The York Potash Harbour Facilities Order 2016

PART 1 PRELIMINARY

Citation

1.  This Order may be cited as the York Potash Harbour Facilities Order 2016 and comes into force on 10th August 2016.

Interpretation

2.—(1) In this Order—

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

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

“the 1966 Act” means the Tees and Hartlepools Port Authority Act 1966(3);

“the 1980 Act” means the Highways Act 1980(4);

“the 1990 Act” means the Town and Country Planning Act 1990(5);

“the 1991 Act” means the New Roads and Street Works Act 1991(6);

“the 2008 Act” means the Planning Act 2008;

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

“the 2009 EIA Regulations” means the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009(8);

“address” includes any number or address used for the purposes of electronic transmission;

“area of seaward construction activity” means the area of the sea within the Order limits;

“authorised development” means the nationally significant infrastructure project and associated development described in Schedule 1 (authorised development) and any other development authorised by this Order, which is development within the meaning of section 32 (meaning of development) of the 2008 Act and any works carried out under the requirements;

“the 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 but, for the purposes of article 30 (temporary use of land) does not include a pipeline or its related apparatus;

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

“clay” means dredged materials with a diameter of less than 31.25 micrometres;

“constructability notes” means the following documents certified as the constructability notes by the Secretary of State for the purposes of this Order—

• N014 - Constructability Issues Rev 2 – SABIC UK

• N015 - Constructability Issues Rev 2 – Huntsman

• N016 - Constructability Issues Rev 2 – DEA

• N021 - Constructability Issues Rev 2 – NWL

• N022 - Constructability Issues Rev 4 – TATA/SSI – Hot Metal Railway

• N023 - Constructability Issues Rev 4 – TATA/SSI – SSI Road

• N024 - Constructability Issues Rev 1 – NWL – Access Road Bridge

• N029 - Constructability Issues Rev 8 – BP CATS – Northern Route;

“conveyor route (northern)” means the route shown as the northern conveyor route on the conveyor route plans;

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

“DML” means the marine licence set out in Schedule 5 (deemed marine licence under the 2009 Act) and deemed by article 31 (deemed marine licence) to have been granted under Part 4 (marine licensing) of the 2009 Act, by virtue of section 149A (deemed consent under a marine licence) of the 2008 Act;

“dredging” means using any device to move material (whether or not suspended in water) from one part of the sea or sea bed to another part;

“ecological mitigation works” means the mitigation measures set out in the outline ecological management plan;

“environmental statement” means the document certified by the Secretary of State as the environmental statement for the purposes of this Order;

“further environmental report” means any report produced in accordance with paragraph 3(3) of Schedule 2 (requirements);

“governance tracker” means the governance tracker certified by the Secretary of State for the purposes of this Order;

“gravel” means dredged materials with a diameter of at least 2 millimetres and less than 64 millimetres;

“the harbour master” means the harbour master appointed by the Tees Port Authority and includes the harbour master’s deputies and assistants;

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

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

“lagoon” means the area identified as Works No. 3 on the works plans;

“lagoon habitat enhancement works” means the works for habitat enhancement in the lagoon approved under the DML;

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

“level of high water” means the average of high water heights occurring at the time of spring tides;

“licensed activity” means any activity described in Part 2 of Schedule 5;

“licensed area” means the area within which any licensed activity takes place;

“limits of deviation” means the limits of deviation shown or referred to on the works plans;

“local planning authority” means Redcar and Cleveland Borough Council;

“maintain” includes to inspect, repair, adjust, alter, remove, clear, refurbish, demolish, replace or improve unless that activity would result in a significant environmental effect not assessed in the environmental statement and any derivative of “maintain” is to be construed accordingly;

“materials handling facility” means the facility to be located at Wilton International being the subject of planning permission reference R/2014/0626/FFM dated 19th August 2015;

“materials management plan” means a plan which sets out the measures to be adopted when excavating and handling potentially contaminated soil to minimise the risk of cross contamination;

“mitigation and monitoring strategy” means the mitigation and monitoring strategy certified by the Secretary of State for the purposes of this Order;

“MMO” means the Marine Management Organisation created under the 2009 Act or any successor to its functions;

