The Swansea Bay Tidal Generating Station Order 2015

PART 1 Preliminary

Citation and commencement

1.  This Order may be cited as the Swansea Bay Tidal Generating Station Order 2015 and comes into force on 30th 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);

“2004 Act” means the Energy Act 2004(6);

“2008 Act” means the Planning Act 2008;

“2009 Act” means the Marine and Coastal Access Act 2009(7);

“AB Ports” means Associated British Ports(8) (company number ZC000195) being the harbour authority for the Ports of Swansea and Port Talbot;

“access and public rights of way plans” means the plans certified by the Secretary of State as the access and public rights of way plans for the purposes of this Order;

“authorised development” means the works set out in Parts 1A, 1B and 2 of Schedule 1 (authorised development, and ancillary and necessary works);

“book of reference” means the book of reference certified by the Secretary of State 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;

“carriageway” has the same meaning as in the 1980 Act;

“commence” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act) forming part of the authorised development other than operations consisting of site clearance, demolition work, investigations for the purpose of assessing ground conditions, the diversion and laying of services, the erection of any temporary means of enclosure and the temporary display of site notices or advertisements; and “commencement” must be construed accordingly;

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

“demolition plan” means the plans certified as the demolition plan by the Secretary of State for the purposes of this Order;

“design and access statement” means the document with that title submitted with the application for this Order and certified as the design and access statement by the Secretary of State for the purposes of this Order;

“environmental statement” means the environmental statement submitted with the application for this Order and certified as the environmental statement by the Secretary of State for the purposes of this Order;

“harbour authority”, in relation to a harbour, means the harbour authority that has a statutory duty to manage, maintain or improve the harbour;

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

“kV” means kilovolts;

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

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

“local planning authority” has the same meaning as in the 1990 Act(9);

“maintain” includes inspect, repair, refurbish, replace, adjust, alter and also includes (in respect of a constituent part of a work but not the whole of a work) remove, clear, refurbish, reconstruct, decommission, demolish, replace and improve any part of the authorised development, but does not include any activity (other than an activity authorised by or under this Order) that is “EIA development” as defined in the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009(10); and “maintenance” must be construed accordingly;

“MW” means megawatts;

“Natural Resources Wales” means the Natural Resources Body for Wales;

“Order land” means the land identified by plot numbers on the land plans that is within the Order limits and described in the book of reference;

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

“owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981(11);

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

“relevant planning authority” means the City and County of Swansea Council in relation to land for which it is the local planning authority for the time being under the 1990 Act and Neath Port Talbot County Borough Council in relation to land for which it is the local planning authority for the time being under the 1990 Act; and “relevant planning authorities” means both of them;

“Requirement” means a Requirement set out in Part 3 (Requirements) of Schedule 1; and a reference to a numbered Requirement is a reference to the Requirement set out in the paragraph of the same number in that Part;

“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 2 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;

“tidal work” means so much of any work authorised by this Order as is on, under or over tidal waters or tidal lands below the level of high water;

“Tribunal” means the Lands Chamber of the Upper Tribunal;

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

“undertaker” has the meaning given in article 6 (benefit of Order);

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

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

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

(4) Grid references in this Order are references to points on the Ordnance Survey National Grid.

(5) In this Order, “includes” must be construed without limitation.

PART 2 Principal powers

Development consent, etc. granted by Order

3.—(1) Subject to the provisions of this Order and to the Requirements in Part 3 of Schedule 1, the undertaker is granted development consent for the authorised development.

(2) The authorised development must be constructed—

(a) within the Order limits;

(b) in the lines or situations shown on the works plans;

(c) in respect of the limits of deviation applicable to specific works as shown on the works plans, within those limits of deviation.

(3) In constructing or maintaining the authorised development, the undertaker may—

(a) deviate laterally from the lines or situations shown on the works plans within the limits of deviation, subject to the maximum dimensions set out in Part 2 (dimensions of structures) of Schedule 1;

(b) deviate vertically from the levels shown on works plans 2.2.11A to 2.2.16A (the marine works seawall sections) to any extent downwards as may be found necessary or convenient.

(4) In the case of conflict between the works plans or the plans or drawings set out in Schedule 7 (documents to be certified) and the works as set out in Parts 1A and 1B of Schedule 1 or the maximum dimensions set out in Part 2 of that Schedule, the description of the works in Schedule 1 are to prevail, and the maximum dimensions must not exceed those set out in Part 2 of that Schedule.

Maintenance of authorised development

4.—(1) The undertaker may at any time maintain the authorised development, except to the extent that this Order, or any scheme or agreement made under this Order, provides otherwise.

(2) This article authorises the maintenance of the authorised development within the Order limits only.

Operation of generating station, etc.

