamination or other adverse ground conditions;
erection of any temporary means of enclosure;
receipt and erection of construction plant and equipment;
treatment and removal of any invasive species;
construction compound establishment works;
site clearance works;
temporary haul roads, temporary hard standing and temporary access works;
installation of temporary drainage;
engineering surveys; and
temporary display of site notices or advertisements.
“protected species” means species which are subject to protection under the laws of England or which are European protected species;
“Second Iteration EMP” means the second iteration of the environmental management plan produced in accordance with the DMRB containing detailed plans relating to the construction phase of the authorised development substantially in accordance with the First Iteration EMP;
“Third Iteration EMP” means the third iteration of the environmental management plan produced in accordance with the DMRB containing detailed plans relating to the operational and maintenance phase of the authorised development substantially in accordance with the First Iteration EMP; and
“Traffic Signs Manual” means the Traffic Signs Manual published by the Department for Transport, which contains guidance to traffic authorities on the use of traffic signs and road markings on the highway network, or any equivalent replacement to be published.
2. The authorised development must not begin later than the expiration of 5 years beginning with the date on which this Order comes into force.
3.—(1) No part of the authorised development is to commence until the Second Iteration EMP for that part has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority and the Environment Agency on matters related to its functions.
(2) The authorised development must be constructed in accordance with the Second Iteration EMP.
4.—(1) Following completion of construction of the authorised development the Third Iteration EMP must be submitted to the Secretary of State for approval in writing, following consultation with the relevant planning authority and the Environment Agency on matters related to its functions.
(2) The authorised development must be operated and maintained in accordance with the Third Iteration EMP as so approved.
5.—(1) No part of the authorised development is to commence until a landscaping scheme for that part has been submitted to and approved in writing by the Secretary of State following consultation with the relevant planning authority on matters related to its functions.
(2) The landscaping scheme for each part must reflect the applicable mitigation measures set out in the First Iteration EMP and the landscaping principles set out in the environmental masterplan.
(3) The authorised development must be landscaped in accordance with the approved landscaping scheme for that part.
(4) A landscaping scheme prepared under sub-paragraph (1) must include details of landscaping works, including—
(a)location, number, species, mix, size and planting density of any proposed planting;
(b)cultivation, importing of materials and other operations to ensure plant establishment;
(c)proposed finished ground levels;
(d)existing trees to be retained, with measures for their protection during the construction period; and
(e)implementation timetables for all landscaping works.
(5) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.
(6) Any tree or shrub planted as part of the landscaping scheme that, within a period of 5 years after planting, is removed, dies or becomes, in the opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless the Secretary of State, following consultation with the relevant planning authority, gives consent to a variation.
6.—(1) In the event that contaminated land, including groundwater, is found at any time when carrying out the authorised development, which was not previously identified in the environmental statement, it must be reported as soon as reasonably practicable to the Secretary of State, the Environment Agency and the relevant planning authority, and the undertaker must complete a risk assessment of the contamination in consultation with the relevant planning authority and the Environment Agency on matters related to their functions.
(2) Where the risk assessment prepared in accordance with sub-paragraph (1) determines that remediation of the contaminated land is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose and to prevent any impacts on controlled waters must be submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority and the Environment Agency on matters related to their functions.
(3) Remediation must be carried out in accordance with the approved scheme.
7.—(1) No part of the authorised development is to commence until for that part a written scheme of investigation for the investigation and mitigation of areas of archaeological interest, reflecting the mitigation measures included in chapter 7 of the environmental statement and the archaeological mitigation strategy, has been prepared in consultation with the relevant planning authority, agreed with the County Archaeologist and submitted to and approved in writing by the Secretary of State.
(2) The authorised development must be carried out in accordance with the archaeological mitigation strategy and written scheme of investigation referred to in sub-paragraph (1) unless otherwise agreed in writing by the Secretary of State.
