The Norfolk Offshore Wind Farm Order 2003

PART I PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Norfolk Offshore Wind Farm Order 2003 and shall come into force on 21st November 2003.

Interpretation

2.—(1) In this Order—

“authorised works” means the scheduled works and any other works or facilities authorised by this Order;

“Civil Aviation Authority” means the body corporate called the Civil Aviation Authority constituted by the Civil Aviation Act 1982;

“the level of high water” means the level of mean high water springs;

“the limits of deviation” in relation to a work, means the limits of deviation related to that work which are shown on the works plans;

“maintain” includes inspect, repair, adjust, alter, relay, remove, reconstruct and replace; and “maintenance” shall be construed accordingly;

“the inter-turbine cables” means the cables referred to in paragraph 1(b) of Schedule 1 to this Order;

“the marine feeder cables” means the cables referred to in paragraph 1(c) of Schedule 1 to this Order;

“notice to mariners” includes any notice to mariners which may be issued to mariners by the Admiralty, Trinity House, Queen’s Harbourmasters, government departments and harbour and pilotage authorities;

“the scheduled works” means the works specified in Schedule 1 to this Order;

“the sections” means the sections certified by the Secretary of State as the sections for the purposes of this Order;

“Trinity House” means the Corporation of Trinity House of Deptford Strond;

“the undertaker” means Norfolk Offshore Wind Limited or any person to whom the powers conferred by this Order are transferred in an agreement pursuant to article 22;

“vessel” means a ship, boat, raft or water craft of any description and includes non-displacement craft, seaplanes and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily) and a hovercraft or other amphibious vehicle;

“the wind farm site” means an area enclosed by an imaginary line drawn between wind turbines A1, C1, C10, A10 and A1;

“wind turbine” means a wind turbine referred to in paragraph 1(a) of Schedule 1 to this Order; and

“the works plans” means the plans certified by the Secretary of State as the works plans for the purposes of this Order.

(2) All directions, distances, lengths and points stated in any description of works or powers shall be construed as if the words “or thereabouts” were inserted after each such direction, distance, length and point.

PART II WORKS

Principal powers

Power to construct and maintain works

3.—(1) The undertaker may construct and maintain the scheduled works.

(2) Subject to article 4, the scheduled works shall be constructed in the lines or situations shown on the works plans and in accordance with the levels shown on the sections.

(3) The undertaker may, within the limits of deviation for the scheduled works, carry out, provide and maintain such of the following works and facilities as may be necessary or expedient for the purposes of, in connection with, or in consequence of, the construction, operation or maintenance of the scheduled works, namely—

(a) temporary or permanent landing places, jetties, or moorings or other means of accommodating vessels in the construction, maintenance and operation of the scheduled works;

(b) buoys, beacons, fenders and other navigational warning or ship impact protection works; and

(c) such other works, apparatus (including cables), plant and machinery of whatever description as may be necessary or expedient.

Power to deviate

(4)—(1) In constructing or maintaining any of the scheduled works, the undertaker may—

(a) deviate laterally from the lines or situations shown on the works plans within the limits of deviation and in particular the marine feeder cables may commence by a connection within the limits of deviation with any of the wind turbines, and the inter-turbine cables may connect within the limits of deviation with any of the wind turbines; and

(b) deviate vertically from the levels shown on the sections—

(i) in respect of the top of the wind turbines and subject to paragraph (2), to any extent not exceeding 20 metres downwards;

(ii) in respect of the depth of the piled foundations of the wind turbines into the seabed, to any extent upwards and to any extent not exceeding 40 metres downwards and in respect of the tripod superstructures of the foundations to any extent not exceeding 5 metres upwards and to any extent downwards;

(iii) in respect of the inter-turbine cables to any extent not exceeding 0.2 metres downwards and 0.5 metres upwards; and

(iv) in respect of the marine feeder cables to any extent not exceeding 0.5 metres downwards and 1 metre upwards.

(2) There shall be a minimum distance of 25 metres between the lowest point of the rotating blades of the wind turbines and the level of high water.

Protection of navigation and air traffic and control of noise

Works not to be executed without approval of the Secretary of State

5.—(1) No authorised works shall be constructed or altered except in accordance with plans and sections approved by the Secretary of State before the work is begun.