5.—(1) The undertaker is 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 to authorise the operation of a generating station.

Benefit of Order

6.—(1) Subject to paragraph (2), the relevant provisions are for the benefit of the undertaker only.

(2) 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 relevant provisions 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 relevant provisions and such related statutory rights as may be agreed between the undertaker and the lessee.

(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (2) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by Tidal Lagoon (Swansea Bay) plc(12) (company number 08141301).

(4) In this Order, “undertaker” means—

(a) in relation to a relevant provision or related statutory rights, Tidal Lagoon (Swansea Bay) plc or, where the benefit of a relevant provision or related statutory rights are transferred or granted under paragraph (2), any person who for the time being has the benefit of the provision or related statutory rights;

(b) in the case of any other provision, Tidal Lagoon (Swansea Bay) plc or any other person who for the time being has the benefit of the provision under section 156 (benefit or order granting development consent) of the 2008 Act.

(5) In this article, “relevant provision” means any of the following—

(a) articles 9 to 11;

(b) articles 13 to 37;

(c) article 47.

Guarantees in respect of payment of compensation, etc.

7.—(1) The authorised development must not be commenced, and the undertaker must not exercise the powers in articles 24 to 37, until—

(a) subject to paragraph (3), security of £10.5 million has been provided in respect of the liabilities of the undertaker to pay compensation under this Order; and

(b) the City and County of Swansea Council has approved the security in writing.

(2) The security referred to in paragraph (1) may include, without limitation, any 1 or more of the following—

(a) the deposit of a cash sum;

(b) a payment into court;

(c) an escrow account;

(d) a bond provided by a financial institution;

(e) an insurance policy;

(f) a guarantee by a person of sufficient financial standing (other than the undertaker).

(3) The City and County of Swansea Council may agree to the substitution of a different sum to that of £10.5 million referred to in paragraph (1), having regard to the liabilities of the undertaker to pay compensation under this Order existing at the time of the approval referred to in that paragraph.

(4) The authorised development must not be commenced until—

(a) the undertaker has provided to the City and County of Swansea Council written evidence (which may comprise a written certificate given by a professional firm) of—

(i) the construction contracts in respect of Works No. 1a, 1b and 2a and a contract for the procurement of hydroturbines for installation in Work No. 2a; and

(ii) financial provision to secure the delivery of the works and procurement referred to in paragraph ((i); and

(b) the City and County of Swansea Council has given written confirmation that it is satisfied that such financial provision is sufficient.

(5) The undertaker must pay to the City and County of Swansea Council the reasonable and proper costs, charges and expenses that the City and County of Swansea Council may reasonably incur in obtaining legal or financial advice in respect of giving the confirmation of satisfaction referred to in paragraph (3)(b).

(6) The City and County of Swansea Council is to have no liability to pay compensation in respect of the compulsory acquisition of land or otherwise under this Order.

Defence to proceedings in respect of statutory nuisance

8.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(13) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within section 79(1) (d), (e), (fb), (g), (ga) or (h) of that Act, no order is to be made, and no fine is to be imposed, under section 82(2) of that Act if the defendant shows that the nuisance—

(a) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and is attributable to the carrying out of the authorised development 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), of the Control of Pollution Act 1974(14);

(b) is a consequence of the construction or maintenance of the authorised development and cannot reasonably be avoided;

(c) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and is attributable to the use of the authorised development in accordance with a noise monitoring scheme agreed with the relevant planning authority as described in Requirement 18 (monitoring of noise during construction); or

(d) is a consequence of the use of the authorised development and cannot reasonably be avoided.

(2) Section 61(9) of the Control of Pollution Act 1974 (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) does not 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 development.

PART 3 Streets

Street works

9.—(1) The undertaker may, for the purposes of constructing the authorised development, enter on so much of any of the streets set out in Schedule 2 (streets subject to street works) as is within the Order limits between the numbered and lettered points shown on the access and public rights of way plans and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street;

(c) place apparatus in the street;

(d) maintain apparatus in the street or change its position; and

(e) execute any works required for or incidental to any works referred to in sub-paragraphs (a) to (d).

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) Sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1).

(4) Nothing in this article authorises the breaking up or opening of the carriageway of the A483 Fabian Way without the prior written approval of the local highway authority.

(5) In this article, “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Temporary stopping up of streets

10.—(1) Subject to paragraph (4), the undertaker, for the purposes of constructing the authorised development, may temporarily stop up, alter or divert any street and may for any reasonable time—

(a) divert the traffic from the street; and

(b) prevent persons from passing along the street.

(2) Where the undertaker prevents persons from passing along the street, the undertaker must provide reasonable access for pedestrians and vehicular traffic going to or from premises abutting or served by a street affected by the temporary stopping up, alteration or diversion of a street under this article if there would otherwise be no such access.

