The West Burton C (Gas Fired Generating Station) Order 2020

PART 1 Preliminary

Citation and commencement

1.—(1) This Order may be cited as the West Burton C (Gas Fired Generating Station) Order 2020 and comes into force on 11th November 2020.

Interpretation

2.—(1) In this Order—

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

“the 1980 Act” means the Highways Act 1980(2);

“the 1989 Act” means the Electricity Act 1989(3);

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

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

“the 2008 Act” means the Planning Act 2008;

“authorised development” means the development and associated development described in Schedule 1 (authorised development) which is development within the meaning of section 32 of the 2008 Act;

“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;

“CCGT” means combined cycle gas turbine;

“the combined heat and power assessment” means the document certified as the combined heat and power assessment by the Secretary of State for the purposes of this Order;

“commence”, unless otherwise provided for, means beginning to carry out any material operation (as defined in section 155 of the 2008 Act) forming the relevant part of the authorised development other than operations consisting of preliminary works, site clearance, demolition work, archaeological investigations, environmental surveys, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and “commencement” is construed accordingly;

“discharging authority” means the body responsible for giving any agreement or approval required by a requirement;

“electrical cables” means overhead or underground cables including fibre optic cables;

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

“framework construction environmental management plan” means the document certified as the framework construction environmental management plan by the Secretary of State for the purposes of this Order;

“framework construction traffic management plan” means the document certified as the framework construction traffic management plan by the Secretary of State for the purposes of this Order;

“framework construction workers’ travel plan” means the document certified as the framework construction workers’ travel plan by the Secretary of State for the purposes of this Order;

“gross rated electrical output” means the aggregate of gross electrical power as measured at the terminals of each generator in accordance with standards agreed with the regulating authority under the Environmental Permitting (England and Wales) Regulations 2016(6);

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

“Highways England” means Highways England Company Ltd (company registration number 09346363) whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;“Historic England” means the Historic Buildings and Monuments Commission for England;

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

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

“the landscaping and biodiversity management and enhancement plan” means the document certified as the landscaping and biodiversity management and enhancement plan by the Secretary of State for the purposes of this Order;

“Lead Local Flood Authority” means Nottinghamshire County Council or any replacement body;

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

“maintain” includes, to the extent assessed in the environmental statement, inspect, repair, adjust, alter, refurbish, remove, reconstruct any part (but not the whole), replacement of any part (but not the whole) and improve, but not so as to vary from the description of the authorised development and “maintenance” is construed accordingly;

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

“outline drainage strategy” means the document certified as the outline drainage strategy by the Secretary of State for the purposes of this Order;

“OCGT” means open cycle gas turbine;

“outline written scheme of investigation” means the document certified as the outline written scheme of investigation by the Secretary of State for the purposes of this Order;

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

“public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, a local authority or a sewerage undertaker;

“relevant internal drainage board” means Trent Valley Internal Drainage Board or any replacement body;

“relevant planning authority” in relation to any land means the district planning authority for the area in which the land is situated;

“requirements” means those matters set out in Schedule 2 to this Order;

“scheduled works” means the numbered works specified in Schedule 1 to this Order, or any part of them;

“sewerage undertaker” has the same meaning as in Schedule 1 of the Interpretation Act 1978(8);

“statutory undertaker” means any person falling within section 127(8) of the 2008 Act;

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

“street authority”, in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

“tree preservation order” has the meaning given in section 198 of the 1990 Act(9).

“undertaker” means EDF Energy (Thermal Generation) Limited (company number 4267569) whose registered office is 90 Whitfield Street, London, England, W1T 4EZ;

“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;

“West Burton A” means West Burton A, a coal fired power station operated by the undertaker, forming part of the West Burton Power Station Site;

“West Burton B” means West Burton B CCGT, a gas fired power station operated by the undertaker, forming part of the West Burton Power Station Site;

“West Burton Power Station Site” means the land near Retford in Nottinghamshire within the ownership of the undertaker comprising West Burton A, West Burton B and other land including the Order limits; 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) Save in relation to Tables 1 and 2 of Schedule 2 all distances, directions and lengths referred to in this Order are approximate and distances between points on a scheduled work comprised in the authorised development will be taken to be measured along that scheduled work.

PART 2 Principal Powers

Development consent etc. granted by the Order

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

(2) Subject to article 6 (limits of deviation) the development must be constructed and installed in the lines and situations shown on the works plans.

Maintenance of authorised development

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

(2) This article only authorises the carrying out of maintenance works within the Order limits.

PART 3 Operations

Operation of generating station

5.—(1) The undertaker is hereby authorised to use and 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 from time to time to authorise the operation of an electricity generating station.

Limits of deviation

6.  In carrying out the authorised development the undertaker may deviate laterally from the lines or situations of the authorised development shown on the works plans within the relevant areas shown on those plans.

Benefit of Order

7.—(1) — Except as otherwise provided in this Order, the provisions of this Order have effect solely for the benefit of the undertaker.

(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 provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee; or

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

except where paragraph (5) applies in which case no such consent is required.

(3) Where a transfer or grant has been made in accordance with paragraph (2) references in this Order to the undertaker, except in paragraph (4) include references to the transferee or the lessee.

(4) 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 the undertaker.

(5) This paragraph applies where the transferee or lessee is a person who holds a licence under section 6 of the 1989 Act(10) or section 7 of the Gas Act 1986(11).

(6) Where the consent of the Secretary of State is not required under paragraph (5) the undertaker must notify the Secretary of State in writing before transferring or granting a benefit referred to in paragraph (2).

