(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 or lessee to 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)—
(a) belonging to His Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;
(b) belonging to His 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
(c) belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.
(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.
(3) 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.
Development consent granted by this Order 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 not being operational land) of the 1990 Act.
(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of all of the documents listed in Schedule 15 (documents to be certified) 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.
(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a) by post;
(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c) with the consent of the recipient and subject to paragraphs (5) 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 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 the 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 or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be 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 seven 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 must not be less than seven 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.
Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.
Schedule 2 Part 2 (approval of matters specified in requirements) has effect in relation to all agreements or approvals granted, refused or withheld in relation to the requirements.
(1) Subject to article 39 (saving provisions for Trinity House) any difference under any provision of this Order, unless otherwise provided for, is to be referred to and settled in arbitration in accordance with the rules at Schedule 14 (arbitration rules) of this Order, by a single arbitrator to be agreed upon by the parties, within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.
(2) For the avoidance of doubt, any matter for which the consent or approval of the Secretary of State or the MMO is required under any provision of this Order is not subject to arbitration.
Article 2
PART 1 Authorised development
A nationally significant infrastructure project as defined in sections 14 (nationally significant infrastructure projects: general) and 15 (generating stations) of the 2008 Act which is located in the Southern North Sea approximately 37 kilometres from the coast of Suffolk at its nearest point, comprising—
Work No. 1—
(a) an offshore wind turbine generating station with a gross electrical output capacity of over 100 megawatts, comprising up to 79 wind turbine generators each fixed to the seabed by a foundation, and further comprising (b) and (c) below;
(b) a network of subsea inter-array cables, including cable crossings and cable protection; and
(c) floating buoys;
and associated development within the meaning of section 115(2) (development for which development consent may be granted) of the 2008 Act comprising—
Work No. 2 — Electrical export works comprising—
(a) up to two offshore substation platforms each fixed to the seabed by a foundation;
(b) up to two subsea cable circuits between the offshore platforms forming Work No. 2(a) including cable crossings and cable protection; and
(c) up to two subsea cable circuits between Work No. 2(a) and Work No. 3, cable protection and cable crossings.
Work No. 2A — Sheet piling works and creation of pits for trenchless installation techniques, including installation of up to two cable ducts, installation and use of temporary construction working areas, cable installation vessel anchoring and works to allow vessels to remain in place at low tide.
Work No. 3 — Installation of up to two subsea cable circuits between Work No. 2 and Work No. 4, including up to two cable ducts, cable protection and cable crossings and further including—
(a) sheet piling works including creation of pits for trenchless installation techniques, trenchless installation technique works including the creation of entrance and exit pits; and
(b) installation and use of temporary construction working areas, cable installation vessel anchoring, works to allow vessels to remain in place at low tide and laydown area.
Work Nos. 1, 2, 2A and 3 are to be constructed seaward of MHWS within the area delineated by the co-ordinates shown on the offshore order limits and co-ordinates plan and listed in Table 1 of Schedule 16 (offshore co-ordinates), and within the area for each Work No. as shown on the works plan—
In the District of Tendring, Essex
Work No. 4 — Installation of up to two buried cable circuits within cable ducts between Work No. 3 and Work No. 5, approximately 500m, including trenchless installation technique works.
Work No. 4A — Construction of a temporary construction compound and laydown area (Beach Works temporary construction compound), improvement and use of existing access routes including creation of construction access to Work Nos. 3, 4, and 5, works to junctions and visibility splays, temporary construction working areas and laydown area.
Work No. 5 — Installation of up to two buried cable circuits within cable ducts approximately 215m, and—
(a) construction of a haul road;
(b) a temporary construction working area;
(c) up to two transition joint bays;
(d) trenchless installation techniques including the creation of pits; and
(e) a temporary construction compound.
Work No. 5A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections from within Work No. 5 to Work No. 6A.
Work No. 6 — Installation of up to two buried cable circuits within cable ducts between Work No. 5 and Work No. 7 from the north east of the landfall compound to Clacton Road, approximately 1230 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 6A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 5A and Work No. 7A.
Work No. 6B — The creation of a temporary construction compound east of Clacton Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 7 — Installation of up to two buried cable circuits within cable ducts between Work No. 6 and Work No. 8 from west of Clacton Road to the railway, approximately 2400 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 7A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 6A and Work No. 8A.