(3) Without limiting paragraph (1), the undertaker may temporarily stop up, alter or divert the streets set out in columns (1) and (2) of Schedule 3 (streets to be temporarily stopped up) to the extent specified, by reference to the letters and numbers shown on the access and public rights of way plans, in column (3) of that Schedule.

(4) The undertaker must not temporarily stop up, alter or divert—

(a) the streets set out as mentioned in paragraph (3) without first consulting the local highway authority; and

(b) any other street without the consent of the local highway authority, which may attach reasonable conditions to any consent including as to notice to be given.

(5) Any person who suffers loss by the 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.

(6) Nothing in this article authorises the stopping up of the carriageway of the A483 Fabian Way without the prior written approval of the highway authorities responsible for the maintenance and control of that highway.

Access to works

11.  The undertaker may, for the purposes of carrying out the authorised development,—

(a) form and lay out means of access, or improve existing means of access, in the locations set out in columns (1) and (2) of Schedule 4 (access to works); and

(b) with the approval of the relevant planning authority after consultation with the highway authority, form and lay out such other means of access or improve existing means of access at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

Agreements with street authorities

12.—(1) A street authority and the undertaker may enter into agreements with respect to—

(a) any stopping up, alteration or diversion of a street authorised by this Order; or

(b) the carrying out in the street of any of the works referred to in article 9(1) (street works).

(2) Such an agreement may, without limiting paragraph (1),—

(a) make provision for the street authority to carry out any function under this Order that relates to the street in question;

(b) include an agreement between the undertaker and the street authority specifying a reasonable time for the completion of the works; and

(c) contain such terms as to payment and otherwise as the parties consider appropriate.

PART 4 Supplemental powers

Discharge of water

13.—(1) Subject to Requirements 5 (Construction Environmental Management Plan), 6 (Adaptive Environmental Management Plan) and 11 (operational surface and foul water drainage), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out, operation or maintenance of the authorised development 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) must be determined as if it were a dispute under section 106 of the Water Industry Act 1991(15) (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 the relevant drainage body(16); and such consent may be given subject to such terms and conditions as those persons may reasonably impose, but must not 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 must not 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.

(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 any groundwater activity or water discharge activity within the meaning of the Environmental Permitting (England and Wales) Regulations 2010(17).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain that belongs to Natural Resources Wales, an internal drainage board, a local authority or a sewerage undertaker(18);

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(19) have the same meaning as in that Act.

Protective work to buildings

14.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or

(b) after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised, the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purposes of carrying out protective works under this article to a building, the undertaker may (subject to paragraphs (5) and (6))—

(a) enter the building and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land that is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (1) to carry out protective works to a building;

(b) a right under paragraph (3) to enter a building and land within its curtilage;

(c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a right under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), the notice must specify the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (5)(c) or (5)(d) the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 50 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.

(8) Where—

(a) protective works are carried out under this article to a building; and

(b) within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act (further provision as to compensation for injurious affection).

(10) Any compensation payable under paragraph (7) or (8) must be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(11) In this article, “protective works”, in relation to a building, means—

(a) underpinning, strengthening and any other works, the purpose of which is to prevent damage that may be caused to the building by the carrying out, maintenance or use of the authorised development; and

(b) any works, the purpose of which is to remedy any damage that has been caused to the building by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate land

15.—(1) The undertaker may for the purposes of this Order enter on any land within the Order limits or that may be affected by the authorised development and—

(a) survey or investigate the land;

(b) without limiting 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 limiting 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 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 the 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 must not 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.

PART 5 Tidal works

Application of Marine and Coastal Access Act 2009

16.—(1) Articles 17 to 19 are subject to the provisions of Part 4 of the 2009 Act and any licence granted pursuant to that Part and are without prejudice to the powers of the Welsh Ministers under that Part.

(2) No provision of this Order obviates the need to obtain a marine licence under Part 4 of the 2009 Act or to comply with the conditions of any marine licence.

Right to dredge

17.—(1) The undertaker may, for the purposes of constructing, operating and maintaining the authorised development, from time to time deepen, dredge, scour, cleanse, alter and improve so much of the bed, shores and channels of the land within the Order limits as adjoin or are near to the authorised development and may use, appropriate or dispose of the materials (other than wreck within the meaning of Part 9 of the Merchant Shipping Act 1995(20)) from time to time dredged by it.

(2) No such materials are to be laid down or deposited in contravention of the provisions of any enactment as respects the disposal of waste or dredged arisings.

(3) The undertaker must consult with AB Ports before exercising the rights conferred on it by this article.

(4) This provision does not confer any power on the undertaker to deposit dredged arisings in any place and is subject always to the provisions of article 16 of this Order.