“Notice to Mariners” means any notice to mariners which may be issued by the Admiralty, Trinity House, the Queen’s harbourmasters, government departments or harbour and pilotage authorities advising mariners of important matters affecting navigational safety;

“Order land” means the land shown on the land plans which is within the boundary of the land required for or affected by the proposed development, and is land in respect of which rights are to be acquired and extinguished as described in the book of reference;

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

“outline ecological management plan” means the document certified as the outline ecological management plan by the Secretary of State for the purposes of this Order;

“owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981(9);

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

“PD Teesport” means PD Teesport Limited, company number 02636007, whose registered office is at 17 – 27 Queens Square, Middlesbrough, TS2 1AH;

“phase 1” means that part of the authorised development required to be completed in order to facilitate the movement of 6.5 million tonnes per annum of polyhalite comprising in summary—

(a)

site compounds;

(b)

construction of a quay 28 metres wide and 280 metres in length including ship loader and ship loader rails;

(c)

dredging of up to 750,000 cubic metres of material from the approach channel and berth pocket;

(d)

lagoon habitat enhancement works;

(e)

installation of a surge bin;

(f)

installation of conveyor system and transfer towers;

(g)

construction of buildings and parking area;

(h)

erection of security fencing; and

(i)

provision of ancillary infrastructure;

“phase 2” means that part of the authorised development required to be completed in order to facilitate the movement of 13 million tonnes per annum of polyhalite comprising in summary—

(a)

extension of quay to provide total quay length of 486 metres including ship loader and ship loader rails;

(b)

dredging of up to 372,000 cubic metres of material from the approach channel and berth pocket;

(c)

installation of second surge bin;

(d)

installation of second conveyor within the conveyor housing installed during phase 1; and

(e)

provision of ancillary infrastructure;

“pipeline corridor” means the corridor shown coloured yellow on the pipeline corridor plans;

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

“protective provision” means the provisions contained in Schedules 7 to 11;

“the quay limits” means the area bounded by co-ordinates listed in Schedule 6 (quay limits);

“requirement” means, unless the contrary intention appears, the requirement set out in the relevant paragraph of Schedule 2 (requirements);

“sand” means dredged materials with a diameter of at least 62.5 micrometres and less than 2 millimetres;

“sea” means any area submerged at the level of high water and the waters of every estuary, river or channel, so far as the tide flows at level of high water;

“sea bed” means the ground under the sea;

“silt” means dredged materials with a diameter of at least 31.25 micrometres and less than 62.5 micrometres;

“statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land), of the 2008 Act;

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

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

“the Tees Port Authority” means PD Teesport in its role as harbour authority for the River Tees;

“tidal work” (subject to paragraph 2 of Schedule 11 (for the protection of the Tees Port Authority), for the purposes of that Schedule) means so much of any work or operation authorised by this Order as is on, under or over tidal waters or tidal lands below the level of high water;

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

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

“TY150” means the area bounded by co-ordinates (54°41.89’N, 00°57.40’W), (54°41.40’N, 00°58.69’W), (54°42.30’N, 00°59.89’W) and (54°42.59’N, 00°58.60’W);

“the undertaker” means Sirius Minerals Plc, company number 4948435, and York Potash Limited, company number 07251600, both of whose registered offices are at 3rd Floor, Greener House, 68 Haymarket, London, SW1Y 4RF;

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

“vessel” means every description of vessel or water-borne structure, however propelled, moved or constructed, and includes displacement and non-displacement craft, personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over or placement in water and which is at the time in, on or over water;

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

“WGS84” means World Geodetic System 1984;

“working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971(10);

“works area” means the area of land shown on the works plans within which a numbered work is to be carried out; and

“the 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) Except in the definitions of clay, gravel, sand and silt in paragraph (1), and in Schedule 5, all distances, 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) References in this Order to numbered works are references to the works as numbered in Schedule 1 and to numbered requirements are to the numbered requirements as numbered in Schedule 2.

(5) All areas described in square metres in the book of reference are approximate.

(6) Where the term approximate precedes a figure of measurement or quantum the flexibility accorded by that word is limited by the parameters in the parameters table and does not authorise any works which would result in significant environmental effects which have not been assessed in the environmental statement.