(3) A programme of archaeological reporting, post excavation and publication required as part of the archaeological mitigation strategy and written scheme of investigation referred to in sub-paragraph (1) must be agreed with the County Archaeologist and implemented within a timescale agreed with the County Archaeologist and deposited with the Historic Environment Record of the relevant planning authority within two years of the date of completion of the authorised development or such other period as may be agreed in writing by the relevant planning authority.
(4) Any archaeological remains not previously identified which are revealed when carrying out the authorised development must be subject to appropriate mitigation as set out in the archaeological mitigation strategy and agreed with the County Archaeologist.
(5) No construction operations are to take place within 10 metres of the remains referred to in sub-paragraph (4) for a period of 14 days from the date they are identified unless otherwise agreed in writing by the Secretary of State.
8.—(1) In the event that any protected species which were not previously identified in the environmental statement or nesting birds are found at any time when carrying out the authorised development the undertaker must—
(a)cease the relevant parts of the relevant works and report it immediately to the Ecological Clerk of Works; and
(b)prepare a written scheme for the protection and mitigation measures of such protected species or nesting birds when carrying out the authorised development.
(2) The undertaker must implement the written scheme prepared under sub-paragraph (1)(b) immediately and construction in the area specified in the written scheme must not recommence until any necessary licences are obtained to enable mitigation measures to be implemented.
9.—(1) No part of the authorised development is to commence until for that part a traffic management plan for the construction of the authorised development, substantially in accordance with the outline construction traffic management plan, has been submitted to and approved in writing by the Secretary of State following consultation with the relevant local highway authority.
(2) The authorised development must be constructed in accordance with the approved traffic management plan.
10.—(1) Subject to the provisions of this Order, the detailed design for the authorised development must accord with—
(a)the preliminary scheme design shown on the works plans and the engineering drawings and sections;
(b)the principles set out in the environmental masterplan; and
(c)the design principles,
unless otherwise agreed in writing by the Secretary of State following consultation with the relevant planning authority and relevant local highway authority on matters related to their functions, provided that the Secretary of State is satisfied that any amendments would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(2) Where amended details are approved by the Secretary of State under paragraph (1), those details are deemed to be substituted for the corresponding plans sections and the undertaker must make those amended details available in electronic form for inspection by members of the public.
(3) No part of the authorised development is to commence until, for that part, a report has been submitted to, and, following consultation with the relevant local planning authority, approved by the Secretary of State, demonstrating that—
(a)the undertaker has engaged with relevant stakeholders on refinements to detailed design for that part of the authorised development;
(b)the undertaker has had regard to the relevant stakeholders’ comments; and
(c)any refinements to the detailed design for that part of the authorised development arising as a result of that engagement should accord with the scheme design approach and design principles.
11.—(1) No part of the authorised development is to commence until for that part written details of the surface and foul water drainage system, reflecting the mitigation measures in chapter 14 of the environmental statement and including means of pollution control, have been submitted to and approved in writing by the Secretary of State following consultation with the relevant local authority and the Environment Agency on matters relating to their functions.
(2) The surface and foul water drainage system must be constructed in accordance with the approved details referred to in paragraph (1) unless otherwise agreed in writing by the Secretary of State following consultation with the relevant local authority and the Environment Agency on matters relating to their functions, provided that the Secretary of State is satisfied that any amendments to the approved details would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
12.—(1) Subject to sub-paragraph (2), the authorised development must be carried out in accordance with the flood risk assessment, including the mitigation measures detailed in it, so that no part of the authorised development is predicted to result in any exceedance of the flood levels to properties and land shown in the flood risk assessment.
(2) Sub-paragraph (1) does not apply in any circumstance where the undertaker proposes to carry out a part of the authorised development otherwise than in accordance with the flood risk assessment but either demonstrates to the Environment Agency’s satisfaction that the part of the authorised development concerned would not result in a material exceedance of the flood levels shown in the flood risk assessment or that all affected landowners accept the predicted exceedance of the flood levels shown in the flood risk assessment.