Work No. 7B — The creation of a temporary construction compound west of Clacton Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 7C — Off-route haul road connecting to Work Nos. 7 and 7A, to the west of the cable route, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 7D — Off-route haul road connecting to Work Nos. 7 and 7A, to the east of the cable route, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 7E — Off-route haul road connecting to Work Nos. 7 and 7A, to the east of the cable route and to the south-west of the railway, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 8 — Installation of up to two buried cable circuits within cable ducts between Work No. 7 and Work No. 9 from the railway to Thorpe Road, approximately 1000 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 8A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 7A and Work No. 9A.
Work No. 8B — The creation of a temporary construction compound south of Thorpe Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 8C — Off-route haul road connecting to Work Nos. 8 and 8A, to the east of the cable route, north of the railway, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 9 — Installation of up to two buried cable circuits within cable ducts between Work No. 8 and Work No. 10 from Thorpe Road to Swan Road, approximately 4890 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 9A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 8A and Work No. 10A.
Work No. 9B —The creation of a temporary construction compound north of B1035, Tendring Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 9C — Off-route haul road connecting to Work Nos. 9 and 9A, to the to the north-east of the cable route, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 9D — Off-route haul road connecting to Work Nos. 9 and 9A, to the south-west of the cable route, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 9E — Off-route haul road connecting to Work Nos. 9 and 9A, to the south-west of the route and crossing Landemere Road, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 9F — Off-route haul road connecting to Work Nos. 9 and 9A, to the north-east of the route to the north of Golden Lane, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 10 — Installation of up to two buried cable circuits within cable ducts between Work No. 9 and Work No. 11 from Swan Road to Tendring Brook, approximately 1480 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays; and creation of permanent ecological and environmental mitigation works including habitat creation.
Work No. 10A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 9A and Work No. 11A.
Work No. 10B — The creation of a temporary construction compound to the north of Thorpe Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown.
Work No. 10C — Off-route haul road connecting to Work Nos. 10, 10A, 11 and 11A crossing Tendring Brook, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 11 — Installation of up to two buried cable circuits within cable ducts between Work No. 10 and Work No. 12 from Tendring Brook to A120, approximately 3630 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 11A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 10A and Work No. 12A.
Work No. 11B —The creation of a temporary construction compound to the east of B1035, immediately south of the A120, creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 11C — Off-route haul road connecting to Work Nos. 11 and 11A, to the west of the cable corridor, crossing Stones Green Road, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 11D — Off-route haul road connecting to Work Nos. 11 and 11A, to the east of the cable corridor, crossing Stones Green Road, temporary construction working areas, laydown and soils storage and temporary drainage works including alteration of existing drainage, connections to existing drainage.
Work No. 12 — Installation of up to two buried cable circuits within cable ducts between Work No. 11 and Work No. 13 from A120 to Bentley Road, approximately 2840 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of a haul road, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 12A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 11A and Work No. 14A.
Work No. 12B — The creation of a temporary construction compound east of B1035, Clacton Road. Creation of construction access, construction of a haul road, temporary construction working areas and laydown, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 12C — The creation of a temporary construction compound to the west of B1035 Clacton Road, creation of construction access, construction of a haul road, temporary construction working areas and laydown, creation and improvement of accesses to the public highway including works to junctions and visibility splays, and creation and use of an off route haul road east of Clacton road.
Work No. 13 — Works to permanently widen and improve Bentley Road, including temporary removal and replacement of street furniture, temporary provision of segregated pedestrian / cycling area, planting and reinforcement of hedgerows, permanent highway drainage works including creation of new highway drainage and works of improvement to drainage, creation and improvement of connections to existing drains and watercourses; creation and use of a temporary construction compound and working areas.
Work No. 13A — Works to permanently widen and improve the junction at Bentley Road and the A120, including removal of street furniture, provision of merger lane taper, drainage works including creation of new highway drainage and works of improvement to drainage, creation and improvement of connections to existing drains and watercourses; creation and use of a temporary construction compound and working areas.
Work No. 14 — Installation of up to two buried cable circuits with cable ducts between Work No. 12 from Bentley Road to Work No. 15, approximately 2710 metres; cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits, and cable trenching works; construction of haul roads, temporary construction accesses and working areas and laydown area, creation and improvement of accesses including works to junctions and visibility splays.
Work No. 14A — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 12A and Work No. 15.
Work No. 14B — The creation of a temporary construction compound to north of the cable corridor, (east of Bentley road), including creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 14C — The creation of a temporary construction compound to north of the cable corridor, (west of Bentley Road), creation of construction access, construction of a haul road, temporary construction working areas and laydown, and creation and improvement of accesses to the public highway including works to junctions and visibility splays.