(7) Where a function of the Secretary of State has been delegated by an agreement under section 14 of the 2009 Act to the MMO, references in this Order to the Secretary of State in relation to the carrying out of that function are to be taken to include the MMO, and any obligation in this Order to consult the MMO does not apply where the MMO is carrying out that delegated function.

PART 2 PRINCIPAL POWERS

Development consent etc. granted by the Order

3.—(1) The undertaker is granted development consent for the authorised development, to be carried out and used subject to the provisions of this Order within the Order limits and subject to the requirements and protective provisions.

(2) It does not constitute a breach of the terms of this Order, if, following the coming into force of this Order, any development, or any part of a development, is carried out or used within the Order limits under planning permission granted under the 1990 Act.

(3) Nothing in requirements 2, 3, 5, 6(1)(a) to (c) and (e) to (l) and 7 to 9 prevents the carrying out of archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, the erection of any temporary means of enclosure and the temporary display of site notices or advertisements, immediately upon the Order coming into force.

(4) Nothing in paragraphs 7, 10 to 12, 17, 18, 34, 40, 44, 49 and 51 of Schedule 5 (deemed licence under the 2009 Act) prevents the carrying out of pre-construction surveys and monitoring in relation to any licensed activities immediately upon the Order coming into force.

Parameters of authorised development

4.—(1) The authorised development must be carried out in accordance with the parameters shown on the parameters table and in carrying out the authorised development the undertaker may—

(a) deviate laterally from the lines or situations of the authorised development to the extent of the limits of deviation;

(b) in respect of Works No. 4, deviate vertically to the extent shown on the vertical deviation plan; and

(c) in respect of any boundary between the areas of two works numbers, deviate laterally by 20 metres either side of the boundary as noted on the works plans with the exception of the boundary between Works No. 1 and Works No. 2, any boundary with Works No. 3 and any boundary with Works No. 4.

(2) Schedule 6 (quay limits) has effect for the purposes of defining the quay limits for the purposes of Schedule 1 (authorised development) and Schedule 5 (deemed licence under the 2009 Act).

Maintenance of authorised development

5.  Subject to the requirements and the protective provisions the undertaker may maintain the authorised development.

Provision of works

6.—(1) The undertaker may from time to time within the Order limits provide and operate the authorised development, and for these purposes the undertaker may construct and maintain roads, railway lines, buildings, sheds, offices, workshops, depots, walls, foundations, fences, gates, tanks, pumps, conduits, pipes, drains, wires, mains, cables, electrical substations, signals, conveyors, cranes, container handling equipment, lifts, hoists, lighting columns, weighbridges, stairs, ladders, stages, platforms, catwalks, equipment, machinery and appliances and such other works and conveniences as may be necessary or expedient.

(2) Without limitation on the scope of paragraph (1) the undertaker may within the Order limits carry out and maintain such other works as may be necessary or convenient for the purposes of, or in connection with or in consequence of, the construction, maintenance or use of the authorised development, including—

(a) works for the accommodation or convenience of vessels (including but not limited to berthing heads, mooring posts, ladders, buoys, bollards, dolphins, fenders, rubbing strips and fender panels, fender units and pontoons);

(b) works to divert, remove or replace apparatus, including mains, sewers, drains, pipes, conduits, cables, electrical substations and electrical lines; and

(c) landscaping and other works to mitigate any adverse effect of the construction, maintenance and operation of the works or to benefit or protect any person or premises affected by the construction, maintenance and operation of the works.

(3) Nothing in this article authorises—

(a) any works that would give rise to any significant environmental effects not assessed in the environmental statement; and

(b) the construction of railway lines, buildings, sheds, offices, workshops, depots, electrical substation, container handling equipment or weighbridges within the pipeline corridor or within the lagoon.

Benefit of Order

7.  Subject to article 8 (consent to transfer benefit of Order), the provisions of this Order have effect solely for the benefit of the undertaker.

Consent to transfer benefit of Order

8.—(1) Subject to the provisions of this Order the undertaker may, with the written consent of the Secretary of State—

(a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order (including the DML) and such related rights as may be agreed between the undertaker and the transferee; or

(b) grant to another person (“the lessee”) for a period agreed between the undertaker and the lessee any or all of the benefit of the provisions of this Order (including the DML) and such related rights as may be so agreed.