Abatement of tidal works abandoned or destroyed

18.—(1) Where a tidal work is abandoned, or falls into decay, the Welsh Ministers may by notice in writing require the undertaker at its own expense either to repair and restore that work or any part, or to remove that work and restore the site to its proper condition, to such an extent and within such limits as the Welsh Ministers think proper.

(2) Where a work consisting partly of a tidal work and partly of works on or over the land above the level of high water is abandoned or falls into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Welsh Ministers may include that part of the work, or any portion of it, in any notice under this article.

(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 Welsh Ministers may take whatever steps the Welsh Ministers consider appropriate to achieve the result required by the notice; and any expenditure incurred by the Welsh Ministers is to be recoverable from the undertaker.

Survey of tidal works

19.—(1) If the Welsh Ministers or the harbour authority for the Port of Swansea or Neath consider it expedient to do so, the Welsh Ministers may order, or the harbour authority may undertake, a survey and examination of a tidal work or of the site on which it is proposed to construct the work, and any expenditure incurred by the Welsh Ministers or the harbour authority in any such survey and examination is recoverable from the undertaker.

(2) Where the Welsh Ministers or the harbour authority for the Port of Swansea or Neath propose to order or undertake a survey and examination referred to in paragraph (1), the Welsh Ministers or the harbour authority must do so in compliance with such reasonable stipulations relating to health, safety, security or confidentiality as the undertaker may impose.

Lights on tidal works, etc. during construction

20.  The undertaker must at or near—

(a) a tidal work, including any temporary work; amd

(b) any plant, equipment or other obstruction placed in connection with the authorised development within the area of seaward construction activity,

during the whole time of construction, reconstruction, extension, enlargement, replacement or relaying, exhibit every night from sunset to sunrise and in periods of restricted visibility such lights, if any, and take such other steps for the prevention of danger to navigation as the Welsh Ministers and the harbour authority for the Port of Swansea or Neath may from time to time direct.

Provision against danger to navigation

21.  In case of damage to, or destruction or decay of, a tidal work or any part of it, the undertaker must as soon as reasonably practicable notify Trinity House and the harbour authorities for the Ports of Swansea and Neath and must lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House or the harbour authority for the Port of Swansea or Neath within its area may from time to time direct.

Permanent lights on tidal works

22.  After the completion of a tidal work, the undertaker must at the outer extremity of it exhibit every night from sunset to sunrise and in periods of restricted visibility such lights, if any, and must take such steps, if any, for the prevention of danger to navigation as Trinity House or the harbour authority for the Port of Swansea or Neath within its area may from time to time direct.

Safety of navigation

23.—(1) No marine works comprised in the authorised development are to be commenced until a scheme to secure safety of navigation has been submitted to and approved in writing by the harbour authority for the Port of Swansea in consultation with Trinity House, the Maritime and Coastguard Agency, the harbour authority for the Port of Neath and the City and County of Swansea Council.

(2) The approved scheme must make provision for—

(a) the promulgation of notice to mariners;

(b) additional aids to navigation;

(c) retention of safety vessels during construction;

(d) the installation of protective dolphin piles comprised in Work No. 2c;

(e) the relocation of any pilot station affected by the authorised development;

(f) reasonable marine access to be maintained into and out of the rivers Neath and Tawe including for small craft at high tides;

(g) the circumstances where Her Majesty’s Coastguard should be notified of any matter; and

(h) an emergency response and co-operation plan.

(3) The authorised development is to be carried out in accordance with the approved scheme except to the extent that a variation to the approved scheme is agreed by the harbour authority for the Port of Swansea after consulting the persons mentioned in paragraph (1).

PART 6 Powers of acquisition

Compulsory acquisition of land

24.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development or to facilitate it, or as is incidental to it, excluding the land identified by the following plot numbers on the land plans—

(a) 01135;

(b) 02055;

(c) 04080;

(d) 04085;

(e) 04090;

(f) 04095;

(g) 04100;

(h) 05035.

(2) From the date on which a compulsory acquisition notice is served or the date on which the Order land, or any part of it, is vested in the undertaker, whichever is the later, the land or the part of it that 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 of any private right under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) This article is subject to—

(a) article 26 (private rights of way);

(b) article 28 (compulsory acquisition of rights);

(c) article 30 (acquisition of subsoil only);

(d) article 32 (rights under or over streets);

(e) article 33 (temporary use of land for carrying out authorised development);

(f) article 35 (protection of Coal Authority);

(g) article 53 (Crown rights).

