The Kentish Flats Extension Order 2013

Citation and commencement

1.  This Order may be cited as the Kentish Flats Extension Order 2013 and shall come into force on 20th February 2013.

Interpretation

2.—(1) Except for Schedule 2 which is subject to the definitions provided in that Schedule, in this Order—

“the 1990 Act” means the Town and Country Planning Act 1990(1);

“the 2004 Act” means the Energy Act 2004(2);

“the 2008 Act” means the Planning Act 2008;

“the 2009 Act” means the Marine and Coastal Access Act 2009(3);

“ancillary works” means the ancillary works described in Part 2 of Schedule 1 and any other works authorised by the Order and which are not development within the meaning of section 32 of the 2008 Act;

“authorised development” means the development described in Part 1 of Schedule 1;

“the authorised project” means the authorised development and the ancillary works authorised by this Order;

“the centre point of a turbine” means the centre point bisecting the turbine tower, transition piece and foundation;

“the deemed Marine Licence” means the marine licence set out in Schedule 2 and deemed by article 12 to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;

“the environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of this Order being application document reference number 4.1-4.3 dated October 2011;

“the export cable area” means the area described as such in Part 1 of Schedule 1 whose co-ordinates are specified in that Schedule;

“the land plan” means the plan No 5.3 (Drawing no. 9V9546/30/004 rev. 002) certified as the land plan by the Secretary of State for the purposes of this Order;

“the licence conditions” means the conditions set out in Part 2 of Schedule 2;

“the limits of deviation” means the limits of deviation for the scheduled works comprised in the authorised development shown on the works plan;

“the local planning authority” means Canterbury City Council or any successor to its statutory functions as a planning authority;

“maintain” includes maintain, inspect, repair, adjust, alter and refurbish and “maintenance” shall be construed accordingly;

“the Maritime and Coastguard Agency” or “MCA” means the executive agency of the Department for Transport or any successor to its functions;

“mean high water level” or “MHW” means the level of mean high water spring tides;

“mean low water level” or “MLW” means the level of mean low water spring tides;

“the Marine Management Organisation” or “MMO” means the body of that name created under the Marine and Coastal Access Act 2009 or any successor to its statutory functions;

“monopole foundation” means a metal pile, typically cylindrical, driven and/or drilled into the seabed and associated equipment;

“the offshore development area” means the area described as such in Part 1 of Schedule 1 whose co-ordinates are specified in that Schedule;

“the Order limits” means the limits shown on the Order limits plan and works plan as the limits within which the authorised development may be carried out;

“the Order limits plan” means the plan No 2.1 (Drawing no. 9V9546/30/001 rev. 004) certified as the Order limits plan by the Secretary of State for the purposes of this Order;

“the PLA” means the Port of London Authority or any successor to its statutory functions;

“the project design statement” means the document certified as the project design statement by the Secretary of State for the purposes of this Order being application document reference number 7.2 dated 10 October 2011;

“the Requirements” means the requirements set out in paragraphs 2 to 18 of Part 3 of Schedule 1;

“the scheduled works” means the works numbered 1a, 1b, 2a and 2b specified in Part 1 of Schedule 1, or any part of them as the same may be varied pursuant to article 4 of this Order;

“the Secretary of State” means the Secretary of State responsible for determining an application for development consent for the authorised development;

“Trinity House” means the Corporation of Trinity House of Deptford Strond or any successor to its functions;

“the undertaker” means, subject to article 7(3) of this Order, Vattenfall Wind Power Ltd;

“vessel” means every description of vessel, however propelled or moved, and includes a non-displacement craft, a personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over water and which is at the time in, on or over water;

“wind turbine generator” or “wind turbine” means a structure comprising any or all of a tower, transition piece, rotor, blades, nacelle and ancillary electrical and other equipment which may include lighting, j-tubes, transition piece, access and rest platforms, access ladders, boat access systems, corrosion protection systems, fenders and maintenance equipment, fixed to a foundation; and

“the works plan” means the plan No 5.4 (Drawing no. 9V9546/30/005 rev. 006) certified as the works plan by the Secretary of State for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do or to place and maintain anything in, on or under land or in the air-space above its surface.

(3) References in this Order to numbered Requirements are to the Requirements with those numbers in Part 3 of Schedule 1.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development shall be taken to be measured along that work.

Development consent etc. granted by the Order

3.—(1) Subject to the provisions of this Order, the Requirements and the provisions and conditions of the deemed Marine Licence, the undertaker is granted—

(a) development consent for the authorised development; and

(b) consent for the ancillary works,

to be carried out within the Order limits.

(2) Subject to article 4 the authorised development shall be constructed in the lines or situations shown on the works plan.

Limits of deviation

4.  Subject to Requirements 4 and 5, in carrying out or maintaining the scheduled works the undertaker may deviate laterally from the lines or situations shown on the works plan to the extent of the limits of deviation.

Maintenance of authorised project

5.  Subject to—

(a) the other terms of this Order, including the Requirements and the provisions and conditions of the deemed Marine Licence; and

(b) any contrary provision in an agreement made under this Order,

the undertaker may at any time maintain the authorised project.

Operation of electricity generating station

6.—(1) The undertaker is authorised to operate the electricity generating station comprised in the authorised development.

(2) This article does not relieve the undertaker of any requirement to obtain any permit or licence under any other legislation that may be required to authorise the operation of the electricity generating station.