(2) The powers conferred by paragraph (1)(a) may only be exercised by the undertaker or a transferee.

(3) A lessee (‘the granting lessee’) may not make a grant under paragraph (1)(b)—

(a) for a longer period than the period of the grant to the granting lessee; or

(b) conferring any benefit or right that is not conferred by the grant to the granting lessee.

(4) Where an agreement has been made in accordance with paragraph (1), references in this Order to the undertaker, except in paragraphs (2) and (5), include references to the transferee or the lessee.

(5) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

(6) Despite anything contained in Part 4 (marine licensing) of the 2009 Act, but subject to paragraph (5), the undertaker may transfer or grant relevant provisions to another person under paragraph (1).

(7) Before seeking the Secretary of State’s consent to a transfer or grant of relevant provisions under paragraph (1), the undertaker must—

(a) consult the MMO; and

(b) provide the MMO with—

(i) details of the relevant provisions proposed to be transferred or granted; and

(ii) the information that the undertaker proposes to provide under paragraph (9).

(8) Before consenting to a transfer or grant of relevant provisions under paragraph (1), the Secretary of State must consult the MMO.

(9) As soon as is reasonably practicable but in any event no later than 7 days after the coming into effect of a transfer or grant of relevant provisions to another person, the transferor or grantor must give written notice to the MMO of—

(a) the name and contact details of the other person;

(b) the date on which the transfer or grant took effect;

(c) the relevant provisions transferred or granted;

(d) the restrictions, liabilities and obligations that, under paragraph (2), apply in relation to the exercise by the other person of any benefits or rights conferred by the transfer or grant;

(e) where relevant, a plan showing the works or areas to which the transfer or grant relates; and

(f) in a case where the Secretary of State’s consent is needed for the transfer or grant, a copy of the consent.

(10) Section 72(7) and (8) (variation, suspension, revocation and transfer) of the 2009 Act does not apply to a transfer or grant of relevant provisions under paragraph (1).

(11) In this article “relevant provisions” means any of the provisions set out in the DML.

Application and modification of legislative provisions

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

(a) sections 78 (right of appeal in relation to planning decisions) and 79 (determination of appeals) of the 1990 Act(11); and

(b) any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission.

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

(3) Paragraphs (1) and (2) only apply in so far as those provisions are not inconsistent with the 2009 EIA Regulations and any orders, rules or regulations made under the 2008 Act.

(4) Article 3 of, and Class B of Part 8 of Schedule 2 to, the Town and Country Planning (General Permitted Development) (England) Order 2015(12) apply as if this Order were a grant of planning permission and the undertaker were a statutory undertaker in respect of the authorised development.

PART 3 STREETS

Street works

10.—(1) Subject to paragraph (5) the undertaker may, for the purposes of the authorised development, enter on any of the streets within the Order limits 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), (b), (c) and (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) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1).

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

(5) No works to a highway can be carried out under the powers conferred by this article without the prior written consent of the highway authority which may attach reasonable conditions to any consent.

(6) If the highway authority which receives an application for consent under paragraph (5) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted approval.

Temporary stopping up of streets

11.—(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily stop up, alter or divert any street within the Order limits and may for any reasonable time—

(a) divert the traffic from the street; and

(b) subject to paragraph (2), prevent all persons from passing along the street.

(2) The undertaker must provide reasonable access for pedestrians going to or from premises abutting 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) 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.

(4) No stopping up, alteration or diversion of a highway under the powers conferred by this article is to be carried out without the prior written consent of the highway authority which may attach reasonable conditions to any consent.

(5) If the highway authority which receives an application for consent under paragraph (4) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted approval.

Access to works

12.—(1) The undertaker may, for the purposes of the authorised development and with the prior written consent of the highway authority, form and lay out such means of access to a highway or improve existing means of access to a highway, at such locations within the Order limits as the undertaker reasonably requires, for the purposes of the authorised development.

