The Southampton to London Pipeline Development Consent Order 2020

Article 3

SCHEDULE 2 REQUIREMENTS

PART 1 REQUIREMENTS

Interpretation

1.  In this Part—

“archaeological mitigation strategy” means the strategy of that description set out in Schedule 11 (documents to be certified) and certified as the archaeological mitigation strategy by the Secretary of State for the purposes of this Order;

“CEP” means the community engagement plan to be prepared and approved under Requirement 15 (community engagement plan);

“contamination” means contamination of any land (including groundwater) within the Order limits which has not been previously identified in the environmental statement which is in the reasonable opinion of the undertaker likely to affect the construction of the authorised development and/or cause significant harm to persons or pollution of controlled waters or the environment;

“CTMP” means the construction traffic management plan to be prepared and approved under Requirement 7 (construction traffic management plan);

“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(1);

“existing fuel pipeline” means so much of the existing Jetline pipeline from the undertaker’s Fawley refinery in Hampshire to the undertaker’s West London Terminal storage facility in the London Borough of Hounslow as is to be replaced by the pipeline works;

“Habitats Regulations Assessment” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the Habitats Regulations Assessment by the Secretary of State for the purposes of this Order;

“HRA Commitments Schedule” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the HRA Commitments Schedule by the Secretary of State for the purposes of this Order;

“indicative layout drawings” means the drawings of that description set out in Schedule 11 (documents to be certified) and certified as the indicative layout drawings by the Secretary of State for the purposes of this Order;

“Lead Local Flood Authority” means Hampshire County Council or Surrey County Council, as the case may be;

“LEMP” means the landscape and ecological management plan to be prepared and approved under Requirement 12 (landscape and ecological management plan);

“nationally protected species” means any species protected under the Wildlife and Countryside Act 1981(2);

“outline CEP” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the outline CEP by the Secretary of State for the purposes of this Order;

“outline CEMP” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the outline CEMP by the Secretary of State for the purposes of this Order;

“outline CTMP” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the outline CTMP by the Secretary of State for the purposes of this Order;

“outline LEMP” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the outline LEMP by the Secretary of State for the purposes of this Order;

“outline SFWDP” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the outline SFWDP by the Secretary of State for the purposes of this Order;

“protected species” means European protected species or nationally protected species;

“relevant authority” means the body responsible for giving a consent, agreement or approval under this Schedule;

“SDNP Schedule” means the document of that description set out in Schedule 11 (documents to be certified) and certified as the SDNP Schedule by the Secretary of State for the purposes of this Order;

“Site Specific Plans” means the plans of that description set out in Schedule 11 (documents to be certified) and certified as the site specific plans by the Secretary of State for the purposes of this Order;

“SSSI working plans” means the plans of that description showing the method of working in sites of special scientific interest as set out in Appendix B of the Habitats Regulations Assessment; and

“stage” means a defined spatial section or part of the authorised development, the extent of which is shown in a scheme submitted to the relevant planning authority pursuant to Requirement 3 (stages of authorised development).

Time limits

2.  The authorised development must be commenced within five years of the date that this Order comes into force.

Stages of authorised development

3.  The authorised development may not commence until a written scheme setting out all stages of the authorised development including a phasing plan indicating when each stage will be constructed has been submitted to each relevant planning authority.

Scheme design

4.—(1) Works Nos. 2B to 2G (inclusive), 2I to 2O (inclusive), 3A, 4A to 4AE (inclusive), 5A to 5U (inclusive), 6B and 6C must be carried out in general accordance with the indicative layout drawings.

(2) The authorised development will not be in general accordance with the indicative layout drawings if any departure from the indicative layout drawings would give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

Code of construction practice

5.  The authorised development must be undertaken in accordance with the code of construction practice, or with such changes to that document as agreed by the relevant planning authority, provided that any such changes must—

(a) be in accordance with the principles set out in the code of construction practice;

(b) be necessary or desirable to reflect a change or update in legislation, guidance or good practice or confined to a specific location along the route of the authorised development,

(c) not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement; and

(d) not result in a variation to the measures set out in the HRA Commitments Schedule.

