1. This Order may be cited as the Burbo Bank Extension Offshore Wind Farm Order 2014 and shall come into force on 26th September 2014.
2.—(1) 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(3);
“ancillary works” means the ancillary works described in Part 2 of Schedule 1 (ancillary works) and which are not development within the meaning of section 32 of the 2008 Act;
“authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development), which is development within the meaning of section 32 of the 2008 Act;
“authorised project” means the authorised development and the ancillary works authorised by this Order;
“CAA” means the Civil Aviation Authority constituted by the Civil Aviation Act 1982(4);
“commence”, unless otherwise provided for, means beginning to carry out any licensed marine activities referred to in the deemed marine licence at Schedule 2 (deemed licence under the Marine and Coastal Access Act 2009 – generation assets) and Schedule 3 (deemed licence under the Marine and Coastal Access Act 2009 – transmission assets) and any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised project other than archaeological investigations, environmental surveys and monitoring, investigations for the purpose of assessing ground conditions and “commencement” shall be construed accordingly;
“deemed generation assets marine licence” means the licence set out in Schedule 2 (deemed licence under the Marine and Coastal Access Act 2009 – generation assets) and deemed by article 9 (deemed marine licences under the Marine and Coastal Access Act 2009) to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;
“deemed marine licences” means one or both of the deemed generation assets marine licence and the deemed transmission assets marine licence;
“deemed transmission assets marine licence” means the licence set out in Schedule 3 (deemed licence under the Marine and Coastal Access Act 2009 – transmission assets) and deemed by article 9 (deemed marine licences under the Marine and Coastal Access Act 2009) to have been granted under Part 4 of the 2009 Act, by virtue of section 149A of the 2008 Act;
“environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of this Order and submitted with the application on 22 March 2013;
“gravity base foundation” means a structure principally of concrete, steel or steel and concrete which rests on the seabed either due to its own weight with or without added ballast or skirts, including associated sea bed preparation, scour protection, J-tubes, corrosion protection systems, boat landings comprising an access ladder with vertical boat fenders fitted either side and work platforms and equipment;
“jacket foundation” means a jacket/lattice type structure constructed of concrete, steel or steel and concrete which is fixed to the seabed at three or more points with driven or pre-installed piles or suction caissons, including associated scour protection, J-tubes, corrosion protection systems, boat landings comprising an access ladder with vertical boat fenders fitted either side, access and work platforms and equipment;
“land plan” means the plan certified as the land plan by the Secretary of State for the purposes of the Order;
“LAT” means lowest astronomical tide;
“maintain” includes inspect, maintain, repair, adjust and alter, and further includes remove, reconstruct and replace any of the ancillary works in Part 2 of Schedule 1 (ancillary works) and any component part of any wind turbine generator or offshore substation described in Part 1 of Schedule 1 (authorised development) (but not including the alteration removal or replacement of foundations) to the extent assessed in the environmental statement; and “maintenance” shall be construed accordingly;
“MCA” means the Maritime and Coastguard Agency;
“mean high water springs” or “MHWS” means the highest level which spring tides reach on average over a period of time above chart datum;
“MMO” means the Marine Management Organisation;
“offshore substation” means an offshore platform constructed of steel or concrete or steel and concrete with single or multiple decks housing major electrical equipment including high voltage transformers, switchgear, control rooms, cabling and busbars, lightning protection masts, communications masts, cable management, back-up generators, fuel storage, emergency accommodation, workshops and stores, helihoist facilities, cranes and other associated electrical and ancillary equipment;
“the Order limits” means the limits shown on the works plan within which the authorised project may be carried out, whose grid coordinates are set out in paragraph 2 of Part 1 of Schedule 1 (authorised development) to this Order;
“Requirements” means those matters set out in Part 3 of Schedule 1 (Requirements) to this Order;
“scheduled works” means the numbered works specified in Part 1 of Schedule 1 to this Order, or any part of them;
“scour protection” means measures to prevent loss of seabed sediment around foundation bases by use of protective aprons, mattresses, flow energy dissipation (frond) devices or rock and gravel dumping;
“steel monopile foundation” means a steel large diameter pile, typically cylindrical, driven and/or drilled into the seabed, including associated scour protection, transition piece, J-tubes, corrosion protection systems, boat landings comprising an access ladder with vertical boat fenders fitted either side, access and work platforms and equipment;
“suction caisson” means a large diameter steel cylinder which is fixed to the base of the foundation and partially penetrates the seabed and remains in place using its own weight and hydrostatic pressure differential;
“Trinity House” means the Corporation of Trinity House of Deptford Strond;
“undertaker” means DONG Energy Burbo Extension (UK) Limited;
“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 “WTG” means a structure comprising a tower, rotor with three horizontal axis blades connected at the hub, nacelle containing mechanical and electrical equipment, ancillary equipment including access ladders and platforms, lifts, cables, corrosion protection systems, maintenance equipment, helihoist facilities and other associated equipment, fixed to a foundation;
“works plan” means the plan certified as the works plan by the Secretary of State for the purposes of the 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) All distances, directions and lengths referred to in this Order are approximate, save in respect of the parameters referred to in Requirements 2 to 5 in Part 3, Schedule 1 (Requirements), and conditions 1 to 4 in Part 2 of Schedule 2 (deemed marine licence under the Marine and Coastal Access Act 2009 – Generation Assets) and conditions 1 to 3 in Part 2 of Schedule 3 (deemed marine licence under the Marine and Coastal Access Act 2009 – Transmission Assets).