(2) If the highway authority which receives an application for consent under paragraph (1) fails to notify the undertaker of its decision before the end of the period of 28 days beginning with the date on which the application was made, it is deemed to have granted approval.

(3) The consent of the highway authority is not required for the carrying out of works to improve the existing means of access shown on the highway works plan.

Agreements with highway authority

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

(a) the strengthening, improvement, repair or reconstruction of any street required as a result of the exercise of the powers conferred by this Order;

(b) any stopping up, alteration or diversion of a street as part of or to facilitate the authorised development; or

(c) the carrying out in the street of any of the works referred to in article 10(1) (street works).

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

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

(b) include an agreement between the undertaker and highway 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

14.—(1) The undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised 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 under paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(13).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but 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 under the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

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

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2010(14).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964(15), an internal drainage board, a joint planning board, a local authority, or a sewerage undertaker; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(16) have the same meaning as in that Act.

Protective work to buildings

15.—(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 purpose 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 which 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 in writing of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice in writing 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 40 (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 152(17) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) Any compensation payable under paragraph (7) or (8) is to 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 which 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 which has been caused to the building by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate the land

16.—(1) The undertaker may for the purposes of this Order enter on any land above the level of high water shown within the Order limits and—

(a) survey or investigate the land;

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

(c) without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land; and

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigations 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 in writing has been served on every owner, who is not the undertaker, and occupier of the land.

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

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

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

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

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

(b) in a private street without the written 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.

(6) Nothing in this article overrides any requirement to obtain permits or consents under the Conservation of Habitats and Species Regulations 2010(18) or the Wildlife and Countryside Act 1981(19).

Tidal works not to be executed without approval of Secretary of State

17.—(1) Unless its construction has commenced within 5 years of the coming into force of this Order, no tidal work is to be constructed, altered or relaid except in accordance with plans and sections approved in writing by the Secretary of State (following consultation with the MMO) and subject to any conditions and restrictions imposed by the Secretary of State before that work is begun.

(2) If a tidal work is constructed, altered or relaid in contravention of paragraph (1) or of any condition or restriction imposed under that paragraph—

(a) the Secretary of State may by notice in writing require the undertaker at its own expense to remove the tidal work or any part of it and restore the site to its former condition; and, if on the expiration of 30 days beginning with the date when the notice is served on the undertaker it has failed to take reasonable steps to comply with the requirements of the notice, the Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; or

(b) if it appears to the Secretary of State urgently necessary so to do, the Secretary of State may remove the tidal work, or part of it, and restore the site to its former condition,

and any expenditure incurred by the Secretary of State in doing so is recoverable from the undertaker.

Abatement of works abandoned or decayed

18.—(1) Where a tidal work is abandoned, or allowed to fall into decay, the Secretary of State may by notice in writing (and following consultation with the MMO) 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 former condition, to such an extent and within such limits as the Secretary of State thinks proper.

(2) Where a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or allowed to fall 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 Secretary of State 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 Secretary of State may take whatever steps the Secretary of State considers appropriate to achieve the result required by the notice; and any expenditure incurred by the Secretary of State in doing so is recoverable from the undertaker.

Lights on tidal works etc. during construction

19.—(1) The undertaker must, at or near—

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

(b) any plant, equipment or other obstruction placed in connection with any authorised development or any work authorised by article 6 (provision of works), within the area of seaward construction activity,

during the whole time of the construction, alteration or relaying, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as the Secretary of State and the Tees Port Authority or, failing agreement between them, the Secretary of State may from time to time direct.

(2) Subject to article 33 (defences to proceedings) if the undertaker fails to comply in any respect with a direction given under paragraph (1) it is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Provision against danger to navigation

20.—(1) 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 the Tees Port Authority and must lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as the Tees Port Authority may from time to time direct.

(2) Subject to article 33 (defence to proceedings) if the undertaker fails to comply in any respect with a direction given under paragraph (1) it is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Permanent lights on tidal works

21.—(1) After the completion of a tidal work the undertaker must at the outer extremity of it exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as the Tees Port Authority may from time to time direct.

(2) Subject to article 33 (defence to proceedings) if the undertaker fails to comply in any respect with a direction given under paragraph (1) it is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Power to charge

22.  The undertaker may from time to time demand, take and recover such charges for the use of the authorised development (including the loading and unloading of goods) or the use of any other services or facilities provided in connection with the authorised development as it thinks fit.