(7) The notification referred to in paragraph (6) must state -

(a) the name and contact details of the person to whom the benefit of the powers will be transferred or granted;

(b) subject to paragraph (8), the date on which the transfer will take effect;

(c) the powers to be transferred or granted;

(d) pursuant to paragraph (4), the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted; and

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

(8) The date specified under paragraph (7)(b) must not be earlier than the expiry of five working days from the date of the receipt of the notice

(9) The notice given under paragraph (7) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice.

Defence to proceedings in respect of statutory nuisance

8.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(12) (summary proceedings by persons aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (statutory nuisances and inspections therefor no order is to be made, and no fine is to 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(13); 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 which is being used in accordance with a scheme of monitoring of noise agreed with the relevant planning authority as described in requirement 22 (control of noise - operation); or

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

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 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 4 Streets

Temporary prohibition or restriction of use of streets

9.—(1) The undertaker may, during and for the purposes of carrying out the authorised development, temporarily divert or prohibit or restrict the use of any street specified in column 2 of Schedule 4 (streets subject to temporary prohibition or restriction of use) and may for any reasonable time—

(a) divert the traffic or a class of 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 non-motorised users (including pedestrians) going to or from premises abutting a street affected by the temporary diversion, prohibition or restriction of a street under this article if there would otherwise be no such access.

(3) The undertaker must not temporarily divert or prohibit or restrict the use of—

(a) any street referred to in paragraph (1) without first consulting the street authority; or

(b) any other street without the prior written consent of the street authority which may attach reasonable conditions to any consent.

(4) If a street authority fails to notify the undertaker of its decision within 4 weeks of receiving an application for consent under paragraph (3)(b) (or such longer period as may be agreed with the undertaker in writing) that street authority is deemed to have granted consent.

(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 (determination of questions of disputed compensation) of the 1961 Act.

Agreements with street authorities

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

(a) any diversion or prohibition or restriction of use of a street authorised by this Order; or

(b) the temporary removal and reinstatement of street furniture.

(2) Such an agreement may, without prejudice to the generality of paragraph (1),—

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

(b) include an agreement between the undertaker and 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 5 Supplemental powers

Discharge of water

11.—(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 subject to the obtaining of consent and approval respectively pursuant to paragraphs (3) and (4) below.

(2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) is to be determined as if it were a dispute under section 106 of the Water Industry Act 1991(14) (right to communicate with public sewers).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but 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 forming part of a main river other than in accordance with a consent granted by the Environment Agency.

(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) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2016 (requirement for an environmental permit).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964(15) (interpretation), an internal drainage board, a joint planning board, a local authority, a National Park Authority, a sewerage undertaker or an urban development corporation; 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.

PART 6 Miscellaneous and General

Application of landlord and tenant law

12.—(1) This article applies to—

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

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

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

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

(3) Accordingly, no such enactment or rule of law to which paragraph (2) 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 the 1990 Act

13.  Development consent granted by this Order is to 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 not being operational land).

Felling or lopping of trees

14.—(1) The undertaker may fell or lop any tree or shrub within or overhanging the Order limits or within the extent of the publicly maintainable highway near any part of the authorised project, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised development.

(2) In relation to the felling or lopping of any tree or shrub within the publicly maintainable highway, the power contained in paragraph (1) must only be exercised in connection with the delivery of abnormal indivisible loads to the West Burton Power Station Site.

(3) In carrying out any activity authorised by paragraph (1) the undertaker must –

(a) give at least 14 days’ notice to the relevant planning authority of its intention to fell or lop any tree or shrub overhanging the Order limits or within the extent of the publicly maintainable highway;

(b) do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity; and

(c) the duty contained in section 206(1) of the 1990 Act (replacement of trees)(17) does not apply.

(4) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(5) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, must be determined under Part 1 of the 1961 Act (determination of questions of disputed compensation).

Protective provisions

15.  Schedule 5 (protective provisions) has effect.

Certification of plans etc.

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

(a) the combined heat and power assessment (Document 7.2 Rev 0);

(b) the environmental statement (Document 5.2 Rev 0);

(i) Chapter 9 (Ecology Chapter) of the environmental statement (Rev 2);

(c) the framework construction environmental management plan (Document 7.3 Rev 2);

(d) the framework construction traffic management plan (Document 7.6 Rev 3);

(e) the framework construction workers’ travel plan (Document 7.7 Rev 0);

(f) the indicative layout plans (Document 3.4 Rev 0);

(g) the land plans (Document 3.3 Rev 0);

(h) the landscaping and biodiversity management and enhancement plan (Document 7.5 Rev 4);

(i) the lighting strategy (Document 7.4 Rev 0);

(j) the outline drainage strategy (Document 7.8 Rev 0);

(k) the outline written scheme of investigation (Document 7.9 Rev 0); and

(l) the works plans (Document 3.2 Rev 0),

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

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

Procedure in relation to certain approvals etc.

17.—(1) Where an application is made to or request is made of the relevant planning authority, a highway authority, a street authority or the owner of a watercourse, sewer or drain for any agreement or approval required or contemplated by any of the provisions of this Order, such agreement or approval must, if given, be given in writing and must not be unreasonably withheld or delayed.

(2) Schedule 3 (procedure for discharge of requirements) has effect in relation to all agreements or approvals granted, refused or withheld in relation to the requirements.

Arbitration

18.  Any difference under any provision of this Order, unless otherwise provided for, is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State.

Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy

Gareth Leigh

Head of Energy Infrastructure Planning

Department for Business, Energy and Industrial Strategy

21st October 2020