The White Moss Landfill Order 2015

PART 1 GENERAL

Citation and commencement

1.  This Order may be cited as the White Moss Landfill Order 2015 and comes into force on 9th June 2015.

Interpretation

2.—(1) In this Order—

“1961 Act” means the Land Compensation Act 1961(1);

“1965 Act” means the Compulsory Purchase Act 1965(2);

“1980 Act” means the Highways Act 1980(3);

“1990 Act” means the Town and Country Planning Act 1990(4));

“1991 Act” means the New Roads and Street Works Act 1991(5);

“2008 Act” means the Planning Act 2008(6));

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

“application land” means the land on which the authorised project may take place and shown edged red on the application plan;

“application plan” means plan reference WS010003/WLL/PLANS/APPLICATION BOUNDARY indicating the extent of the application land;

“authorised development” means the development and associated development described in Schedule 1 (authorised project) and any other development authorised by this Order, 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;

“book of reference” means the book of reference certified by the decision-maker as the book of reference for the purposes of this Order;

“building” includes any structure or erection or any part of a building, structure or erection;

“compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

“county planning authority” means Lancashire County Council;

“the environmental statement” means the document submitted with the application as the environmental statement, as amended and updated during the examination;

“highway” and “highway authority” have the same meaning as in the 1980 Act;

“land plan” means the plan certified as the land plan by the decision-maker for the purposes of this Order with reference WS010003/WLL/PLANS/LAND, drawing reference WL/Wl/10-14/18186;

“limits of deviation” means the limits of deviation referred to in article 8;

“maintain” includes maintain, inspect, repair, remove, clear, refurbish, reconstruct, replace and improve, but not so as to vary from the description of the authorised project in Schedule 1, and not such as to give rise to any significant adverse environmental effects that have not been assessed in the environmental statement or any supplementary information supplied pursuant to The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009(7), and “maintained” and “maintenance” are to be construed accordingly;

“Order land” means the land shown on the land plan which is in the limits of the land to be acquired and described in the book of reference;

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

“owner” in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(8);

“street” means a street within the meaning of section 48 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“street authority” in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

“undertaker” means in relation to any provision of this Order, Whitemoss Landfill Limited and its successors in title, as well as any party to whom the benefit of the Order has been transferred pursuant to article 6;

“watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain;

“works plan” means the plan certified as the works plan by the decision-maker for the purposes of this Order with reference WS010003/WLL/PLANS/WORKS.

(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 and distances between points on a work comprised in the authorised project are to be taken to be measured along that work.

PART 2 PRINCIPAL POWERS

Development consent etc. granted by the Order

3.  Subject to the provisions of this Order and to the requirements in Schedule 2 attached to this Order the undertaker is granted—

(1) development consent for the authorised development; and

(2) consent for the ancillary works,

to be carried out within the Order limits.

Maintenance of authorised project

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.

Benefit of Order

5.  The provisions of this Order have effect solely for the benefit of the undertaker (save in circumstances where the benefit of the Order has been transferred to a relevant third party in accordance with the terms of article 6 (Consent to transfer benefit of Order), in which case the benefit extends to that third party).

Consent to transfer benefit of Order

6.—(1) The undertaker may, with the 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 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.

(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3), include references to the transferee or the lessee.

(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) 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.

Procedure in relation to approvals etc. under requirements

7.—(1) Where an application is made to the county planning authority for any consent, agreement or approval required by a requirement, the following provisions apply, so far as they relate to a consent, agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission, as if the requirement was a condition imposed on the grant of planning permission—

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

(b) subject to (c) below, 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; and

(c) The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 apply to applications for approval of any matter in pursuance of any requirement imposed by this Order.

(2) For the purposes of paragraph (1), a provision relates to a consent, agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission in so far as it makes provision in relation to an application for such a consent, agreement or approval, or the grant or refusal of such an application, or a failure to give notice of a decision on such an application.

Power to deviate

8.  The undertaker may deviate from the lines or situations shown on the works plan and the elevation plans to the extent of the limits of deviation shown on those plans.

PART 3 SUPPLEMENTAL POWERS

Discharge of water

9.—(1) The undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised project and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) is to be determined as if it were a dispute under section 106 of the Water Industry Act 1991(9) (right to communicate with public sewers).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but is not to be unreasonably withheld.

(4) The undertaker must not make any opening into any public sewer or drain except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval is not to be unreasonably withheld; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker must not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by Regulation 12 of the Environmental Permitting (England and Wales) Regulations 2010(10).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a sewerage undertaker; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Authority to survey and investigate the land

10.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits and—

(a) survey or investigate the land;

(b) without prejudice to the generality of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without prejudice to the generality of sub-paragraph (a), carry out ecological or archaeological investigations on the land; and

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of the land and making of trial holes.

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of the undertaker—

(a) must, if so required on entering the land, produce written evidence of their authority to do so; and

(b) may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes are to be made under this article—

(a) in land located within the highway boundary without the consent of the highway authority; or

(b) in a private street without the consent of the street authority,

but such consent is not to be unreasonably withheld.

(5) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Felling or lopping of trees

11.—(1) The undertaker may fell or lop any tree or shrub near any part of the authorised project, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project; or

(b) from constituting a danger to persons using the authorised project.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

PART 4 POWERS OF ACQUISITION

Compulsory acquisition of land

12.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised project, or to facilitate or which is incidental to it, including the land set out in Part 1 to the book of reference.

(2) From the date on which a compulsory acquisition notice under section 134(3) of the 2008 Act is served, or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, that land or that part of it which is vested (as the case may be) is discharged from all rights, trusts and incidents to which it was previously subject.