PART 5 POWERS OF ACQUISITION

Guarantees in respect of payment of compensation

23.—(1) The undertaker must not exercise a power conferred by this Part unless guarantees or alternative forms of security in respect of the liability of the undertaker to pay compensation under this Part are in place.

(2) The form of guarantee or security referred to in paragraph (1), and the amount guaranteed or secured, must be approved by the local planning authority; but such approval must not be unreasonably withheld.

(3) The undertaker must provide the local planning authority with such information as the local planning authority may reasonably require relating to the interests in the land affected by the exercise of the powers conferred by this Part for the local planning authority to be able to determine the adequacy of the proposed guarantee or security including—

(a) the interests affected; and

(b) the undertaker’s assessment, and the basis of the assessment, of the level of compensation.

(4) A guarantee or other security given in accordance with this article that guarantees or secures the undertaker’s payment of compensation under this Part is enforceable against the guarantor or provider of security by any person to whom such compensation is properly payable.

Compulsory and other acquisition of rights

24.—(1) The undertaker may create and acquire compulsorily the new rights and impose the restrictions described in Part 1 of Schedule 3 (acquisition provisions).

(2) The undertaker may create and acquire the new rights and impose the restrictions described in Part 2 of Schedule 3 with the consent in writing of the appropriate Crown authority (as defined in the 2008 Act).

(3) Subject to the provisions of this article and to the protective provisions, all private rights over land described in column (1) of Parts 1 and 2 of Schedule 3 are extinguished in so far as their continuance would be inconsistent with the carrying out and use of the authorised development—

(a) as from the date of the acquisition of the right or the benefit of the restrictive covenant 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)(20) of the 1965 Act in pursuance of the right,

whichever is the earlier.

(4) Part 3 (modification of compensation and compulsory purchase enactments for the creation of new rights and restrictive covenants) of Schedule 3 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

(5) Subject to section 8 (other provisions as to divided land) of the 1965 Act as substituted by paragraph 5 of Part 2 of Schedule 3, where the undertaker creates a new right in, on, over or under land under paragraph (1) the undertaker is not required to acquire a greater interest in that land.

(6) Any person who suffers loss by the extinguishment 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.

Power to override easements and other rights

25.—(1) Any authorised activity undertaken by the undertaker which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title under it) is authorised by this Order if it is done in accordance with the terms of this Order, regardless of whether 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 the land arising by virtue of a contract.

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

(a) the erection, construction or carrying out, or maintenance of any building or works on land;

(b) the erection, construction or maintenance of anything in, on, over or under land; or

(c) the use of any land.

(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) Nothing in this article authorises interference with any right of way or right of laying down, erecting, continuing or maintaining apparatus on, under or over land which is—

(a) a right vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking; or

(b) a right conferred by or in accordance with the electronic communications code on the operator of an electronic communications code network.

(5) Where any interest or right to which this article applies is interfered with or any restriction breached by any authorised activity in accordance with the terms of this article, the interest or right is extinguished, abrogated or discharged at the time that the interference or breach in respect of the authorised activity in question commences.

(6) In respect of any interference, breach, extinguishment, abrogation or discharge under this article, compensation—

(a) is payable under section 7 (measure of compensation in case of severance) or 10 (further provisions as to compensation for injurious affection) of the 1965 Act; and

(b) is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections in respect of injurious affection where—

(i) the compensation is to be estimated in connection with a purchase under that Act; or

(ii) the injury arises from the execution of works on or use of land acquired under that Act.

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

(8) Nothing in this article is to be construed as restricting the entitlement of any person to compensation.

(9) Where a person deriving title under the undertaker by whom the land in question was acquired or appropriated—

(a) is liable to pay compensation; and

(b) fails to discharge that liability,

the liability is enforceable against the undertaker.

Compulsory acquisition of land – incorporation of the mineral code

26.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(21)are incorporated in this Order subject to the following modifications—

(a) for “the acquiring authority” substitute “the undertaker”;

(b) for the “undertaking” substitute “authorised development”; and

(c) paragraph 8(3) is not incorporated.