Power to override easements and other rights

25.—(1) Any authorised activity that takes place within the Order limits (whether the activity is undertaken by the undertaker, by its successor pursuant to a transfer or lease under article 6 (benefit of Order), by any person deriving title under them or by any of their servants or agents) may be undertaken, notwithstanding that it involves—

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) In this article “authorised activity” means—

(a) the erection, construction, carrying out or maintenance of any building, work or other thing on land or over, in or under tidal waters or tidal lands; or

(b) the use of any land, tidal waters or tidal lands,

that is authorised under any other provision of this Order and done in accordance with its terms.

(3) The interests and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(4) Where any interest or right to which this article applies is interfered with, or any restriction as to the user of land arising by virtue of a contract breached, by any authorised activity in accordance with the terms of this article, the interest, right or restriction is abrogated or discharged at the time that the interference or breach in respect of the authorised activity in question commences, but only to the extent required for, or necessary or incidental to, the authorised development.

(5) In respect of any interference, breach, abrogation or discharge in pursuance of this article, compensation is payable in accordance with section 152 of the 2008 Act (compensation in case where no right to claim in nuisance), to be determined in case of dispute under Part 1 of the 1961 Act.

(6) Nothing in this article is to be construed as authorising any act or omission on the part of any person that is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1).

(7) This article does not apply—

(a) in respect of any agreement, restriction, obligation or other provision contained in a deed made pursuant to section 106 of the 1990 Act or section 278 of the 1980 Act; or

(b) where any agreement expressly excludes its application.

(8) This article does not apply in relation to a “relevant right” within the meaning of section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.).

Private rights of way

26.—(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, but only to the extent required for or necessary or incidental to the authorised development.

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

(3) Subject to the provisions of this article, all private rights of way over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(4) 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.

(5) This article does not apply in relation to any right of way that is a “relevant right” within the meaning of section 138 of the 2008 Act (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.).

(6) 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;

(iii) the undertaker’s entry onto it; or

(iv) the undertaker taking temporary possession of it,

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

(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.

(7) If an agreement 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,

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

Time limit for exercise of authority to acquire land compulsorily

27.—(1) After the end of the period of 5 years beginning on the day on which this Order comes into force—

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

(b) no declaration may be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981, as applied by article 29 (application of Compulsory Purchase (Vesting Declarations) Act 1981)(21).

(2) The authority conferred by article 33 (temporary use of land for carrying out authorised development) ceases at the end of the period referred to in paragraph (1), but nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights

28.—(1) The undertaker may, for the purpose set out in the book of reference, acquire compulsorily the existing rights, and create and acquire compulsorily the new rights, described in the book of reference and shown on the land plans excluding—

(a) rights described as temporary rights in the book of reference;

(b) rights over land identified by the plot numbers on the land plans referred to in article 24(1) (compulsory acquisition of land).

(2) From the date on which a compulsory acquisition notice is served or the date on which a new right is vested in the undertaker, whichever is the later, the land over which the new right is acquired is discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of the new right.

(3) Subject to section 8 of the 1965 Act (as substituted by article 31 (acquisition of part of certain properties)), where the undertaker acquires an existing right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

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

(5) Schedule 5 (modification of compensation and compulsory purchase enactments for creation of new rights) has effect for the purpose of modifying the enactments referred to in that Schedule in their application in relation to the compulsory acquisition under this Order of a right over land by the creation of a new right.

Application of Compulsory Purchase (Vesting Declarations) Act 1981

29.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(22) applies as if this Order were a compulsory purchase order.

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

(3) In section 3 (preliminary notices), omit subsection (1) and substitute—

“(1) Before making a declaration under section 4 with respect to any land subject to a compulsory purchase order, the acquiring authority must 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)—

(a) omit “(1)(b)” and substitute “(1)”; and

(b) after “given” insert “and published”.

(5) In that section, omit subsections (5) and (6) and substitute—

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

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

(b) the person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds 1 month.”

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

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

(b) omit subsection (2).

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

(8) References to the 1965 Act in the Compulsory Purchase (Vesting Declarations) Act 1981 must 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.

Acquisition of subsoil only

30.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of the land referred to in article 24(1) (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of land under paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) Paragraph (2) does not prevent article 31 (acquisition of part of certain properties) from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Acquisition of part of certain properties

31.—(1) This article applies instead of section 8(1) of the 1965 Act (other provisions as to divided land) (as applied by section 125 of the 2008 Act) where—

(a) a notice to treat is served on a person (the “owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden (the “land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat which states that the owner is willing and able to sell the whole (the “land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner is required to sell only the land subject to the notice to treat must be referred to the Tribunal unless the undertaker agrees to take the land subject to the counter-notice.

(5) If on such a reference the Tribunal determines that the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must sell the land subject to the notice to treat.

(6) If on such a reference the Tribunal determines that only part of the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) where the land subject to the notice to treat consists of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice is to be deemed to be a notice to treat for that part.