Work No. 14D — The creation of a temporary construction compound south of the cable corridor west of Bentley Road, and haul road (partly outside the cable corridor) including—
(a) creation of temporary construction working areas and laydown areas, creation of construction access, construction of a haul road between Bentley Road and Work No. 15; and
(b) creation and improvement of accesses to the public highway including works to junctions, creation of a new temporary bellmouth junction and visibility splays.
Work No. 15 — Substation zone works comprising—
Work No. 15A—
(a) land re-profiling and groundworks;
(b) security fencing;
(c) utilities connections;
(d) temporary and permanent drainage works including alteration of existing drainage, connections to existing drainage and creation of new sustainable drainage including attenuation pond(s);
(e) temporary and permanent access roads, bellmouth and visibility splays;
(f) temporary construction areas, lay down areas and haul roads;
(g) installation of up to two buried cable circuits within cable ducts (if required);
(h) installation of up to two buried 400 kilovolts cable circuits within cable ducts (if required);
(i) cable crossings, cable protection, cable ducts, joint bays, trenchless installation technique pit works including the creation of entrance and exit pits and cable trenching works;
(j) landscaping works including planting of screening; and
(k) creation of permanent ecological and environmental mitigation works including habitat creation.
Work No 15B — Construction of electrical substation infrastructure including—
(a) creation of a platform;
(b) a compound for electrical works necessary for the onward transmission of electricity (the “substation compound”) containing (but not limited to) switchgear and electrical equipment including power transformers, reactive compensation equipment, filters, cooling equipment, control and welfare buildings, lightning rods, internal roads, security fencing and other associated equipment, structures and buildings including noise-attenuation works; and
(c) permanent security fencing and security gate.
Work No 15C — Landscaping works including—
(a) re-profiling of ground levels;
(b) planting of screening; and
(c) creation of permanent ecological and environmental mitigation works, including habitat creation.
Work No 15D — Groundworks, drainage and planting including—
(a) utilities connections;
(b) temporary and permanent drainage works including alteration of existing drainage, connections to existing drainage and creation of new sustainable drainage including attenuation pond(s); and
(c) temporary construction areas, lay down areas and haul roads.
Work No 15E — Installation of cable ducting for two additional circuits for later installation of additional electrical connections between Work No. 14A to a point within Work No. 15 to the east of Work No. 15B.
Work No. 16 — Electrical works to connect to the National Grid substation including—
(a) works needed to connect the authorised development to the new National Grid substation including (but not limited to) cabling, cable sealing ends, circuit breakers, surge arrestors, dis-connectors, transformers, busbars and busbar clamp measuring equipment, relay marshalling rooms and electrical earthing works;
(b) installation of up to two buried 400 kilovolts cable circuits with cable ducts (if required) between Work No. 15 and the National Grid substation; including cable ducts, trenchless installation technique pit works including the creation of entrance and exit pits and cable trenching works;
(c) construction of a haul road, temporary construction compound and laydown area; and
(d) creation of access roads to provide operational and maintenance access.
Work No. 17 — Access routes to provide operational access from the public highways to Work Nos. 3 to 16.
In the District of East Suffolk, Suffolk
Compensatory works for Lesser Black Backed Gull comprising—
Work No. 18A — Improvement of existing access, and construction of temporary construction access.
Work No. 18B — The installation of predator exclusion fencing and associated monitoring and management equipment for the purposes of Lesser Black Backed Gull compensation, improvement of access, construction of temporary construction access, working areas and laydown areas.
Associated development in connection with Work Nos. 1 to 3
And in connection with Work Nos. 1 to 3 and to the extent that they do not otherwise form part of any such work, further associated development comprising such other works as may be necessary or expedient for the purposes of or in connection with the relevant part of the authorised development and which fall within the scope of the work assessed by the environmental statement, including—
(a) scour protection around the foundations of the offshore structures;
(b) cable protection measures such as rock placement and the placement of rock and/or concrete mattresses, with or without frond devices;
(c) dredging;
(d) the removal of material from the seabed required for the construction of Work Nos. 1 to 3 and the disposal of inert material of natural origin and/or dredged material within the Order limits produced during construction drilling, and seabed preparation for the installation of the foundations of the offshore structures or during seabed preparation for cable laying;
(e) creation and use of temporary vessel laydown areas, use of cable anchors;
(f) removal of static fishing equipment;
(g) lighting; and
(h) erection of temporary piled structures during construction.