Construction environmental management plan

6.—(1) No stage of the authorised development must commence until a CEMP for that stage, in accordance with the outline CEMP, has been submitted to and approved by the relevant planning authority following consultation with the Lead Local Flood Authority and/or the Environment Agency as regards any water mitigation and management measures relevant to that stage.

(2) The construction of each stage of the authorised development must be carried out in accordance with the approved CEMP for that stage.

(3) The CEMP submitted for approval under paragraph (1) must include the mitigation measures to be secured by the CEMP as set out in the HRA Commitments Schedule.

Construction traffic

7.—(1) Save in respect of matters approved in accordance with article 13 (temporary closure, alteration, diversion or restriction of streets and public rights of way) no stage of the authorised development must commence until a CTMP for that stage, in accordance with the outline CTMP, has been submitted to and approved by the relevant planning authority following consultation with the relevant highway authority.

(2) The CTMP for each stage must be implemented as approved.

Vegetation

8.—(1) For any stage of the authorised development that would affect any vegetation—

(a) the retention and removal of all vegetation must be undertaken in accordance with—

(i) a written vegetation retention and removal plan which has been submitted to the relevant planning authority prior to the commencement of that stage of the authorised development and which implements the requirements of the LEMP; or

(ii) where applicable, the Site Specific Plans or such changes to those plans as may be requested by the undertaker and agreed by the relevant planning authority in accordance with Requirement 17 (site specific plans);

(b) any written vegetation retention and removal plan submitted under sub-paragraph 8(1)(a)(i) in respect of the area of the South Downs National Park must also be in accordance with the SDNP Schedule or such changes to that Schedule as may be agreed by the South Downs National Park Authority as the relevant planning authority; and

(c) the reinstatement of all vegetation must be undertaken in accordance with a written plan of reinstatement to be prepared by the undertaker in accordance with paragraph (2).

(2) The written plan of reinstatement referred to in sub-paragraph (1)(c) must form part of the LEMP approved in accordance with Requirement 12 (landscape and ecological management plan).

(3) Any vegetation which is part of an approved reinstatement plan that, within a period of five years beginning with the date of planting, is removed, uprooted, destroyed, dies or (in the reasonable opinion of the relevant planning authority) becomes seriously damaged or defective, must be replaced with planting material of the same specification as that originally planted unless otherwise approved by the relevant planning authority and the landowner concerned.

Surface and foul water drainage

9.—(1) No stage of the authorised development must commence until, for that stage, a surface and foul water drainage plan for permanent works relevant to that stage, in accordance with the outline SFWDP, has been submitted to and approved by the sewerage and/or drainage authority or, where applicable, the Environment Agency and/or the Lead Local Flood Authority.

(2) The surface water drainage system for each stage must be constructed in accordance with the approved details.

(3) No discharge of water under article 18 (discharge of water) must be made until details of the location and rate of discharge have been submitted to and approved in writing by the relevant sewerage and/or drainage authority or, where applicable, the Environment Agency and/or the Lead Local Flood Authority.

Contaminated land and groundwater

10.—(1) In the event that contamination is found at any time when carrying out the authorised development it must be reported in writing to the relevant planning authority.

(2) Where contamination has been reported to the relevant planning authority in accordance with sub-paragraph (1), an investigation and risk assessment must be completed in accordance with a scheme to assess the nature and extent of any contamination on the part of the Order limits within which works are being carried out, whether or not that contamination originates on that part of the Order limits; and—

(a) the contents of that scheme are subject to the approval of the relevant planning authority; and

(b) that investigation and risk assessment must be undertaken in accordance with the approved scheme and a written report of the findings must be submitted to the relevant planning authority.

(3) Where remediation is required to control or prevent the release or potential release of contamination as a result of the works, a detailed remediation scheme must be prepared and submitted for the approval of the relevant planning authority.

(4) The approved remediation scheme must be carried out in accordance with its terms.

Archaeology

11.—(1) The authorised development must be undertaken in accordance with the archeological mitigation strategy.

(2) No stage of the authorised development must commence until a written scheme for the investigation of areas of archaeological interest relevant to that stage (if any) as identified in the archaeological mitigation strategy has been submitted to and approved by the relevant planning authority.

(3) The written scheme must reflect the measures set out in the archeological mitigation strategy.