Time limit for exercise of authority to acquire land and rights compulsorily

27.—(1) After the end of the period of 5 years beginning on the day on which this Order is made—

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

(b) no declaration is to be executed under section 4 (execution of declaration) of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 28 (application of the Compulsory Purchase (Vesting Declarations) Act 1981(22)).

(2) The authority conferred by article 30 (temporary use of land) ceases at the end of the period referred to in paragraph (1), but nothing in this paragraph prevents the undertaker remaining in possession of the land after the end of that period, if the land was entered and possession taken before the end of that period, subject to the limitation in article 30(3).

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

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

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as applied by paragraph (1), has effect with the following modifications.

(3) In section 3 (preliminary notices) for subsection (1) substitute—

“(1) Before making a declaration under section 4 with respect to any land which is 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), for “(1)(b)” substitute “(1)” and after “given” insert “and published”.

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

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

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

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

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

(a) in subsection (1), after “publication” 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 are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act to the compulsory acquisition of land and rights under this Order.

Rights under or over streets

29.—(1) The undertaker may enter on and create the new rights and impose the restrictions described in the book of reference over 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 existing subway or underground building; or

(b) any existing cellar, vault, arch or other construction in, on or under a street which 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

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

(a) enter into and take temporary possession of—

(i) the land specified in columns (1) and (2) of Schedule 4 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and

(ii) any of the Order land in respect of which no notice of entry has been served under section 11 of the 1965 Act or no declaration has been made under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981;

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

(c) construct and use temporary works (including the provision of means of access) and buildings on that land.

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

(3) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of land specified in paragraph (1)(a)(i), 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 (4) of Schedule 4; or

(b) in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of 1 year beginning with the date of completion of the work for which temporary possession of that land was taken unless the undertaker has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 in relation to that land or has otherwise acquired the land subject to temporary possession.

(4) Before giving up possession of land of which temporary possession has been taken under this article unless otherwise agreed by the owners of the land, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to replace a building removed under this article.

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

(7) Nothing in this article affects any liability to pay compensation under section 10(2) (further provisions as to compensation for injurious affection) of the 1965 Act 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)(a)(i) except that the undertaker is not precluded from acquiring new rights over or imposing restrictions over any part of that land under article 24 (compulsory and other acquisition of rights);

(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 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under the powers conferred by paragraph (1) to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

(11) Subject to paragraph (12) and the protective provisions, 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;

(b) enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

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

(12) Paragraph (11) does not authorise the undertaker to take temporary possession of any building if it is for the time being occupied.

(13) Not less than 28 days before entering on and taking temporary possession of land under paragraph (11) the undertaker must serve notice of the intended entry on the owners and occupiers of the land.

(14) The undertaker may only remain in possession of land under paragraph (11) 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.

(15) Before giving up possession of land of which temporary possession has been taken under paragraph (11), the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(16) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under paragraph (11) for any loss or damage arising from the exercise in relation to the land of the powers conferred by that paragraph.

(17) Any dispute as to a person’s entitlement to compensation under paragraph (16), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(18) Nothing in this article affects any liability to pay compensation under section 10(2) (further provisions as to compensation for injurious affection) of the 1965 Act 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 (16).

(19) Where the undertaker takes possession of land under paragraph (11), the undertaker is not required to acquire the land or any interest in it.

(20) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under the powers conferred by paragraph (11) to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

(21) In this article “the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that phase of the authorised development is brought into use.

PART 6 MISCELLANEOUS AND GENERAL

Deemed marine licence

31.  The undertaker is deemed to be granted a licence under Part 4 (marine licences) of the 2009 Act to carry out the works described in Schedule 5 (deemed licence under the Marine and Coastal Access Act 2009), subject to the provisions set out in that Schedule, which are to be treated as licence conditions and are deemed to have been attached to the DML by the Secretary of State under Part 4 of the 2009 Act.