Associated development in connection with Work Nos. 4 to 18B
And in connection with Work Nos. 4 to 18B to the extent that they do not otherwise form part of any such work, further associated development comprising such other works as may be necessary or expedient for the purposes of or in connection with the relevant part of the authorised development and which fall within the scope of the work assessed by the environmental statement, including—
(a) haul roads, ramps, watercourse and other temporary crossings, means of access and other vehicular and/or pedestrian means of access, including creation of new tracks and footpaths, and/or widening, upgrades, alterations and improvements of existing roads, tracks and footpaths;
(b) bunds, embankments, swales, landscaping, fencing and boundary treatments and alteration of groynes;
(c) provision of temporary and permanent ecological and environmental mitigation, enhancement and compensation works;
(d) spoil storage and associated control measures;
(e) jointing bays, link boxes, cable ducts, cable protection, joint protection, manholes, marker posts, underground cable markers, tiles and tape, signage and lighting and other works associated with laying cables and/or pulling cables through cable ducts;
(f) works for the provision of apparatus including cabling, water and electricity supply works, foul drainage provision, surface water management systems, temporary drainage during installations of cables and culverting;
(g) works to alter the position of apparatus, including mains, sewers, drains and cables;
(h) works to alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses;
(i) landscaping works and habitat creation including installation of bird and bat boxes, creation of hibernacula and reinforcement of existing planting to provide habitat;
(j) works for the benefit or protection of land affected by the authorised development;
(k) working sites in connection with the construction of the authorised development, construction lay down areas and compounds and storage compounds;
(l) works of restoration; and
(m) fencing or other means of enclosure.
PART 2 Ancillary works
Works within the Order limits which fall within the scope of the work assessed by the environmental statement comprising—
(a) intrusive ground investigations including the making of boreholes and trial pits;
(b) temporary landing places, moorings or other means of accommodating vessels in the construction and / or maintenance of the authorised development;
(c) marking buoys, beacons, fenders and other navigational warning or ship impact protection works; and
(d) temporary works for the benefit or protection of land, watercourses or structures affected by the authorised development.
Article 2
PART 1 Requirements
Time limits
1 The authorised development must commence no later than the expiration of seven years beginning with the date this Order comes into force.
Offshore design parameters
2 (1) The wind turbine generators to be constructed and operated within Work No. 1 of the authorised development must be located within the area delineated by the co-ordinates in the table in Schedule 16 (offshore co-ordinates) and shown as Work No. 1 on sheet 2 of the offshore works plan.
(2) The offshore works must be constructed in accordance with the parameters set out in Table 1 below.
Table 1
Parameter | Value
Maximum number of wind turbine generators | 79
Maximum total rotor swept area (metres squared) | 4,194,340
Maximum height of wind turbine generators when measured from LAT to the tip of the vertical blade (metres) | 370
Maximum rotor diameter of each wind turbine generator (metres) | 340
Minimum distance from MHWS to the lowest point of the rotating blade for each wind turbine generator (metres) | 28
Minimum distance between wind turbine generators (in all directions measured from the centre point of each wind turbine generator) (metres) | 830
Maximum pile diameter of single pile structures (metres) | 15
Maximum pile diameter of three pile structures (metres) | 4
Maximum pile diameter of four pile structures (metres) | 3.5
Maximum total seabed footprint for wind turbine generators (excluding scour protection) (metres squared) | 99,274
Maximum total seabed footprint for wind turbine generators (including scour protection) (metres squared) | 834,896
Maximum total scour protection volume for wind turbine generator foundations (metres cubed) | 1,248,850
Maximum total length of inter-array cables (kilometres) | 200
Maximum inter-array cable protection area (metres squared) | 321,600
Maximum inter-array cable protection volume (metres cubed) | 187,600
Maximum number of offshore substations | 2
Maximum dimensions of offshore substations: Height when measured from LAT (excluding towers, helipads, mast and cranes) (metres) Length (metres) Topside width (metres) | 105 125 100
Maximum total seabed footprint for offshore substation platforms (excluding scour protection) (metres squared) | 3,700
Maximum total seabed footprint for offshore substation platform foundations (including scour protection) (metres squared) | 72,985
Maximum total scour protection volume for offshore substation platforms foundations (metres cubed) | 125,450
Maximum total length of export cables (kilometres) | 196
Maximum export cable protection area (metres squared) | 178,304
Maximum export cable protection volume (metres cubed) | 129,691
(3) Any part of Work No. 2(c) and any associated development or ancillary works located within the Sunk and Trinity Deep Water Routes, as shown shaded yellow on the deep water route cable installation area (future dredging depths) plan, must be installed and maintained at a level which would not impede the dredging of those parts of the Sunk and Trinity Deep Water Routes as follows—
(a) shown shaded in yellow and outlined in a bold black line (and labelled Sunk Area A (22m CD)) to a level of 22 metres below Chart Datum;
(b) shown shaded in yellow and outlined in a blue dotted line (and labelled Trinity (22m CD)) to a level of 22 metres below Chart Datum; and
(c) shown shaded in yellow and cross hatched in orange (and labelled Sunk Area B (19m CD)) to a level of 19 metres below Chart Datum.