(4) The written scheme must identify areas where archaeological works are required and the measures to be taken to protect, record or preserve any significant archaeological remains that may be found and must include an implementation timetable.

(5) Any archaeological works carried out under the scheme must be carried out by a suitably qualified and registered person or body and approved by the relevant planning authority.

(6) Any archaeological works must be carried out in accordance with the approved scheme.

Landscape and ecological management plan

12.—(1) Subject to sub-paragraph (3), no stage of the authorised development must commence until a LEMP, for that stage, in accordance with the outline LEMP and the SSSI working plans, has been submitted to and approved by the relevant planning authority.

(2) The LEMP must include an implementation timetable and must be carried out as approved.

(3) Sub-paragraph (1) only applies to those stages of the authorised development in respect of which any landscape and ecological management measures are to be implemented by the undertaker, as identified in the outline LEMP.

(4) The LEMP submitted for approval under sub-paragraph (1) must include the mitigation measures to be secured by the LEMP as set out in the HRA Commitments Schedule.

Protected species

13.—(1) In the event that any protected species which were not previously identified in the environmental statement are found at any time when carrying out the authorised development the undertaker must cease construction works and report it immediately to the Environmental Clerk of Works.

(2) The undertaker must prepare a written scheme for the protection and mitigation measures for any protected species that were not previously identified in the environmental statement.

(3) The undertaker must implement the written scheme prepared under sub-paragraph (2) 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.

Construction hours

14.—(1) Subject to sub-paragraphs (2), (3) and (4), construction works must only take place between 0800 and 1800 on weekdays (except Public and Bank Holidays) and Saturdays, except in the event of an emergency.

(2) In the event of an emergency, notification of that emergency must be given to the relevant planning authority and the relevant highway authority as soon as reasonably practicable.

(3) The following operations may where necessary continue or take place on an exceptional basis outside the working hours referred to in sub-paragraph (1)—

(a) trenchless construction techniques which cannot be interrupted;

(b) filling, testing, dewatering and drying;

(c) works required to mitigate delays to the construction of the authorised development due to extreme weather conditions; and

(d) commissioning of the pipeline works.

(4) Nothing in sub-paragraph (1) precludes—

(a) the receipt of oversize deliveries to site and the undertaking of non-intrusive activities;

(b) start-up and shut-down activities up to an hour either side of the core working hours and undertaken in compliance with the CEMP; and

(c) works on a traffic sensitive street where so directed by the relevant highway authority pursuant to a permit granted under the permit schemes and following consultation by the relevant highway authority with the relevant planning authority under the terms of such scheme.

(5) In this Requirement—

(a) “emergency” means a situation where, if the relevant action is not taken, there will be adverse health, safety, security or environmental consequences that in the reasonable opinion of the undertaker would outweigh the adverse effects to the public (whether individuals, classes or generally as the case may be) of taking that action; and

(b) “non-intrusive activities” means activities which would not create any discernible light, noise or vibration outside the Order limits.

Community engagement plan

15.—(1) No stage of the authorised development must commence until a CEP for that stage, in accordance with the outline CEP, has been submitted to and approved by the relevant planning authority.

(2) The CEP for each stage must be implemented as approved.

Commercial operation of the existing fuel pipeline

16.  The undertaker must ensure that the existing fuel pipeline is no longer capable of commercial operation once the pipeline works have been commissioned.

Site specific plans

17.  The authorised development must be undertaken in accordance with the Site Specific Plans, or with such changes to those plans as agreed by the relevant planning authority provided that any such changes must be—

(a) necessary or desirable to reflect a change or update in legislation, guidance or good practice; and

(b) must not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement and must not result in a variation to the measures set out in the HRA Commitments Schedule.

Removal of above-ground infrastructure

18.—(1) The undertaker must as soon as reasonably practicable following the abandonment of the authorised development, and in any event within six months of that date, remove any above-ground infrastructure, including for the avoidance of doubt, any aerial markers, cathodic protection test posts, cathodic protection rectifier cabinets and field boundary markers, to ground level.

(2) In this Requirement—

(a) “abandonment” means a final determination by the undertaker to permanently cease operating the authorised development; and

(b) “above-ground infrastructure” means any part of the authorised development located above the surface of the ground which is not required for the operation of any other infrastructure owned or operated by the undertaker.

