The York Potash Harbour Facilities Order 2016

Articles 2, 4 and 31

SCHEDULE 5 DEEMED LICENCE UNDER THE 2009 ACT

PART 1 INTRODUCTORY

Addresses and Undertaker

1.—(1) Unless otherwise advised in writing by the MMO, the address for postal correspondence with the MMO for the purposes of this Schedule is the Marine Management Organisation, Marine Licensing Team, Lancaster House, Newcastle Business Park, Newcastle upon Tyne, NE4 7YH and where contact with the MMO District Office is required, the following contact details should be used—

Neville House, Central Riverside, Bell Street, North Shields, NE30 1LJ;

Telephone number: 0191 257 4520;

Email address: [e-mail].

(2) Unless otherwise advised in writing by the MMO, the address for electronic communication with the MMO for the purposes of this Schedule is—

[e-mail]; or

[e-mail].

(3) Where in this Schedule reference is made to the undertaker it includes any agent or contractor or person acting on the undertaker’s behalf.

PART 2 LICENSED ACTIVITIES

2.  For the purpose of constructing and maintaining the authorised development the licence holder may carry out the activities set out in this Part as if those activities were licensed under the 2009 Act.

Construction of the quay

3.  The undertaker is permitted to construct the quay (Work No. 2) within the quay limits (as described in Schedule 6 (quay limits)) according to the following specification—

(a) the quay length must be no more than 486 metres;

(b) the quay width must be no more than 87 metres; and

(c) the deck level of the structure must be no more than +5.6 metres Ordnance Datum.

Open quay structure

4.  The undertaker is permitted to construct the open quay structure according to the following specification—

(a) suspended deck structures comprised of a reinforced concrete deck supported by approximately 200 driven steel tubular piles in phase 1, with an additional 200 piles required for phase 2, in the order of 0.9 metres diameter;

(b) the area of the deck structure (quay) is to be no more than 28 metres wide by 280 metres long in phase 1, increasing up to a total of 486 metres long in phase 2;

(c) the quayside is to consist of engineering fill to create a trafficable surface adjacent to the quay, for the full length of the quay. The width of the quayside is to be between 43 metres and 53 metres;

(d) 2 access bridges are to be constructed during phase 1, allowing one to be used for the construction of phase 2 whilst maintaining the other for operational access;

(e) installation of a revetment on the re-graded slope, either to be placed on the re-graded slope prior to installation of piles, or placed following installation of the piles; and

(f) replacement of the existing pipe through the embankment between the Tees estuary and the lagoon with 2 new pipes of larger capacity each incorporating independently operated flow control structures.

Solid quay structure

5.  The undertaker is permitted to construct the solid quay structure according to the following specification—

(a) phase 1—

(i) the combi-pile wall is to consist of 120 king piles (of approximately 2 metres diameter) with intermediate sheet piles;

(ii) the anchor wall is to consist of a length of approximately 210 metres of sheet piles; and

(iii) 40 piles of 660 millimetre diameter are required for the cope beam to support the landside ship loader rails, installed between the tie rods that connect the king piles to the anchor wall;

(b) phase 2—

(i) the combi-pile wall is to consist of an additional 90 king piles with intermediate sheet piles;

(ii) the anchor wall is to consist of an additional plan length of approximately 200 metres of sheet piles; and

(iii) a further 35 piles of 660 millimetre diameter are required for the cope beam to support the landside ship loader rails;

(c) the quayside is to consist of engineering fill to create a trafficable surface adjacent to the quay, for the full length of the quay – the width of the quayside is to be between 65 metres and 87 metres;

(d) the footprint is to be no more than 87 metres wide by 280 metres long in Phase 1, increasing up to a total of 486 metres long in phase 2 – access to the quay is to be directly from the reclaimed area behind the quay wall; and

(e) replacement of the existing pipe through the embankment between the Tees estuary and the lagoon with 2 new pipes of larger capacity each incorporating independently operated flow control structures.