Aviation safety
3 (1) The undertaker must exhibit such lights, with such shape, colour and character and at such times as are required by Air Navigation Order 2016 (with any reference to the territorial sea being read as a reference to the Renewable Energy Zone established under section 84 of the 2004 Act) and/or determined necessary for aviation safety as directed in writing by the Civil Aviation Authority, in consultation with the Defence Infrastructure Organisation Safeguarding. Lighting installed specifically to meet Ministry of Defence aviation safety requirements must remain operational for the life of the authorised development unless otherwise agreed with the Ministry of Defence.
(2) The undertaker must notify the Defence Infrastructure Organisation Safeguarding, at least 14 days prior to the commencement of the offshore works, of the following—
(a) the date of the commencement of construction of the offshore works;
(b) the date any wind turbine generators are brought into use;
(c) the maximum height of any construction equipment to be used;
(d) the maximum heights of any wind turbine generator, meteorological mast and offshore electrical platform to be constructed;
(e) the latitude and longitude of each wind turbine generator, meteorological mast and offshore electrical platform to be constructed; and
the Defence Infrastructure Organisation Safeguarding must be notified of any changes to the information supplied under this sub-paragraph and of the completion of the construction of the offshore works.
(3) The lights installed in accordance with sub-paragraph (1) will be operated at the lowest permissible lighting intensity level.
Stages of authorised development onshore
4 (1) The onshore works must not be commenced until notification has been submitted to the discharging authority detailing whether the onshore works will be constructed—
(a) in a single stage; or
(b) in two or more stages.
(2) The onshore works must not be commenced until details of the stages of the onshore works have been submitted to the discharging authority.
(3) The onshore works must be constructed in accordance with the details provided under sub-paragraph (2) of this requirement.
Onshore substation works, design and landscaping
5 (1) Construction of Work No. 15B (the onshore electrical substation infrastructure) must not commence until details of—
(a) the layout;
(b) scale;
(c) existing and proposed finished ground levels;
(d) external hard surfacing materials;
(e) the dimensions, colour and materials used for the buildings;
(f) security fencing, height, colour and materials;
(g) vehicular and pedestrian access, parking and circulation areas;
(h) operational external lighting; and
(i) proposed and existing functional services above and below ground, including drainage, surface water drainage, power and communications cables and pipelines, manholes and supports;
have been submitted to and approved by the discharging authority.
(2) The details submitted under sub-paragraph (1) of this requirement must be in accordance with sub-paragraph (4) and in accordance with the onshore substation design principles document, with the exception of the design review process set out in section 2.3 “design review process” thereof and any design guide. The design review process must accord with sub-paragraph (3) of this requirement.
(3) The details submitted under sub-paragraph (1) of this requirement must not be submitted to the discharging authority for approval until an independent design review panel has reviewed the details and made any written recommendations to the undertaker about those details. Any recommendations received by the undertaker from the independent design review panel must accompany the details submitted to the discharging authority for approval under sub-paragraph (1) of this requirement.
(4) In relation to Work No. 15B—
(a) the highest part of any building, any external electrical equipment or enclosure, excluding lightning rods, must not exceed 15 metres above finished ground level (50.775 metres Ordnance Datum);
(b) the total area of the fenced compound (excluding its accesses) must not exceed 58,800 metres squared; and
(c) the lightning rods within the fenced compound area must not exceed a height of 18 metres above finished ground level (53.775 metres Ordnance Datum).
(5) Work No. 15B must be carried out in accordance with the details approved under sub-paragraph (1).
(6) Work No. 15B must not be commenced until a written landscaping scheme and associated works programme, and hard and soft landscape works and detailed planting plans to an appropriate scale in accordance with the outline landscape and ecological management plan for Work No. 15 has been submitted to and approved by the discharging authority.