13.—(1) No part of the authorised development is to commence until written details of the proposed noise mitigation for the use and operation of that part of the authorised development, including—
(a)noise barriers, and
(b)noise bunds,
has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority.
(2) The locations for the mitigation measures referred to in paragraph (1) must reflect the locations and extents shown on the environmental masterplan.
(3) The written details referred to in paragraph (1) must—
(a)reflect the mitigation measures for operation included in Chapter 12, Noise and Vibration, of the environmental statement; or
(b)where it materially differs from these measures, demonstrate that the mitigation proposed would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(4) The noise mitigation measures must be provided in accordance with the approved details.
(5) The noise mitigation measures referred to in sub-paragraph (1)(a) must be retained and maintained following their being provided.
14.—(1) No part of the authorised development is to open to traffic until a scheme of operation phase traffic mitigation for the B1137 in Boreham has been submitted to and approved by the local highway authority, provided that it is satisfied that any scheme of operation would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(2) The operation phase traffic mitigation scheme for Boreham must include provision for the following operational phase traffic mitigation—
(a)a new controlled pedestrian crossing on the B1137 in the vicinity of Boreham Co-op (grid reference 575330, 210021);
(b)road safety posters in the vicinity of Orchard Cottages (grid reference 576394, 210658), Boreham Recreation Ground (grid reference 575848, 2103190) and outside of the Little Hedgehogs Day nursery (grid reference 575444, 210081);
(c)installation of average speed cameras on the B1137 (excluding ongoing operation, maintenance/calibration and enforcement) within Boreham as defined by the extent of 30mph speed limit shown between reference A.010 and A.011 on the traffic regulation measures speed limit plans;
(d)installation of average speed cameras (but not including provision for their ongoing operation, maintenance /calibration and enforcement) on the B1137 between Boreham and Hatfield Peverel defined by the extent of 40mph speed limit shown between reference A.011 and A.012 on the traffic regulation measures speed limit plans; and
(e)minor road narrowing (similar to the existing provision at the southern entry to Boreham village) at three new locations—
(i)the northern entry to Boreham village;
(ii)between the northern entry to Boreham village and Waltham Road; and
(iii)in the vicinity of the pedestrian entrance to the recreation ground.
(3) The scheme of operation phase traffic mitigation for the B1137 in Boreham must be implemented in accordance with the approved details.
(4) No part of the authorised development is to open for public use until the approved scheme has been implemented and delivered by the undertaker.
15.—(1) No part of the authorised development is to open to traffic until a scheme of operation phase traffic mitigation for Messing has been submitted to and approved by the local highway authority, provided that it is satisfied that any scheme of operation would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(2) The operation phase traffic mitigation scheme must include provision for the following operational phase traffic mitigation—
(a)gateway features for signage in accordance with Traffic Signs Manual Chapter 3: Figure 8-21, and speed limit roundels in accordance with the 2016 Regulations and Directions diagram 1065 at Lodge Rd (grid reference 589938, 219356), Kelvedon Rd (grid reference 589511, 218861) and Harborough Hall Road (grid reference 590233, 218566) marking the extents of the existing 30mph speed limit;
(b)“unsuitable for heavy goods vehicles” signage in accordance with the 2016 Regulations and Directions diagram 820 at the junction of the B1023 and Yewtree Farm Road (grid reference 587881, 218631), the junction of Harborough Hall Road and B1022 (grid reference 590573, 218228), the junction of the B1023 and Oak Road (grid reference 588820, 217131), and the junction of the B1022 and Oak Road (grid reference 589505, 217275;
(c)an average speed camera system covering the B1023 between Inworth Road roundabout and the existing 30mph terminal on the northern approach to Tiptree, and a fixed speed camera covering the southbound carriageway north of the Inworth Road roundabout;
(d)widening of pinch points between Perrywood Garden Centre and the B1022 to a minimum carriageway width of 6.1m in line with the approach to other pinch point widening proposals;
(e)measures to improve provision for walking, cycling and horse riding users, as identified in the assessment under subparagraph (2);
(f)narrowing of the entries to Oak Road (both the eastern and western ends), through tightening of entry radii and appropriate landscaping;
(g)priority narrowing measures on Oak Road; and
(h)improved signage at either end of Oak Road to guide through traffic to the B1022/B1023 junction.