(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Compulsory acquisition of land – incorporation of the mineral code

13.  Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981 (11) (minerals) are incorporated in this Order subject to the modifications that—

(1) paragraph 8(3) of Schedule 3 is not incorporated; and

(2) for “the acquiring authority” substitute “the undertaker”.

Time limit for exercise of authority to acquire land compulsorily

14.  After the end of the period of 5 years beginning on the day on which this Order is made—

(1) no notice to treat is to be served under Part 1 of the 1965 Act; and

(2) no declaration is to be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 15 (application of the Compulsory Purchase (Vesting Declarations) Act 1981)(12).

Compulsory acquisition of rights

15.—(1) The undertaker may acquire compulsorily the existing rights described in Part 3 of the book of reference, and create and acquire compulsorily the new rights described in Part 1 of the book of reference.

(2) Any person who suffers loss as a result of the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Private rights of way

16.—(1) Subject to the provisions of this article, all private rights of way over land subject to compulsory acquisition under this Order are extinguished—

(a) as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the undertaker under section 11(1) of the 1965 Act (power of entry),

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights of way over land owned by the undertaker which, being within the limits of land which may be acquired shown on the land plan, is required for the purposes of this Order are to be extinguished on the appropriation of the land by the undertaker for any of those purposes.

(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) This article does not apply in relation to any right of way to which section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) applies.

(5) Paragraphs (1) to (3) have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of the land,

(ii) the undertaker’s appropriation of it, or

(iii) the undertaker’s entry onto it,

that any or all of those paragraphs are not to apply to any right of way specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right of way in question is vested or belongs.

(6) If any such agreement as is referred to in paragraph (6)(b)—

(a) is made with a person in or to whom the right of way is vested or belongs; and

(b) is expressed to have effect also for the benefit of those deriving title from or under that person,

it is to be effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

17.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(13) applies as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as so applied, is to have effect with the following modifications.

(3) In section 3 (preliminary notices), for subsection (1) there is to be substituted—

“(1) Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order, the acquiring authority shall include the particulars specified in subsection (3) in a notice which is—

(a) given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b) published in a local newspaper circulating in the area in which the land is situated.”.

(4) In that section, in subsection (2), for “(1)(b)” there is to be substituted “(1)” and after “given” there is to be inserted “and published”.

(5) In that section, for subsections (5) and (6) there is to be substituted—

“(5) For the purposes of this section, a person has a relevant interest in land if—

(a) that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or

(b) that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month.”.

(6) In section 5 (earliest date for execution of declaration)—

(a) in subsection (1), after “publication” there is to be inserted “in a local newspaper circulating in the area in which the land is situated”; and

(b) subsection (2) shall be omitted.

(7) In section 7 (constructive notice to treat), in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)” are to be omitted.

(8) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 are to be construed as references to that Act as applied by section 125 of the 2008 Act to the compulsory acquisition of land under this Order.

PART 5 MISCELLANEOUS

Defence to proceedings in respect of statutory nuisance

18.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(14)) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraphs (a), (c), (d), (e), (fa), (fb), (g) or (ga) of section 79(1) of that Act 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 that the nuisance is attributable to the carrying out of the authorised project in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974(15)); or

(ii) is a consequence of the construction or maintenance of the authorised project and that it cannot reasonably be avoided; or

(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 that the nuisance is attributable to the use of the authorised project which is being used in accordance with a scheme of monitoring and control agreed with the county planning authority and Environment Agency as described in the requirements; or

(ii) is a consequence of the use of the authorised project and that it cannot reasonably be avoided.

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), is not to 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.

Application of landlord and tenant law

19.—(1) This article applies to—

(a) any agreement for leasing to any person the whole or any part of the authorised project or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised project, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants is to prejudice the operation of any agreement to which this article applies.

(3) Accordingly, no such enactment or rule of law is to apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Certification of plans etc.

20.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the decision-maker copies of the following plans and documents—

(a) Sections 3 and 5 of the environmental statement, and Table ES1 amended October 2014;

(b) The works plan (WS010003/WLL/PLANS/WORKS);

(c) The application plan (WS010003/WLL/PLANS/APPLICATION BOUNDARY);

(d) The land plan (WS010003/WLL/PLANS/LAND, drawing reference WL/WL/10-14/18186);

(e) Proposed restoration contours (WS010003/WLL/PLANS/ELEVATION1);

(f) Elevations of the stockpiles and bunds (WS010003/WLL/PLANS/ELEVATION2);

(g) Elevations of the main infrastructure including buildings (WS010003/WLL/PLANS/ ELEVATION3);

(h) The site access from White Moss Road South (WS010003/WLL/PLANS/ELEVATION4);

(i) The phasing plans presented in the soils handling and management scheme (Drawing references LE00173-211, LE00173-212, LE00173-213, LE00173-214 & LE00173-215);

(j) Restoration proposals (WS010003/WLL/PLANS/SITE1);

(k) Landscaping, restoration, habitat management and aftercare scheme; (WS010003/WLL/LANDSCAPING, amended September 2014);

(l) Soils handling and management scheme; (WS010003/WLL/SOIL HANDLING, amended September 2014);

(m) Proposed basal levels (Drawing reference LE00173-222); and

(n) The book of reference,

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

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

Arbitration

21.  Any difference under any provision of this Order, unless otherwise provided for, is to 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 President of the Royal Town Planning Institute for the time being.

Brandon Lewis

Minister of State

Department for Communities & Local Government

19th May 2015