(7) If on such a reference the Tribunal determines that—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land that the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the Tribunal determines that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is to be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) Where, by reason of a determination by the Tribunal under this article, a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, in that event, must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the Tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or manufactory or land consisting of a house with a park or garden, the undertaker must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Rights under or over streets

32.—(1) The undertaker may enter upon and appropriate so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or air-space for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in, on or under a street that forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land appropriated under paragraph (1) without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out authorised development

33.—(1) The undertaker may, in connection with the carrying out of the authorised development,—

(a) enter on and take temporary possession of the land specified in columns (1) and (2) of Schedule 6 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule;

(b) remove any buildings and vegetation from that land;

(c) construct temporary works or permanent works comprised within the authorised development (including the provision of means of access) and temporary buildings on that land; and

(d) construct any works specified in relation to that land in column (3) of that Schedule.

(2) Not less than 14 days before entering on and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land specifying the purpose of the temporary possession.

(3) The undertaker may not, without the agreement of the owner of the land, remain in possession of any land under this article after the end of the period of 1 year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 6 unless and to the extent that it is authorised to do so by the acquisition of rights over land or the creation of new rights over land pursuant to article 28 (compulsory acquisition of rights).

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary buildings and works and restore the land to the reasonable satisfaction of the owner of the land; but the undertaker is not required to replace a building removed under this article or restore the land on which any works have been constructed under paragraph (1)(d).

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of any power conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, must be determined under Part 1 of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1) except that the undertaker is not precluded from—

(a) acquiring new rights over any part of that land under article 28; or

(b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 30 (acquisition of subsoil only).

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(11) Nothing in this article removes the need for a marine licence under Part 4 of the 2009 Act.

Temporary use of land for maintaining authorised development

34.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a) enter on and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development; and

(b) construct such temporary works (including the provision of means of access) and temporary buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

(a) any house or garden belonging to a house; or

(b) any building (other than a house) if it is for the time being occupied.

(3) Not less than 28 days before entering on and taking temporary possession of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

(4) The undertaker may remain in possession of land under this article only for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(5) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary buildings and works and restore the land to the reasonable satisfaction of the owners of the land.

(6) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage rising from the exercise in relation to the land of the powers under this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of compensation, must be determined under Part 1 of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 10(2) of the 1965 Act (further provisions as to compensation for injurious affection) or under any other enactment in respect of loss or damage arising from the maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (6).

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 of the 2008 Act (application of compulsory acquisition provisions).

(11) Nothing in this article removes the need for a marine licence under Part 4 of the 2009 Act.

(12) In this article, “maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.

Protection of Coal Authority

35.  This Order does not confer any powers to acquire any coal measures or land in which the Coal Authority has any proprietary estate or interest.

Protection of riverine fisheries

36.—(1) The undertaker must pay to the owners, occupiers or persons otherwise having a proprietary right of fishing in streams injuriously affected by the construction, operation or maintenance of the authorised development, or otherwise by the exercise of the powers conferred on the undertaker by this Order, compensation for any damage sustained by such persons by reason of the construction, operation or maintenance or the exercise of the powers.

(2) Compensation under paragraph (1) must be determined, in case of dispute, under Part 1 of the 1961 Act.

Special category land

37.—(1) On the exercise by the undertaker of the order rights, so much of the special category land as may be required for the purposes of the order rights is discharged from all rights, trusts and incidents to which it was previously subject, so far as their continuance would be inconsistent with the exercise of the order rights.

(2) In this article—

“order rights” means the powers or rights exercisable over the special category land by the undertaker under article 28;

“special category land” means the land identified as forming part of an open space in the book of reference.

PART 7 Miscellaneous and general

Railway and navigation undertakings

38.—(1) Subject to the following provisions of this article, the undertaker may not under article 9 (street works) break up or open a street where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act),—

(a) is under the control or management of, or is maintainable by, a railway undertaker or a navigation authority; or

(b) forms part of a level crossing belonging to such an undertaker or authority or to any other person,

except with the consent of the undertaker or authority or, as the case may be, of the person to whom the level crossing belongs.

(2) Paragraph (1) does not apply to the carrying out under this Order of emergency works within the meaning of Part 3 of the 1991 Act.

(3) A consent given for the purpose of paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but must not be unreasonably withheld or delayed.

(4) In this article, “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary or harbour.

Application of landlord and tenant law

39.—(1) This article applies to—

(a) an agreement for leasing to a person the whole or any part of the authorised development or the right to operate it; and

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

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

(2) The operation of any agreement to which this article applies is not prejudiced by any enactment or rule of law regulating the rights and obligations of landlords and tenants.

(3) Accordingly, no such enactment or rule of law applies 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.

Operational land for purposes of Town and Country Planning Act 1990

40.  Development consent granted by this Order must be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as operational land).