Consent to transfer benefit of Order

7.—(1) Except as provided for in this article, section 156(1) of the 2008 Act applies to the grant of development consent by this Order.

(2) Subject to paragraph (5), the undertaker may—

(a) transfer to another person (the “transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee; or

(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 this Order and such related statutory rights as may be so agreed.

(3) Where a transfer or grant has been made in accordance with this article references in this Order to the undertaker, except in paragraphs (4) and (5) shall include references to the transferee or the lessee.

(4) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under this article shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

(5) Not later than 21 days after entering into any transfer or grant under paragraph (1) the undertaker shall give written notice to the Secretary of State, Trinity House, the PLA, the MCA and the MMO stating the name and address of the person to whom the benefits or rights were conferred and the date when the transfer or grant is to take effect (which shall not be earlier than the date of receipt of the notice by whichever of the Secretary of State, Trinity House, the PLA, the MCA or the MMO is the last to be notified).

Requirements, appeals etc

8.—(1) Where an application is made to the local planning authority for any consent, agreement or approval required by Requirements 3 or 12 to 15 (requirements that relate to land above MLW), the following provisions apply in respect of that application as they would apply if the consent, agreement or approval so required was required by a condition imposed on a grant of planning permission—

(a) sections 78 and 79 of the 1990 Act (right of appeal in relation to planning decisions);

(b) any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission.

(2) For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant to this article, the undertaker is deemed to be a holder of a licence under section 6 of the Electricity Act 1989.

Public rights of navigation

9.—(1) Subject to paragraphs (2) and (3), the rights of navigation over the places in the sea where each individual wind turbine generator comprising part of the authorised development is located (“the relevant rights of navigation”) shall be extinguished.

(2) The extinguishment of the relevant rights of navigation shall take effect 14 days after the undertaker has submitted a plan to the Secretary of State, Trinity House, the PLA, the MCA and the MMO showing the precise locations of the foundations of each of the wind turbine generators to be constructed as part of the authorised development.

(3) In respect of the location of any individual wind turbine generator, paragraph (1) shall cease to have effect as soon as that wind turbine generator has been decommissioned and permanently removed, and the relevant rights of navigation shall resume.

(4) The plan submitted in accordance with paragraph (2) shall be published by the undertaker in such form and manner as required by the Secretary of State.

Abatement of works abandoned or decayed

10.—(1) Where the authorised project or any part of it is abandoned or suffered to fall into decay the Secretary of State may by notice in writing require the undertaker at its own expense either to repair and restore the authorised project or any part, or to remove the authorised project and restore the site to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.

(2) In circumstances where the undertaker is required to remove the authorised project, without prejudice to any obligations on the undertaker deriving from any notice served under section 105(2) of the 2004 Act, the notice may also require the restoration of the site of the relevant part of the authorised project to a safe and proper condition within such area and to such an extent as may be specified in the notice.

(3) If the undertaker fails to comply in any respect with a notice served under this article within the period of 30 days beginning with the date of service of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; and any expenditure incurred by the Secretary of State in doing so shall be recoverable from the undertaker.

Survey of works

11.—(1) If the Secretary of State considers it expedient to do so, the Secretary of State may order a survey and examination of the authorised project or of the site on which it is proposed to construct the authorised project, and any expenditure incurred by the Secretary of State in any such survey and examination shall be recoverable from the undertaker.

(2) Except in the case of an emergency such surveys shall not be ordered more frequently than once a year, and before ordering such a survey the Secretary of State shall—

(a) consult the undertaker in order to establish what relevant survey information is already available; and

(b) give the undertaker an opportunity to carry out the survey itself.

Deemed licence under the Marine and Coastal Access Act 2009

12.  The undertaker is deemed to have been granted a licence under Part 4 Chapter 1 of the 2009 Act to carry out the works and make the deposits described in Schedule 2, subject to the licence conditions which are deemed to have been attached to the licence by the Secretary of State under Part 4 of the 2009 Act.

Saving for Trinity House

13.  Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.

Crown rights

14.—(1) Nothing in this Order shall—

(a) prejudicially affect any estate, right, power, privilege, authority or exemption of the Crown; or

(b) authorise the undertaker to take, use, enter upon or in any manner interfere with any land, hereditaments or rights of whatever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary)—

(i) belonging to Her Majesty in right of the Crown and under the management of the Crown Estate Commissioners, unless it has the consent in writing of those Commissioners to do so ; or

(ii) belonging to a government department or held in trust for Her Majesty for the purposes of a government department, unless it has the consent in writing of that government department to do so.

(2) A consent under paragraph (1)(b) may be given unconditionally or may be subject to such conditions or upon such terms as may be considered necessary or appropriate by the Commissioners or by the government department concerned as the case may be.

Certification of plans etc

15.—(1) The undertaker shall, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

(a) the Order limits plan;

(b) the land plan;

(c) the works plan; and

(d) any other plans or documents referred to in this Order,

for certification that they are true copies of the documents referred to in this Order.

(2) A plan or document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Arbitration

16.  Any difference under any provision of this Order, unless otherwise provided for, shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on application of either party (after giving notice in writing to the other) by the Secretary of State.

Signed by authority of the Secretary of State for Energy and Climate Change

Giles Scott

Head of National Infrastructure Consents

Department of Energy and Climate Change

19th February 2013