(4) Any reference in this Order to a work identified by the number of the work is to be construed as a reference to the work of that number authorised by this Order, except that references to Works No. 1 to 3 in Schedules 2 and 3 shall be construed in accordance with the provisions in those Schedules.
3.—(1) Subject to the provisions of this Order and to the Requirements, in Part 3 of Schedule 1, the undertaker is granted—
(a)development consent for the authorised development, in Part 1 of Schedule 1; and
(b)consent for the ancillary works, in Part 2 of Schedule 1,
to be carried out within the Order limits.
(2) Subject to the Requirements, the works comprised in the authorised development may be constructed anywhere within the Order limits.
4. The undertaker may, at any time maintain the authorised project, except to the extent that this Order or an agreement made under this Order provides otherwise.
5.—(1) The undertaker is hereby authorised to operate the 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 from time to time to authorise the operation of an electricity generating station.
6.—(1) Subject to the provisions of this article, 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 (3) below) 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 (excluding the deemed marine licences referred to in (3) below) and such related statutory rights as may be so agreed.
(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (6), shall include references to the transferee or lessee.
(3) The undertaker may with the written consent of the Secretary of State—
(a)where an agreement has been made in accordance with paragraph (1)(a), transfer to the transferee the whole of the deemed generation assets marine licence and/or the whole of the deemed transmission assets marine licence and such related statutory rights as may be agreed between the undertaker and the transferee; or
(b)where an agreement has been made in accordance with paragraph (1)(b), grant to the lessee, for the duration of the period mentioned in paragraph (1)(b), the whole of the deemed generation assets marine licence and/or the whole of the deemed transmission assets marine licence and such related statutory rights as may be so agreed.
(4) The Secretary of State shall consult the MMO before giving consent to the transfer, or grant to another person of the whole of the benefit of the provisions of the deemed marine licences.
(5) Where the undertaker has transferred any benefit and/or a deemed marine licence, or for the duration of any period during which the undertaker has granted any benefit and/or a deemed marine licence under paragraph (1) or (3)—
(a)the benefit and/or a deemed marine licence 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 transferred 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.
(6) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) or (3) shall be subject to the same restrictions, liabilities, obligations and undertakings as would apply under this Order if those benefits or rights were exercised by the undertaker.
7.—(1) Subject to paragraph (2), the rights of navigation over the places in the sea where any of the wind turbine generators and offshore substation, including their foundations, are located within territorial waters, shall be extinguished.
(2) The extinguishment of the rights of navigation over the places identified in paragraph (1) shall take effect 14 days after the undertaker has submitted a plan to the Secretary of State showing the precise locations of the foundations of each wind turbine generator and offshore substation to be constructed as part of the authorised development within territorial waters.
(3) In respect of the location of any individual wind turbine generator or offshore substation, paragraph (1) shall cease to have effect as soon as that wind turbine generator or offshore substation 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 as required by the Secretary of State.
8.—(1) Where Work No. 1(a) and Work No. 2 or any part of them are abandoned or allowed to fall into decay, the Secretary of State may, following consultation with the undertaker, issue a written notice requiring the undertaker at its own expense to repair and restore or remove Work No. 1(a) and Work No. 2 or any relevant part of them, without prejudice to any notice served under section 105(2) of the 2004 Act.
(2) The notice may also require the restoration of the site of the relevant part(s) of Work No. 1(a) and Work No. 2 to a safe and proper condition within an 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.
9. The undertaker is granted the deemed licences under Part 4 Chapter 1 of the 2009 Act to carry out the works and make the deposits and removals specified in Part 1 of Schedule 2 (deemed licence under the Marine and Coastal Access Act 2009 – generation assets) and Part 1 of Schedule 3 (deemed licence under the Marine and Coastal Access Act 2009 – transmission assets), subject to the conditions set out in Part 2 of those Schedules respectively.
10. Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.
11.—(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 licensee—
(a)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)—
(i)belonging to Her Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;
(ii)belonging to Her 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
(iii)belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department; or
(b)to exercise any right under this Order compulsorily to acquire an interest in any land which is Crown land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown without the consent in writing of the appropriate Crown authority (as defined in the 2008 Act).
(2) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions, and shall be deemed to have been given in writing where it is sent electronically.
12.—(1) The undertaker shall, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—
(a)the works plan (document reference 5(2)(j) dated March 2013);
(b)the land plan (document reference 5(2)(i) dated March 2013);
(c)the outline ornithological survey document (dated March 2014); and
(d)the environmental statement (March 2013),
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.
13. 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 the 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
25th September 2014