Felling or lopping of trees

41.—(1) The undertaker may fell or lop any tree or shrub near any part of the authorised development or the Order land, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must not cause 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.

Application of Energy Act 2004 in relation to decommissioning

42.—(1) The undertaker must submit to the Secretary of State a programme for decommissioning the parts of the authorised development below the mean low water mark (a “decommissioning programme”).

(2) The decommissioning programme—

(a) must set out measures to be taken for decommissioning the parts of the authorised development below the mean low water mark;

(b) must contain an estimate of the expenditure likely to be incurred in carrying out those measures;

(c) must make provision for the determination of the times at which, or the periods within which, those measures will have to be taken;

(d) if it proposes that the authorised development will be wholly or partly removed from a place below the mean low water mark, must include provision about restoring that place to the condition that it was in before the construction of the authorised development; and

(e) if it proposes that the authorised development will be left in position at a place below the mean low water mark or will not be wholly removed, must include provision about whatever continuing monitoring and maintenance will be necessary.

(3) The authorised development must not be commenced until the Secretary of State has approved the decommissioning programme.

(4) The provisions of the 2004 Act referred to in paragraph (5) apply as if those provisions were contained in this Order and as if—

(a) the authorised development were a “relevant object” within the meaning of Chapter 3 (decommissioning of offshore installations) of Part 2 of that Act;

(b) references in the provisions of that Act referred to in paragraph (5) to a decommissioning programme submitted to or approved by the Secretary of State under that Chapter included references to a decommissioning programme submitted to or approved by the Secretary of State under this article; and

(c) the reference in section 112A(2)(a) of that Act to a person who has been, or may be, given a notice under section 105(2)(a) of that Act in relation to a relevant object included a reference to the undertaker.

(5) The provisions are—

(a) section 106 (approval of decommissioning programmes);

(b) section 108 (reviews and revisions of decommissioning programmes);

(c) section 109(1) (carrying out of decommissioning programmes);

(d) section 110 (default in carrying out decommissioning programmes), except for subsections (3) and (4);

(e) section 110A (protection of funds held for purposes of decommissioning);

(f) section 110B (section 110A: supplemental);

(g) section 112 (duty to inform Secretary of State), except for subsections (2)(a) and (7);

(h) section 112A (power of Secretary of State to require information and documents), except for subsections (8) and (9).

(6) A person must not disclose information obtained by virtue of a notice under section 112A(1) of the 2004 Act (as applied by paragraph (4)) unless the disclosure—

(a) is made with the consent of the person by or on behalf of whom the information was provided;

(b) is for the purpose of the exercise of the Secretary of State’s functions under this Order, the Electricity Act 1989(23) or Part 4 of the Petroleum Act 1998(24); or

(c) is required by or under an enactment.

Development consent obligation

43.—(1) The undertaker may enter into an obligation relating to the authorised development under section 106 of the 1990 Act in respect of any land within the Order limits even though the undertaker may not be the owner of such land or any interest in it; and this paragraph applies to such an obligation entered into before or after this Order is made.

(2) From the date on which the undertaker acquires any land that is subject to an obligation to which paragraph (1) applies, section 106 of the 1990 Act applies as if the undertaker had been the owner of the land at the date of entering into the obligation.

(3) In this article and article 44, “obligation” has the same meaning as “planning obligation” in section 106 of the 1990 Act.

Development consent obligation: enforcement

44.—(1) Where the undertaker has entered into an obligation relating to the authorised development under section 106 of the 1990 Act, despite sections 1 and 106(3) and (9)(d) of that Act, the document recording the obligation may provide that a local planning authority, other than the local planning authority within whose area the land bound by the obligation is situated, may enforce the obligation.

(2) The document may so provide in relation to all or some of the obligations recorded in it.

Ancient Monuments and Archaeological Areas Act 1979

45.  This Order has effect as a consent under the Ancient Monuments and Archaeological Areas Act 1979(25) in respect of the authorised development in respect of the pillboxes shown on planning drawings nos. 2.4.42 and 2.4.43 and tank traps located on the existing Swansea Port sea wall irrespective of the date upon which any such features are included in a Schedule under that Act.

Licences relating to water, etc.

46.  The requirement under section 25 of the Water Resources Act 1991(26) to obtain a licence before constructing, altering, repairing or removing any impoundment works does not apply to the authorised development.

Byelaws

47.—(1) The undertaker may from time to time make and enforce byelaws regulating the use and operation of the authorised development, the maintenance of order on and about the authorised development and the conduct of all persons including employees of the undertaker while on and about the authorised development.