(7) The written landscaping scheme to be submitted under sub-paragraph (6) must include details of all proposed hard and soft landscaping works including—
(a) location, number, species, size and planting density of any proposed planting including any trees; and
(b) implementation timetables for all landscaping works within Work No. 15.
(8) The landscaping of Work No. 15 must be carried out in accordance with the details approved under sub-paragraph (6).
(9) The landscaping of Work No. 15 must be maintained throughout the operation of Work No. 15B.
Code of construction practice
6 (1) No stage of the onshore works may commence until for that stage a final version of a code of construction practice has been submitted to and approved by the discharging authority in consultation with the relevant statutory nature conservation body, the Environment Agency, the highway authority, the lead local flood authority, Historic England (where relevant), the Forestry Commission (where relevant), and to the extent that it relates to works seaward of mean high water springs, the MMO.
(2) The final code of construction practice for each stage submitted under sub-paragraph (1) must be in accordance with the code of construction practice (October 2025, Revision G) certified under article 43 of this Order.
(3) The onshore works must be carried out in accordance with the approved final version of the code of construction practice.
Traffic and access plans
7 (1) No stage of the onshore works may be commenced until for that stage the following plans have been submitted to and approved by the discharging authority—
(a) the construction traffic management plan;
(b) the workforce travel plan; and
(c) the public access management plan.
(2) The plans submitted under sub-paragraph (1) must be in accordance with the outline plans certified under this Order.
(3) The onshore works must be carried out in accordance with the approved plans as applicable in each stage.
Permanent highway accesses
8 (1) No new permanent means of access to a highway to be used by vehicular traffic, or any permanent alteration to an existing means of access to a highway used by vehicular traffic may be formed until written details of the design, layout and siting of that new or altered access have been submitted to and approved by the discharging authority in consultation with the highway authority.
(2) Any new permanent means of access to a highway or any permanent alteration to an existing means of access must be constructed in accordance with the details approved under sub-paragraph (1).
Onshore archaeology
9 (1) Geoarchaeological and archaeological evaluation and mitigation must be carried out in accordance with the archaeological mitigation strategy.
(2) No stage of the onshore works may be commenced until, for that stage, a geo-archaeological and archaeological written scheme(s) of investigation in accordance with the outline onshore written scheme of investigation as appropriate for the relevant stage has been submitted to and approved by the discharging authority.
(3) The onshore works must be carried out in accordance with the approved geo-archaeological and archaeological written scheme(s) of investigation as applicable in each stage as approved under sub-paragraph (2).
(4) Intrusive onshore site preparation works must not take place until a geo-archaeological and archaeological written scheme(s) of investigation in accordance with the outline onshore written scheme of investigation as appropriate has been submitted to and approved by the discharging authority. The geo-archaeological and archaeological written scheme(s) of investigation required under this sub-paragraph must be implemented as approved.
(5) The geo-archaeological and archaeological post investigation assessment must be completed in accordance with the programme set out in the archaeological mitigation strategy and any relevant written scheme of investigation, and provision made for analysis, publication, and dissemination of results and archive deposition.
(6) For the purposes of this requirement “intrusive” in relation to onshore site preparation works means works within the onshore Order limits that require the breaking of the surface of the land.
Landscape and Ecological Management Plan
10 (1) No stage of the onshore works may commence until for that stage a written landscape and ecological management plan in accordance with the outline landscape and ecological management plan as appropriate for the relevant stage, has been submitted to and approved by the discharging authority in consultation with the relevant statutory nature conservation body, the Environment Agency, the lead local flood authority, Historic England (where relevant), the Forestry Commission (where relevant), and to the extent that it relates to works seaward of mean high water springs, the MMO.
(2) The landscape and ecological management plan(s) submitted under sub-paragraph (1) must include an implementation timetable.
(3) The onshore works must be carried out in accordance with the landscape and ecological management plans approved under sub-section (1), as applicable in each stage.
(4) Onshore site preparation works must only take place in accordance with the relevant details set out in the outline landscape and ecological management plan as certified in accordance with article 43 (certification of plans, etc.).
Soil Management Plan
11 (1) No stage of the onshore works may be commenced until, for that stage, a soil management plan in accordance with the measures included in the code of construction practice (October 2025, Revision G), as appropriate for the relevant stage, has been submitted to and approved by the discharging authority.
(2) The onshore works must be carried out in accordance with the approved soil management plan(s) as applicable in each stage.