Written approval

19.  Where under any of the Requirements the approval or agreement of the relevant planning authority or another person or authority is required, that approval or agreement must be given in writing.

Amendments to approved details

20.—(1) With respect to any Requirement which requires the authorised development to be carried out in accordance with the details approved by the relevant planning authority or another approval authority, the approved details must be carried out as approved unless an application for an amendment or variation is previously agreed, by the relevant planning authority or that other approval authority as specified in the relevant Requirement, in accordance with sub-paragraph (2) and in consultation with any body specified in the relevant Requirement.

(2) No amendments to or variations from the approved details may be approved if their likely significant effects on the environment are not assessed in the environmental statement, or have not been subject to such further assessment as the relevant planning authority or that other approval authority may require; provided that such approval must not be given except where it has been demonstrated that the subject-matter of the approval sought is unlikely to give rise to any materially new or materially different environmental effects in comparison with the authorised development as approved (as identified in the environmental statement).

(3) The approved details must be taken to include any amendments that may subsequently be approved by the relevant planning authority or that other approval authority.

(4) Subject to sub-paragraph (2), if a relevant planning authority which receives an application for approval of any amendments to approved details under sub-paragraph (1) fails to notify the undertaker of its decision before the end of the period of 42 days beginning with the date on which the application was made, it is deemed to have granted consent.

Anticipatory steps towards compliance with any requirement

21.  If, before the coming into force of this Order, the undertaker or any other person has taken any 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.

Register of requirements

22.—(1) The undertaker must, prior to the formal submission of any application for approval under Part 2 of this Schedule, establish and maintain in a form suitable for inspection by members of the public an online register of requirements contained in this Part of this Schedule that provide for approvals to be given by a relevant authority.

(2) The register must set out in relation to each requirement the status of the requirement for each stage of the authorised development, in terms of whether any approval to be given by a relevant authority has been applied for or given in relation to that stage, 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.

PART 2 PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under Requirements

23.—(1) Where an application has been made to a relevant authority for any consent, agreement or approval under a Requirement, the relevant authority must give notice to the undertaker of its decision on the application within a period of 42 days beginning with—

(a) where no further information is requested under Requirement 25, the day immediately following that on which the application is received by the authority;

(b) where further information is requested under Requirement 25, the day immediately following that on which further information has been supplied by the undertaker; or

(c) such longer period as may be agreed in writing by the undertaker and the relevant authority.

(2) In the event that the relevant authority does not determine an application within the period set out in sub-paragraph (1), the relevant authority is taken to have granted all parts of the application (without any condition or qualification) at the end of that period unless otherwise agreed in writing.

Applications involving multiple relevant authorities under Requirements

24.  Where an application is required to be made to more than one relevant authority for any single consent, agreement or approval under a Requirement, the undertaker may submit a request for comments in respect of its proposed application to each relevant authority and, where it does so, each relevant authority must provide its comments in writing on the proposed application within a period of 20 days beginning with the day immediately following that on which the request is received by the authority, so as to enable the undertaker to prepare a consolidated application to each relevant authority in respect of the consent, agreement or approval required by the Requirement.

Further information

25.—(1) Where an application has been made under Requirement 23 the relevant authority may, subject to complying with the requirements of this paragraph, request such reasonable further information from the undertaker as it considers is necessary to enable it to consider the application.

(2) If the relevant authority considers further information is necessary and the Requirement does not specify that consultation with a requirement consultee is required, the relevant authority must, within five business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(3) If the Requirement specifies that consultation with a requirement consultee is required, the relevant authority must issue the consultation to the requirement consultee within five business days of receipt of the application and must notify the undertaker in writing specifying any further information requested by the requirement consultee within five business days of receipt of such a request and in any event within 21 days of receipt of the application.

(4) If the relevant authority does not give the notification mentioned in sub-paragraphs (2) or (3) or otherwise fails to request any further information within the timescales provided for in this paragraph, it is deemed to have sufficient information to consider the application and is not thereafter entitled to request further information without the prior agreement of the undertaker.