Operational land for purposes of the 1990 Act

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

Defences to proceedings

33.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(23) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order is to be made, and no fine may be imposed, under section 82(2) of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance 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(24); or

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

(b) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development and that it cannot reasonably be avoided; or

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

(2) In proceedings for an offence under any of the provisions mentioned in paragraph (3) it is a defence for the undertaker to prove that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(3) The provisions referred to in paragraph (2) are—

(a) article 19 (lights on tidal works etc. during construction);

(b) article 20 (provision against danger to navigation); and

(c) article 21 (permanent lights on tidal works).

(4) If in any case the reliance on the defence provided by paragraph (2) involves the allegation that the commission of the offence was due to the act or default of another person, the undertaker is not, without leave of the court, entitled to rely on that defence unless, before the period of 7 clear days preceding the hearing, it has served on the prosecutor a notice in writing giving such information identifying, or assisting in the identification of, that other person as was then in its possession.

(5) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 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.

Protection of interests

34.  Schedules 7 to 11 have effect.

Saving for Trinity House

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

Crown Rights

36.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any licensee—

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

(i) belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

(ii) belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

(iii) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department; or

(b) to exercise any right under this Order compulsorily to acquire an interest in any land which is Crown land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown without the consent in writing of the appropriate Crown authority (as defined in the 2008 Act).

(2) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.

Approvals pursuant to requirements etc.

37.—(1) Where requirements, provisions of the DML (including the licence conditions) or protective provisions require approval from or agreement with the local planning authority or other person, such approval or agreement must be in writing and must not provide for development outside the parameters of the authorised development or for a form of development which would give rise to materially new or materially worse environmental effects in comparison with those assessed in the environmental statement or any updated environmental information supplied under the 2009 EIA Regulations.

(2) When any details, plans or other matters have been agreed or approved by the local planning authority or other person in accordance with a requirement, the DML (including the licence conditions) or the protective provisions, those details, plans or other matters may subsequently be amended by agreement with the person concerned provided that no amendments to those details, plans or other matters would provide for development outside the parameters of the authorised development or for a form of development which would give rise to materially new or materially worse environmental effects in comparison with those assessed in the environmental statement or any updated environmental information supplied under the 2009 EIA Regulations.

Certification of plans etc.

38.—(1) The undertaker, as soon as practicable after the making of this Order, must submit to the Secretary of State copies of—

(a) the book of reference (Document 5.3B);

(b) the land plans (Documents 2.1, 2.1A to 2.1B(i), 2.1C to 2.1J(i) and 2.1K to 2.1N(i));

(c) the environmental statement (Documents 6.4 and 6.5);

(d) the works plans (Documents 2.2A to F);

(e) the vertical deviation plan (Document 3.11B);

(f) the parameters table (Document 6.9A);

(g) the highway works plan (Document 3.14);

(h) the mitigation and monitoring strategy (Document 6.12A);

(i) the conveyor route plans (Documents 3.3H to O);

(j) the governance tracker (Document 6.8B);

(k) the outline construction environmental management plan (Document 6.10A);

(l) the outline ecological management plan (Document 6.11B);

(m) the constructability notes;

(n) the pipeline corridor plans (Documents 3.15A to C);

(o) drawing number PB1586 – SK123 Revision 2 (Document 3.9B) showing the “river frontage line”;

(p) drawing number PB1586 – SK1081 Revision D (Document 3.16) showing the access arrangements for the Redcar Bulk Terminal conveyor;

(q) drawing numbers PB1586-SK1026 Revision E (Document 3.5A) and PB1586-SK1027 Revision G (Documents 3.5B) showing locations of screen fencing; and

(r) the Wilton Complex Plan (drawing number T-MIS-0065-01),

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

(2) Where the amendment of any plan or document referred to in paragraph (1) is required to reflect the terms of the Secretary of State’s decision to make this Order, that plan or document, in the form amended to the Secretary of State’s satisfaction, is the version of the plan or document to be certified under paragraph (1).

(3) 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.

Service of Notices

39.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post; and

(b) with the consent of the recipient and subject to paragraphs (6) to (8) by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(25) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of that land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice of other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(c) the notice or document is legible in all material respects; and

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date may not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Arbitration

40.  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 President of the Institution of Civil Engineers.

Signed by the authority of the Secretary of State for Transport

Martin Woods

Head of the Transport and Works Act Orders Unit

Department for Transport

20th July 2016