Protected species onshore
12 (1) No stage of the onshore works other than surveying and investigation necessary to comply with this requirement may be undertaken until, for that stage, pre-construction survey work has been carried out to establish whether a European protected species or nationally protected species under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 is present on any of the land affected, or likely to be affected, by any part of that stage of the onshore works.
(2) The compensatory works other than surveying and investigation necessary to comply with this requirement may not be undertaken until, for those works, pre-construction survey work has been carried out to establish whether a European protected species or nationally protected species under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 is present on any of the land affected, or likely to be affected, by any part of the compensatory works.
(3) Where a European protected species or nationally protected species under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 is shown to be present, the stage of the onshore works or compensatory works likely to affect the species must not be commenced until a scheme of protection and mitigation measures for that stage has been submitted to ... the discharging authority in the case of the onshore works, or the relevant planning authority in the case of compensatory works.
(4) Each stage of the onshore works or the compensatory works which requires a scheme of protection and mitigation measures in accordance with sub-paragraph (3) of this requirement must be carried out in accordance with the approved scheme as applicable in each stage.
(5) In this paragraph, “European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017.
Ground water monitoring
13 (1) No stage of the onshore works for which a groundwater monitoring plan is required in accordance with the outline groundwater monitoring plan, must be commenced until, for that stage a groundwater monitoring plan has been submitted to and approved by the discharging authority.
(2) Sub-paragraph (1) does not apply to any works or surveying and investigation necessary to inform the preparation of a groundwater monitoring plan.
(3) Any plan approved under sub-paragraph (1) must be implemented as approved.
Restoration of land used temporarily for construction
14 Subject to requirement 19(4), any land which is used temporarily for the construction of the onshore works and not ultimately incorporated into permanent works or approved landscaping, must be reinstated within twelve months of the completion of the relevant stage of the onshore works or such other time period as may be agreed in writing with the discharging authority.
Control of noise during operational stage
15 (1) The noise rating level for the standard operation of Work No. 15B (the onshore electrical substation) must not exceed—
(a) 32 decibel LAr,Tr at any time at a free field location immediately adjacent to the following noise sensitive locations—
(i) Waterhouse Farm (Grid reference 607256 228374);
(ii) Lilleys Farm (Grid reference 607731 227827); and
(b) 31 decibel LAr,Tr at any time at a free field location immediately adjacent to Normans Farm (Grid reference 608446 228492).
(2) Prior to commencement of operation of Work No. 15B, a noise investigation protocol must be submitted to and approved by the discharging authority. The protocol must set out a process for the investigation of cumulative operational noise from the proposed National Grid substation and the proposed North Falls substation as and when one or both is operational.
(3) The determination of LAr,Tr must be in accordance with BS 4142:2014+A1:2019. The reference method set out in Annex D to BS 4142:2014+A1:2019 (or any successor thereto) must be used in the assessment of whether tonal penalties apply. The noise investigation protocol must identify—
(a) the required meteorological and other conditions under which the measurements will be taken, acknowledging that data obtained during emergency operation or testing of certain plant and equipment is not to be taken into account, and
(b) suitable monitoring locations (and alternative locations if appropriate).
(4) Within 12 months of commencement of operation of Work No. 15B, the undertaker must carry out noise evaluations at the noise sensitive locations listed in sub-paragraphs (1)(a) and (1)(b) and submit the results to the discharging authority. If the noise rating levels are found to be exceeded, the undertaker must provide details of further noise monitoring and mitigation to be agreed in writing by the discharging authority.
(5) For the purposes of this requirement “standard operation” means the ordinary operation of the substations excluding emergency operation and the testing of plant and equipment associated with emergency operation.
Skills and employment strategy
16 (1) No onshore works or offshore works other than Work Nos. 13, 13A, 18A and 18B must be commenced until a skills and employment strategy, in accordance with the outline skills and employment strategy has been submitted to and approved by the discharging authority.
(2) The skills and employment strategy must be implemented in accordance with the approved details.
Onshore build options
17 (1) Other than in relation to Work Nos. 13 and 13A, the undertaker may commence or exercise powers of compulsory acquisition under Part 5 of this Order in relation only to either build option 1 or build option 2.
(2) Other than Work Nos. 13 and 13A, the onshore works must not commence until notification has been submitted to the discharging authority as to whether the undertaker intends to commence build option 1 or build option 2.