Capital dredging and disposal

6.—(1) The undertaker is permitted to carry out capital dredging at the following locations—

(a) the current approach channel to a depth of 14.1 metres below Chart Datum (16.95 metres below Ordnance Datum); and

(b) the berth pocket to a depth of 16 metres below Chart Datum (18.85 metres below Ordnance Datum).

(2) The materials must be dredged in the approximate quantities according to the following table—

Dredged material type	Open quay (cubic metres)	Solid quay (cubic metres)
Silts	181,000	66,000
Sands and Gravels	326,000	196,000
Clays	230,000	194,000
Mercia Mudstone	385,000	358,000
TOTAL (MAXIMUM)	1,122,000	814,000

(3) For phases 1 and 2, the dredging of the contaminated silts is to be undertaken using enclosed grabs.

(4) For phase 1 the dredging of the sands and gravels is to be undertaken using a Trailing Suction Hopper Dredger (“TSHD”).

(5) For phases 1 and 2 the dredging of the clay and Mercia mudstone (marl) must be undertaken using a backhoe dredger, TSHD or Cutter Suction Dredger (“CSD”). For phase 2, dredging of sands and gravel is to be by a backhoe dredger, TSHD or CSD.

(6) The following maximum quantities of dredged material are to be disposed at Tees Bay C (TY 150) offshore dredged material disposal sites—

(a) 615,000 cubic metres of clay and mudstone; and

(b) 326,000 cubic metres of sand and gravel,

unless otherwise agreed with the MMO.

Lagoon habitat enhancement

7.—(1) The lagoon habitat enhancement works must not commence until a written lagoon habitat enhancement plan (to include details of pre and post construction monitoring) has been submitted to and approved by the MMO (following consultation with Natural England, the Environment Agency and the local planning authority).

(2) The lagoon habitat enhancement plan must include—

(a) details of proposals for pre and post construction monitoring;

(b) details of the enhancement of habitat in the lagoon for water birds and a construction method statement regulating the construction of those works; and

(c) a timetable for the implementation of those works.

(3) The lagoon habitat enhancement plan (including pre and post construction monitoring information) must accord with the mitigation and monitoring strategy.

(4) The lagoon habitat enhancement plan must be implemented as approved.

PART 3 ENFORCEMENT

8.  Any breach of this Schedule does not constitute a breach of this Order but is subject to the enforcement regime in Chapter 3 (enforcement) of Part 4 (licensing) of the 2009 Act as if this Schedule were a licence granted under that Act.

PART 4 CONDITIONS

General conditions

9.—(1) The conditions set out at paragraphs 10 to 51 are licence conditions attached to the DML granted by article 31 (deemed marine licence).

(2) For such of the licensed activities that involve the construction, alteration or improvement of works in or over the sea or on or under the sea bed, the conditions apply to any person who for the time being owns, occupies or enjoys any use of the licensed activity.

(3) This licence is for 20 years from the date of coming into force of this Order whereby—

(a) the minimum construction period for phase 1 and phase 2 works is 17 months each for both forms of quay structure; and

(b) phase 2 works are to commence within 6 years of completion of phase 1.

10.  The MMO must be notified by the undertaker at least 10 working days before the commencement of each phase of the licensed activity of its acceptance of the provisions of this Schedule and that the undertaker and any agents or contractors employed by it to carry out the licensed activities have knowledge of the provisions of this Schedule.

11.  The undertaker must ensure that the MMO District Marine Office is notified of the timetable of works and operations at least 10 working days prior to the commencement of each phase of the licensed activity.

12.  The MMO must be notified by the undertaker in writing of any agents, contractors or sub-contractors that will be carrying out any licensed activity on behalf of the undertaker at least 4 weeks before the commencement of each phase of the licensed activity.

13.  The undertaker must ensure that a copy of this Schedule and any subsequent revisions or amendments has been provided to, read and understood by any agents, contractors or subcontractors that will be carrying out any licensed activity on behalf of the undertaker.