(3) The scheme of operation phase traffic mitigation for Messing must be implemented in accordance with the approved details.
(4) No part of the authorised development is to open for public use until the approved scheme has been implemented by the undertaker.
16.—(1) No part of the authorised development is to commence until a survey to assess baseline traffic levels has been undertaken at the following locations—
(a)B1137 Main Road, Boreham;
(b)The Street/Maldon Road (Duke of Wellington) junction, Hatfield Peverel;
(c)Little Braxted Lane, Little Braxted;
(d)Braxted Road/Braxted Park Road;
(e)B1023 Kelvedon Road, Inworth;
(f)Kelvedon Road, Messing;
(g)B1023 Church Road, Tiptree; and
(h)any other locations that are agreed between the undertaker and the local highway authority.
(2) No part of the authorised development is to open to traffic until details of an operation phase local traffic monitoring scheme has been submitted to and approved by the local highway authority, for the locations listed in sub-paragraph (1).
(3) The operation phase local traffic monitoring scheme to be provided under sub-paragraph (2) must include—
(a)a survey to assess baseline traffic levels at the locations listed in sub-paragraph (1), or confirmation that such survey has already been undertaken;
(b)proposals for an operation traffic survey at the locations listed in sub-paragraph (1) to assess the changes in traffic from the baseline carried out—
(i)within the first year; and
(ii)prior to the expiry of the third year,
following the date on which the authorised development is fully completed and open for traffic;
(c)details of the methodology to be used to collect the required data;
(d)details of the periods over which operation traffic is to be monitored; and
(e)proposals for the submission of the survey data collected and an interpretative report to be provided to the relevant local highway authority.
(4) The scheme approved under sub-paragraph (2) must be implemented by the undertaker unless otherwise agreed in writing with the local highway authority.
17. Any pre-commencement works must be carried out in accordance with the pre-commencement plan.
18.—(1) Requirement 10 (detailed design) is to be read subject to the provisions of this requirement.
(2) The detailed design for the proposed A12 junction 21 (“junction 21”) must contain the revised design detail specified in sub-paragraph (3) of this requirement and submitted to and approved by the relevant local highway authority.
(3) Subject to sub-paragraph (5) the detailed design for junction 21 must include a two-lane exit from both the junction 21 northern roundabout to the A12 northbound slip road and from the junction 21 southern roundabout to the A12 southern slip road.
(4) Junction 21 must be constructed in accordance with the approved details.
(5) No application for approval of the scheme under sub-paragraph (2) may be made in respect of proposals which would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
19.—(1) The consent of the Secretary of State pursuant to article 14(7) (classification of roads, etc.) must not be sought until written details of the proposals for the roads to be de-trunked as identified in Part 14 of Schedule 3 has been submitted and approved in writing by the Secretary of State following consultation with the relevant local highway authority and relevant planning authority, such scheme to include—
(a)drawings and plans showing the proposals;
(b)details of how the proposals maintain a safe and reliable highway network;
(c)details of the provision made for non-car transport modes;
(d)details of how existing accesses will retain access to the de-trunked road;
(e)details of how existing utilities will be safeguarded;
(f)details of landscaping and planting;
(g)details of drainage provision;
(h)a timetable for implementation of the proposal; and
(i)the agreement (such agreement not to be unreasonably withheld) of the local highway authority that any highway assets to be transferred to it are in a condition that meets its reasonable satisfaction.