Fees

26.—(1) Where an application or a request for comments is made to a relevant planning authority for any consent, agreement or approval required by a Requirement, a fee must be paid to the relevant planning authority as follows—

(a) such fee as may be prescribed (under sections 303 and 333(2A) of the 1990 Act for the discharge of conditions attached to a planning permission); or

(b) a fee of £97 per application or request.

(2) Any fee paid under this Schedule must be refunded to the undertaker within 35 days of—

(a) the application or request being rejected as invalidly made; or

(b) the relevant planning authority failing to determine the application or to provide written comments within 42 days from the date on which the application is received, unless within that period the undertaker agrees in writing that the fee may be retained by the relevant planning authority and credited in respect of a future application or a future request for comments.

Appeals

27.—(1) The undertaker may appeal if—

(a) the relevant authority refuses an application for–

(i) any consent, agreement or approval required by a Requirement or any document referred to in any Requirement; or

(ii) any other consent, agreement or approval required under this Order,

or grants it subject to conditions to which the undertaker objects;

(b) having received a request for further information under Requirement 25 the undertaker considers that either the whole or part of the specified information requested by the relevant authority is not necessary for consideration of the application; or

(c) having received any further information requested, the relevant authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

(2) The procedure for appeals is as follows—

(a) the undertaker must submit to the Secretary of State a copy of the application submitted to the relevant authority and any supporting documents which the undertaker may wish to provide (“the appeal documents”);

(b) the undertaker must on the same day provide copies of the appeal documents to the relevant authority and the requirement consultee (if applicable);

(c) within 28 days of receiving the appeals documents the Secretary of State must appoint a person to determine the appeal (“the appointed person”) and notify the appeal parties of the identity of the appointed person and the address to which all correspondence for the appointed person must be sent;

(d) the relevant authority and the requirement consultee (if applicable) may submit any written representations in respect of the appeal to the appointed person within 10 business days beginning with the first day immediately following the date on which the appeal parties are notified of the appointment of the appointed person and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

(e) the appeal parties may make any counter-submissions to the appointed person within 10 business days beginning with the first day immediately following the date of receipt of written representations pursuant to sub-paragraph (d) above; and

(f) the appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable.

(3) If the appointed person considers that further information is necessary to consider the appeal, the appointed person must as soon as practicable notify the appeal parties in writing specifying the further information required, the appeal party from whom the information is sought, and the date by which the information must be submitted.

(4) Any further information required pursuant to sub-paragraph (3) must be provided by the party from whom the information is sought to the appointed person and to the other appeal parties by the date specified by the appointed person.

(5) The appeal parties may submit written representations to the appointed person concerning matters contained in the further information.

(6) Any such representations must be submitted to the appointed person and made available to all appeal parties within 10 business days of the date mentioned in sub-paragraph (3).

Outcome of appeals

28.—(1) On an appeal under Requirement 27, the appointed person may—

(a) allow or dismiss the appeal; or

(b) reverse or vary any part of the decision of the relevant authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to the appointed person in the first instance.

(2) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the time limits prescribed, or set by the appointed person under Requirement 27.

(3) The appointed person may proceed to a decision even though no written representations have been made within those time limits if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.

(4) The decision of the appointed person on an appeal is final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review within 6 weeks of the date of the appointed person’s decision.

(5) Any consent, agreement or approval given by the appointed person pursuant to this Schedule is deemed to be an approval for the purpose of Part 1 of Schedule 2 (Requirements) as if it had been given by the relevant authority.

(6) The relevant authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) does not affect or invalidate the effect of the appointed person’s determination.

(7) Except where a direction is given pursuant to sub-paragraph (8) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

(8) On application by the relevant authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction as to the costs of the appeal parties and the terms on which it is made, the appointed person must have regard to the Planning Practice Guidance: Appeals (March 2014) or any circular or guidance which may from time to time replace it.

29.  In this Part—

“the appeal parties” means the relevant authority, the requirement consultee and the undertaker;

“relevant authority” means the body responsible for giving a consent, agreement or approval under this schedule; and

“requirement consultee” means any body named in a Requirement which is the subject of an appeal as a body to be consulted by the relevant authority in discharging that Requirement.

(1)

S.I. 2017/1012.

(2)

1981 c. 69.