(2) If an authorised work is constructed or altered in contravention of this article or any condition or restriction imposed under this article—

(a) the Secretary of State may by notice in writing require the undertaker at its own expense to remove the authorised work or any part of it and restore the site to a safe and proper condition; and

(b) if it appears to the Secretary of State urgently necessary so to do, she may remove the authorised work or part of it and restore the site to its former condition and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the undertaker.

Provision against danger to navigation

6.  In case of injury to, or destruction or decay of, an authorised work or any part thereof the undertaker shall as soon as reasonably practicable notify Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may from time to time direct.

Abatement of works abandoned or decayed

7.—(1) Where an authorised work is abandoned, or suffered to fall into decay, the Secretary of State may be notice in writing, and following consultation with the undertaker, require the undertaker at its own expense either to repair and restore the work or any part of it, or to remove the work and restore the site of the work to a safe and proper condition, to such an extent and within such limits as may be specified in the notice.

(2) The undertaker shall remove from the site any individual wind turbine generator which ceases to generate electricity for more than 6 months unless such cessation is due to maintenance, repair or replacement or the Secretary of State has given prior written approval to the generator remaining on the site.

(3) At least 3 months before the scheduled works cease to generate electricity or the termination of the lease from the Crown Estate Commissioners relating to the development (without a new lease being granted), whichever is the soonest, there shall be submitted to, approved in writing by, and deposited with the Secretary of State a decommissioning plan for the removal, restoration and aftercare of the scheduled works, and the restoration and aftercare of the site having regard to minimising the environmental impact. Such a plan shall include a timetable for the removal of the scheduled works and take into account any applicable legislative requirements, technology and best practice at the time of decommissioning.

(4) Unless otherwise agreed with the Secretary of State the undertaker shall, following approval of the decommissioning plan pursuant to paragraph (3), arrange for the scheduled works to be decommissioned and the site restored in accordance with the plan, and within one month of completion of the work, provide the Secretary of State with written confirmation that it has been completed.

(5) Unless otherwise agreed by the Secretary of State, within 6 months of completion of the decommissioning of the scheduled works pursuant to the timetable specified in paragraph (4) the undertaker shall report on the aftercare of the site pursuant to paragraph (3), and at 6 monthly intervals thereafter until the completion of the aftercare period.

(6) If the undertaker ceases to operate the development without submitting a decommissioning plan pursuant to paragraph (3) the Secretary of State may take such steps as she considers fit to decommission the scheduled works and expenditure incurred in doing so shall be recoverable from the undertaker.

Survey of works

8.—(1) The Secretary of State may at any time, if she deems expedient, order a survey and examination of an authorised work or of the site upon which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in any such survey and examination shall be recoverable from the undertaker.

(2) Subject to paragraph (3), 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.

(3) Paragraph (2) shall not apply in an emergency.

Permanent lights or buoys near works and colour and other markings

9.—(1) After the completion of an authorised work the undertaker shall exhibit such lights from sunset to sunrise, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.

(2) The undertaker shall exhibit every night from sunset to sunrise lights for the prevention of danger to aircraft of a shape, colour and character as directed by the Civil Aviation Authority.

(3) Unless otherwise directed by the Secretary of State, the undertaker shall ensure that every wind turbine 12.8m above the level of high water and all nacelles and blades are painted grey (colour code RAL 7035).

Lights on works during construction

10.  The undertaker shall at or near an authorised work during the whole time of the construction, alteration, replacement, or reconstruction of the work exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.

Active safety management system

11.—(1) The wind turbines shall be operated in accordance with an active safety management system for the purpose of minimising the risk of vessels colliding with the towers or rotating blades of the wind turbines and facilitating search and rescue activities.

(2) The details of the active safety management system shall be approved by the Maritime and Coastguard Agency but the system shall include—

(a) provision for each wind turbine to be marked by day and night with clearly visible identification systems;

(b) provision for communication procedures between mariners in distress, the Maritime and Coastguard Agency and the central control room for the operation of the wind turbines when a vessel is in distress;

(c) provision for the immediate shutting down of one or more of the wind turbines at the request of the Maritime and Coastguard Agency in a position which secures the maximum clearance between the lowest point of the blades and the water level; and

(d) provision for testing the emergency procedures at times and in a manner reasonably required by the Maritime and Coastguard Agency.

Noise and vibration

12.—(1) Unless otherwise directed by the Secretary of State, the undertaker—

(a) shall comply with British Standard 5228 (Noise and Vibration Control on Construction and Open Sites) Part 1 and 2: 1997 and Part 4: 1992 in respect of all activities carried out during the construction or decommissioning of the authorised works; and

(b) shall obtain, before the commencement of such activities, the approval by North Norfolk District Council of maximum levels of day time and night time noise to be generated by such activities, and shall ensure that such levels are not exceeded.