(2) No application for approval of the scheme under sub-paragraph (1) may be made in respect of proposals which would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(3) The scheme approved under sub-paragraph (1) must be implemented by the undertaker and in accordance with the approved timetable for implementation, unless otherwise agreed in writing with the Secretary of State following consultation with the relevant local highway authority.
20.—(1) Requirement 10 (detailed design) is to be read subject to the provisions of this requirement.
(2) The detailed design for the works must accord with the Walking, Cycling, Horse-riding bridge specifications in Appendix B of the design principles.
(3) The authorised development must be constructed in accordance with the Walking, Cycling, Horse-riding bridge specifications in Appendix B of the design principles.
21. With respect to any requirement which requires the authorised development to be carried out in accordance with the details approved under this Schedule, the approved details are taken to include any amendments that may subsequently be approved or agreed in writing by the approving authority.
22.—(1) Where an application has been made to the approving authority for any consent, agreement or approval required by a requirement (including agreement or approval in respect of part of a requirement) included in this Order, the approving authority must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—
(a)the day immediately following that on which the application is received by the approving authority;
(b)the day immediately following that on which further information has been supplied by the undertaker under paragraph 22 (further information); or
(c)such longer period as may be agreed between the parties.
(2) Subject to paragraph (3), in the event that the approving authority does not determine an application within the period set out in paragraph (1), the approving authority is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.
(3) Where—
(a)an application has been made to the approving authority for any consent, agreement or approval required by a requirement included in this Order;
(b)the approving authority does not determine such application within the period set out in sub-paragraph (1); and
(c)the application is accompanied by a report from a body required to be consulted under that requirement that considers it likely that the subject matter of the application is to give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,
the application is taken to have been refused by the approving authority at the end of that period.
23.—(1) In relation to any part of an application made under this Schedule, the approving authority has the right to request such further information from the undertaker as is necessary to enable the approving authority to consider the application.
(2) In the event that the approving authority considers such further information to be necessary, the approving authority must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates. In the event that the approving authority does not give such notification within that 21 business day period the approving authority is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.
(3) Where further information is requested under this paragraph in relation to part only of an application, that part is treated as separate from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 24 (applications made under requirements) and in this paragraph.
(4) In this paragraph, “business day” means a day other than Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971(3).
24.—(1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in an electronic form suitable for inspection by members of the public a register of those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the approving authority.
(2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the approving authority has been applied for or given, providing an electronic link to any document containing any approved details.
(3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.
25. If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.
26.—(1) With respect to any requirement which requires the undertaker to consult another party (“the consultee”), the undertaker must, subject to sub-paragraph (2), provide the consultee with not less than 28 days beginning with the start date to respond to the consultation.
(2) If no later than the expiry of 21 days beginning with the start date, a consultee requests more time to respond to the consultation than was given under paragraph (1), the undertaker may consent (such consent not to be unreasonably withheld) to an extension of that period so that the consultee has a longer period to respond (such period to be not less than 42 days but no more than 56 days, beginning with the start date).
(3) In this paragraph, “the start date” is the day following the date on which the consultee received the document being consulted on.
27.—(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule following consultation with another party, the details submitted must be accompanied by—
(a)a summary report setting out the consultation undertaken by the undertaker to inform the details submitted and the undertaker’s response to that consultation; and
(b)copies of all consultation responses received.
(2) At the time of submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under sub-paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.
(3) The undertaker must ensure that any consultation responses are reflected in the details submitted to the Secretary of State for approval under this Schedule, but only where it is appropriate, reasonable and feasible to do so, taking into account considerations including, but not limited to, cost and engineering practicality.
(4) Where the consultation responses are not reflected in the details submitted to the Secretary of State for approval, the undertaker must state in the summary report referred to under sub-paragraph (1), the reasons why the consultation responses have not been reflected in the submitted details.
1990 (c. 43). Section 78A was inserted by section 57 of the Environment Act 1995 (c. 25) and was amended by section 86(2) of the Water Act 2003 (c. 37).