14.  The undertaker must ensure that the names of vessels to be utilised in connection with a licensed activity are provided to the MMO and agreed at least 4 weeks prior to the commencement of the licensed activities such notification setting out—

(a) the vessel type;

(b) the vessel International Maritime Organization number; and

(c) the vessel owner or operating company.

15.  The undertaker must ensure that a copy of this Schedule and any subsequent revisions or amendments has been provided to, read and understood by the master of any vessel being used to undertake any licensed activity, and that a copy of this Schedule is held on board any such vessel.

16.  The undertaker must ensure that a Notice to Mariners is issued at least 10 working days prior to the licensed activity commencing warning of the start date for the construction of the licensed activity and updated as appropriate.

Project wide conditions

17.—(1) Prior to any works commencing below the level of high water, the undertaker must submit detailed method statements to the MMO for approval for each operation of the licensed activities at least 3 months prior to the commencement of such licensed activity and any such approval must not be unreasonably withheld or delayed and is deemed to have been permitted if it is neither given nor refused within 3 months of the specified day.

(2) The undertaker must provide the MMO with such further details as the MMO may reasonably require, any such request to be made within 28 days from the day on which the detailed method statement was submitted under sub-paragraph (1).

(3) In this paragraph the “specified day” means—

(a) the day on which the MMO have received the detailed method statement referred to in sub-paragraph (1); or

(b) the day on which the undertaker provides the MMO with such further particulars as have been reasonably requested by the MMO under sub-paragraph (2).

18.—(1) The undertaker must only work and access the licensed area within a defined and marked out area so as to limit personnel and plant access to the area of Works Nos. 2 and 3.

(2) Co-ordinates (in WGS84) and plan diagrams of the licensed area and access routes must be submitted to the MMO at least 4 weeks prior to the commencement of the licensed activity.

(3) Licensed activity must not commence before the approval of the co-ordinates and plan diagrams of the licensed area and access routes has been given by the MMO.

19.  All construction phase activities must be carried out in accordance with the following—

(a) best practice guidance including the Environment Agency’s Pollution Prevention Guidance notes and guidance from the Construction Industry Research and Information Association;

(b) adherence to the Construction (Design and Management) Regulations 2015 where applicable; and

(c) adherence to the Construction Environmental Management Plan approved under paragraph 6(1) of Schedule 2 (requirements) and an Incident and Emergency Response Plan.

20.  The undertaker must ensure that any coatings and treatments used are approved by the Health and Safety Executive as suitable for use in the marine environment.

21.  The undertaker must ensure that all materials used in construction of any part of the licensed activities are suitable and approved by the MMO for use within the marine environment.

22.  The undertaker must ensure that during the licensed activity all wastes are stored in designated areas that are isolated from surface water drains, open water and bunded if necessary to contain any spillage.

23.  The undertaker must ensure that no waste concrete slurry or wash water from concrete or cement licensed activities are discharged into the marine environment.

24.  Concrete and cement mixing and washing areas must be contained and sited at least 10 metres from any watercourse or surface water drain to minimise the risk of run off entering a watercourse.

25.  The undertaker must install bunding and storage facilities to contain and prevent the release into the marine environment of fuel, oils and chemicals associated with plant, refuelling and construction equipment, ensuring that secondary containment is used with a capacity of not less than 110% of any container’s storage capacity.

26.  The undertaker must ensure that any oil, fuel or chemical spill within the marine environment is reported to the MMO Marine Pollution Response Team, telephone number 0300 200 2024 (office hours) or 07770 977 825 (outside office hours); and if no response is received, Defra Duty Room, telephone number 0345 0818 486; MMO, emergency fax (not manned 24 hours) 0191 376 2682 or email address [e-mail]; or such replacement numbers or email addresses notified to the licence holder by the MMO in writing.

27.  The undertaker must ensure that the maintenance of plant, including regular inspections, is carried out routinely and in accordance with the manufacturers’ guidance.