(2) Without limiting paragraph (1), byelaws made under this article may provide for—

(a) regulating the admission and access to the seawalls forming part of the authorised development, in particular in the vicinity of the Swansea University Bay Campus;

(b) preventing and removing obstructions or impediments within the authorised development;

(c) preventing damage or injury to any goods, vehicles, plant, machinery, property or persons within the authorised development;

(d) regulating the activities of divers, surfers, water skiers and other persons engaged in recreational pursuits within the authorised development;

(e) prohibiting persons in or entering the authorised development from smoking in open spaces; and

(f) preventing nuisances on the authorised works.

(3) Byelaws made under this article may—

(a) provide for the creation of offences in respect of their breach, or the breach of any condition, requirement or direction imposed, made or given under them, that are triable summarily and whose maximum penalty is a fine not exceeding level 3 on the standard scale;

(b) relate to the whole or to any part of the authorised development; and

(c) make different provision for different parts of the authorised development or in relation to different classes of vehicles.

(4) Byelaws made by the undertaker under this Order come into force only when they have been confirmed by the Welsh Ministers.

(5) Before applying for any byelaws to be confirmed under this article, the undertaker must publish a notice of its intention to apply for the byelaws to be confirmed—

(a) on 1 occasion in the London Gazette; and

(b) on 2 occasions in successive weeks in a local newspaper circulating in the area of the authorised development.

(6) The notice must state—

(a) the place at which and the times during which a copy of the proposed byelaws is to be available for public inspection; and

(b) that persons may make representations about the proposed byelaws to the Welsh Ministers in writing within the period specified in the notice being a period of not less than 28 days after the date of publication of the last notice required by paragraph (5).

(7) For at least 28 days after the publication of the last notice required by paragraph (5), a copy of the proposed byelaws must be available for public inspection without payment at the principal office of the undertaker in the area of the authorised development at all reasonable times.

(8) The undertaker must supply a copy of the proposed byelaws or part of the proposed byelaws to a person who applies for it on payment of a reasonable charge.

(9) During the period specified in the notice in accordance with paragraph (5)(b), any person may make representations about the proposed byelaws to the Welsh Ministers in writing.

(10) The Welsh Ministers may, after the expiry of the period specified in the notice in accordance with paragraph (6)(b), confirm with or without modification or may refuse to confirm any of the proposed byelaws submitted and may fix a date on which any byelaws so confirmed are to come into force, and, if no date is so fixed, the byelaws come into force after the expiry of 28 days after the date on which they were confirmed.

(11) The Welsh Ministers may charge the undertaker such fees in respect of any byelaws submitted for confirmation under this article as the Welsh Ministers may consider appropriate for the purpose of defraying any administrative expenses incurred by the Welsh Ministers in connection with confirmation, modification or refusal.

(12) A copy of any byelaws confirmed under this article must be printed and must be available for public inspection without payment at the principal office of the undertaker in the area of the authorised development at all reasonable times, and the undertaker must at the request of any person supply that person with a copy of such byelaws on payment of a reasonable charge.

(13) Byelaws under this article may vary or revoke any byelaws in respect of the authorised development made under any other provision at any time.

(14) Byelaws under this article may be varied or revoked by subsequent byelaws under this article.

Procedure in relation to certain approvals, etc.

48.—(1) Where an application is made to the relevant planning authorities or either of them 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 were 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);

(b) the provisions of any orders, rules or regulations that provide in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission insofar as those provisions are not inconsistent with the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and any other orders, rules or regulations made under the 2008 Act.

(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 provides 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.

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

Certification of plans, etc.

49.—(1) The undertaker must, as soon as practicable after the date on which this Order is made, submit to the Secretary of State copies of the documents listed in Schedule 7 (documents to be certified) for certification that they are true copies of the plans or 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

50.  Any difference under any provision of this Order, unless otherwise provided for, must 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.

Saving for Trinity House

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

Protection of interests

52.  Schedule 8 (protective provisions) has effect.

Crown rights

53.—(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 the Welsh Government or held in trust for Her Majesty for the purposes of a government department or the Welsh Government without the consent in writing of the government department or the Welsh Government; or

(b) to exercise any right under this Order compulsorily to acquire an interest in any land that 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) Consent under paragraph (1) may be given unconditionally or subject to terms and conditions, and is deemed to have been given in writing where it is sent electronically.

Provisions for effect of Adaptive Environmental Management Plan

54.—(1) Where any Requirement provides for an AMEP as defined in Part 3 of Schedule 1, and any provision of that AEMP makes matters of dispute between the undertaker, any relevant planning authority and Natural Resources Wales subject to arbitration under this Order, article 50 (arbitration) applies.

(2) Where under the terms of an AMEP it is necessary for the officers of any relevant planning authority or Natural Resources Wales to attend any meetings of any group or to review any documents, the undertaker is liable for the reasonable and proper costs of those officers in respect of those activities.

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

9th June 2015