(2) Unless otherwise approved in writing by the Secretary of State, the undertaker shall ensure that the rating level of the noise generated by the operation of the wind turbines does not exceed 35dB LA90, up to a wind speed of 10 metres per second, when measured in accordance with the guidance contained in “The Assessment and Rating of Noise from Wind Farms” (ETSU-R-1997), measured in free field conditions at a point 1.2 metres above ground level at any residential property.

Execution by Secretary of State of works in default

13.  If, on the expiration of 30 days from the date when a notice under article 5(2)(a) or 7(1) is served upon the undertaker it has failed, without reasonable excuse, to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the undertaker.

Offences

14.  If the undertaker, without reasonable excuse, fails—

(a) to comply with a direction given under articles 6, 9(1) or (2), 10 or paragraph 3 of Schedule 3;

(b) to comply with the requirements of articles 7(3), (4) or (5), 9(3), 12 or paragraph 4(b) of Schedule 3;

(c) to give notification as required by article 6; or

(d) to operate the wind turbines in accordance with article 11;

it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

PART III MISCELLANEOUS AND GENERAL

Power to operate and use works

15.  The undertaker may operate and use the authorised works as a system for generating and transmitting electricity.

Disapplication of section 36 of the Electricity Act 1989

16.  The provisions of section 36 of the Electricity Act 1989 shall not apply in relation to the authorised works.

Obstruction and misuse of works

17.  Any person who without reasonable excuse—

(a) obstructs another person from constructing or maintaining any of the authorised works under the powers conferred by this Order;

(b) makes fast to any part of the authorised works; or

(c) in any other way interferes with any of the authorised works or their operation;

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Temporary exclusion zones

18.—(1) Subject to paragraph (5) any person who, without reasonable excuse during the construction, replacement, removal or decommissioning of any of the authorised works navigates a vessel within an area extending 500 metres from any part of that work shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) An exclusion zone shall not come into effect until—

(a) 7 days after the publication of a notice to mariners specifying the location and extent of the exclusion zone, the date of its commencement and its intended duration; and

(b) the undertaker has taken such other steps as the Secretary of State may require to notify shipping of the proposed exclusion zone.

(3) The exclusion zone shall terminate on completion of the construction, replacement, removal or decommissioning, (as the case may be) of the authorised works.

(4) As soon as reasonably practicable following the termination of an exclusion zone the undertaker shall—

(a) publish notice of the termination by means of a notice to mariners; and

(b) take such other steps as the Secretary of State may require to notify shipping of the termination of the exclusion zone.

(5) Paragraph (1) shall not apply to a person navigating a vessel for the purpose of, or in connection with, the construction, maintenance or operation of the authorised works.

(6) In this article “exclusion zone” means an area in which navigation is excluded under paragraph (1);

For protection of Environment Agency

19.  Schedule 2 to this Order shall have effect.

For protection of Cromer Lighthouse

20.  Schedule 3 to this Order shall have effect.

Certification of plans etc.

21.  The undertaker shall, as soon as practicable after the making of this Order, submit copies of the sections and the works plans to the Secretary of State for certification that they are true copies, respectively, of the sections and the works plans referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Transfer of powers

22.—(1) The undertaker may enter into, and carry into effect, agreements for the transfer to another person of all or any of the powers conferred on the undertaker by this Order.

(2) The exercise of any powers of this Order by any other person in accordance with an agreement under paragraph (1) shall be subject to the same obligations and liabilities under this Order as would apply if that power were exercised by the undertaker.

(3) Not later than 21 days after entering into any such agreement the undertaker shall give written notice to the Secretary of State and to Trinity House stating the name and address of the person to whom the powers are being transferred and the date when the transfer is to take effect (which shall not be earlier than the date of the receipt of the notice by whichever of the Secretary of State or Trinity House is the last to receive notice).

Crown rights

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

(a) belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners without the consent in writing of those Commissioners; or

(b) 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.

(2) A consent under paragraph (1) may be given unconditionally or subject to such conditions or upon such terms as may be considered necessary or appropriate.

Signed by authority of the Secretary of State for Trade and Industry

Jim Campbell,

Director, Licensing and Consents Unit

31st October 2003