28.  A spill kit (including booms for potential leaks directly into the marine environment) must be kept on site at all times during the construction phase and any major spills or leakages controlled and reported to the Environment Agency and the harbour master.

29.  The undertaker must ensure that any equipment, temporary structures, waste and debris associated with the works are removed within 6 weeks of completing construction of the licensed activities.

Piling conditions

30.  The undertaker must ensure adherence to JNCC’s guidelines ‘Statutory nature conservation agency protocol for minimising the risk of injury to marine mammals from piling noise’ (JNCC, 2010) during pile driving. This is to include checking for marine mammals during a pre-piling search prior to piling operations commencing, the establishment of a mitigation zone (that is, an area within which a marine mammal could be exposed to sound levels which could cause damage) and the use of “soft-start” techniques to allow any marine mammals time to leave the area of greatest disturbance.

31.  The undertaker must ensure the implementation of a minimum of 8 hours continuous break in every 24 hour period where no impact piling is carried out and must ensure that no more than one vessel is carrying out a piling operation at any one time.

32.  The undertaker must ensure that acoustic barriers are positioned—

(a) along the embankment between the lagoon and the construction works for the quay; and

(b) between the lagoon and the construction works for the conveyor constructed in the northern corridor.

33.  The undertaker must ensure that no piling is undertaken for 3 hours following low water, nor during May and that any percussive piling is implemented using a “soft-start” procedure.

Capital dredging, disposal conditions and debris

34.—(1) The undertaker must agree a capital dredge and disposal strategy with the MMO at least 4 weeks before the commencement of any licensed activities.

(2) If any disposal or dredging activities are to take place after 1st October 2017—

(a) the undertaker must submit a sediment sampling plan to the MMO for approval at least 6 months prior to that dredging or disposal activity being carried out;

(b) the sediment sampling and analysis of the sediment must be completed by a laboratory validated by the MMO at least 6 weeks prior to the dredging or disposal activity being carried out; and

(c) the dredging and disposal activity must not be carried out without the consent of the MMO.

35.  The undertaker must ensure that as a result of the capital dredging activities referred to in paragraph 6 no more than 941,000 cubic metres is disposed to site Tees Bay C (TY 150).

36.—(1) The undertaker must ensure that certified returns of quantities of dredged material deposited under this licence are submitted to the MMO by 15th February (for the months August to January inclusive) and 15th August (for the months February to July inclusive) each year.

(2) The returns must specify the full licence number and amounts deposited (in tonnes) each calendar month at each authorised deposit area.

(3) Where no deposit is made in a given period a NIL return is required.

(4) The disposal method used must be submitted with the returns.

(5) Any contaminated sediment (largely silt) lying deeper than 1 metre below the surface of the seabed (excluding the underlying geological material) must not be disposed of at sea.

(6) The removal of any contaminated silt to a site licensed for the treatment and disposal of such silt must only be by means of a barge unless otherwise agreed by the MMO in consultation with the local planning authority.

37.  The undertaker must ensure that any man-made material is separated from the dredged material and disposed of at a registered onshore disposal site.

38.  If disposal of material is found to be the cause of any detrimental effects to the disposal site, the undertaker must ensure that such disposal ceases with immediate effect.

39.  If due to stress of weather or any other cause the master of a vessel determines that it is necessary to deposit the dredged material other than in accordance with the capital dredge and disposal strategy agreed under condition 34 because the safety of human life or of the vessel is threatened—

(a) full details of the circumstances of the deposit must be notified to the MMO within 48 hours; and

(b) at the reasonable request of the MMO the unauthorised deposits must be removed at the undertaker’s expense.

40.  At least 10 working days before commencement of the licensed activities, the undertaker must submit to the MMO an audit sheet covering all aspects of the construction of the licensed activities or any phase of them. The audit sheet must include details of—

(a) loading facilities;

(b) vessels;

(c) equipment;

(d) shipment routes;

(e) transport;

(f) working schedules; and

(g) all components and materials to be used in the construction of the licensed activities.

41.  The audit sheet must be maintained throughout the construction of the licensed activities (or relevant phase) and must be submitted to the MMO for review at fortnightly intervals during periods of active offshore construction.

42.  In the event that the MMO becomes aware that any of the materials on the audit sheet cannot be accounted for, it must require the undertaker to carry out a side-scan sonar survey to plot all obstructions across a reasonable area of search agreed by the MMO where construction works and related activities have been carried out. Any obstructions that the MMO considers to be associated with the authorised development must be removed at the undertaker’s expense.

43.  As an alternative to the completion of an audit sheet, with approval from the MMO, the undertaker may introduce a dropped object procedure. If a dropped object procedure is introduced, any dropped objects must be reported to the MMO using the dropped object procedure form within 6 hours of the undertaker becoming aware of an incident. On receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side-scan sonar), and the MMO may require obstructions to be removed from the seabed at the undertaker’s expense.

44.  The undertaker must agree with the MMO, before commencement of works, whether the dropped object procedure or audit sheet is to be used.

45.  The undertaker must, at least 4 months before the completion of the construction of each phase of the authorised development, submit for the approval of the MMO a post construction maintenance schedule setting out details of the maintenance regime for that part of the authorised development below the level of high water.

46.  An update to the post construction maintenance schedule must be submitted for approval every 3 years unless the MMO waives such requirement.

47.  Maintenance must be carried out in accordance with the approved post construction maintenance schedule.

Lagoon Habitat Enhancement Works

48.  The undertaker must implement and comply with the lagoon habitat enhancement plan (including pre and post construction monitoring) approved under paragraph 7 and must monitor and maintain the lagoon habitat enhancement works in accordance with the lagoon habitat enhancement plan and the principles outlined in the mitigation and monitoring strategy and agreed with the MMO in consultation with Natural England, the Environment Agency and the local planning authority.

Progress of licensed activities

49.  The undertaker must keep the MMO informed of progress of the licensed activities including—

(a) notice of commencement of construction of the licensed activities within 24 hours of commencement having occurred;

(b) notice within 24 hours of any aids to navigation being established by the undertaker; and

(c) notice within 5 working days of completion of construction of each phase of the licensed activities.

Decommissioning

50.  No decommissioning of that part of the authorised development below the level of high water is to take place until a decommissioning plan has been submitted to the MMO not less than 3 months prior to the decommissioning and approved by the MMO, and until the MMO has advised the undertaker whether or not the works comprised in the decommissioning plan require a marine licence under the provisions of the 2009 Act; and for the avoidance of doubt this DML does not obviate the need for such licence to be obtained if it is required for the decommissioning works being undertaken.

Archaeology

51.—(1) No development is to commence until a programme of archaeological work including a written scheme of investigation has been submitted to and approved by the MMO. The programme must be submitted for approval at least 6 weeks prior to the commencement of works. The scheme must include a level 1 Building Recording of the “Seventh Buoy Light/Dolphin Mooring Bollard” prior to demolition; and monitoring of dredging works in the harbour area in the vicinity of borehole BHP6 to identify and analyse peat deposits. The scheme must include an assessment of significance and research questions, and—

(a) the programme and methodology of site investigation and recording;

(b) the programme for post investigation assessment;

(c) provision to be made for analysis of the site investigation and recording;

(d) provision to be made for publication and dissemination of the analysis and records of the site investigation;

(e) provision to be made for archive deposition of the analysis and records of the site investigation; and

(f) nomination of a competent person or organisation to undertake the works set out within the written scheme of investigation.

(2) No development is to take place other than in accordance with the written scheme of investigation approved under sub-paragraph (1).

(3) The authorised development must not be occupied until the site investigation and post investigation assessment has been completed in accordance with the programme set out in the written scheme of investigation approved under sub-paragraph (1) and the provision made for analysis, publication and dissemination of results and archive deposition has been secured.