(3) In the event that the undertaker notifies under sub-paragraph (2) that build option 2 is to be implemented, the width (being measured at 90 degrees to the orientation of the cables within each work) of each of Work Nos. 4, 5, 6, 7, 8, 9, 10, 11 and 12 must not exceed 45 metres and Work No. 14, when including Work No. 14D, must not exceed 60 metres; except—
(a) where trenchless techniques are to be used to install the cables, where the width must not exceed 90 metres;
(b) as necessary to create a transitional (tapered) area between the width for the trenched installation and the width for the trenchless installation compounds, to such extent as is necessary to properly space out the cables approaching the trenchless installation compound, up to the maximum width of the trenchless installation compound concerned in each relevant location; or
(c) where necessary to provide connections to accesses, haul routes and temporary construction compounds as authorised by Schedule 1 where the width may extend to that necessary to effect the connection required.
Compensatory Works
18 (1) The compensatory works must not be commenced under this Order until details of—
(a) vehicular and pedestrian access for construction; and
(b) a construction method statement,
have been submitted to and approved by the relevant planning authority.
(2) The compensatory works must be carried out in accordance with the approved details.
Reuse of temporary works with the onshore works for North Falls
19 (1) In the event that any temporary works which have been constructed pursuant to any development consent order that may be made by the Secretary of State in relation to North Falls are proposed to be reused by the undertaker in connection with the authorised development, such reuse must not be commenced until a scheme which accords with sub-paragraph (2) has been submitted to and approved by the discharging authority.
(2) The scheme to be submitted for approval under sub-paragraph (1) must include details of the temporary works to be reused and a timetable for their reuse and restoration or reinstatement.
(3) Any scheme approved under sub-paragraph (1) must be implemented as approved.
(4) Where in the event that any temporary works which have been constructed as part of the onshore works pursuant to this Order are to be subsequently used for the purposes of the construction of North Falls, the undertaker will not be required to maintain, restore or reinstate any such temporary works.
Biodiversity net gain
20 (1) No stage of Work No. 15 (substation zone works) (excluding any onshore site preparation works) may commence until—
(a) a biodiversity net gain strategy which accords with the outline biodiversity net gain information comprising the Onshore Biodiversity Net Gain Indicative Design Stage Report has been approved in writing by the discharging authority;
(b) the biodiversity gain strategy must set out how it will secure a minimum of 10% biodiversity net gain for all of the onshore works of the authorised development, using a biodiversity metric approved by the discharging authority; and
(c) the biodiversity net gain strategy must be accompanied by copies of any legal agreements with any offsite provider which demonstrate that the delivery of any offsite biodiversity units which contribute towards achieving a minimum of 10% biodiversity net gain for the onshore works of the authorised development, and the maintenance of the offsite works for a period of thirty years from the date of the final commissioning of the authorised development, is secured.
(2) The location for delivery of offsite biodiversity units is to follow a prioritisation exercise, as described in the Onshore Biodiversity Net Gain Indicative Design Stage Report, with priority given to areas inside or within close proximity to the proposed Order limits (within Tendring District or same National Character Area within Essex).
(3) The biodiversity net gain strategy must be implemented as approved.
(4) Any remaining shortfall in biodiversity units identified following detailed design will be secured prior to construction works being completed.
(5) In this paragraph “offsite biodiversity units” means any contribution to the minimum 10% biodiversity net gain for the onshore works of the authorised development that are to take place outside of the Order limits.
Offshore decommissioning
21 The offshore works must not be commenced until a written decommissioning programme in compliance with any notice served upon the undertaker by the Secretary of State pursuant to section 105(2) (requirement to prepare decommissioning programmes) of the 2004 Act has been submitted to ... the Secretary of State.
Onshore decommissioning
22 (1) A written scheme of decommissioning for the onshore works must be submitted to and approved by the discharging authority not less than six months prior to any decommissioning works commencing.
(2) The written scheme of decommissioning submitted for approval under sub-paragraph (1) for the onshore works must include a code of construction practice.
(3) The scheme approved under sub-paragraph (1) must be implemented as approved in the carrying out of any decommissioning works or relevant part of it.
Migratory bat monitoring
23 (1) Work No.1 must not be commenced until a migratory bat monitoring plan, which must detail proposals for pre-construction, construction, and post-construction monitoring of migratory bats within and in proximity to the array area, has been submitted to and approved by the Secretary of State in consultation with the relevant statutory nature conservation bodies, the MMO, and the Bat Conservation Trust.
(2) The migratory bat monitoring plan must include—
(a) the location(s) where the monitoring will be undertaken and the suitability of that location or locations, and confirmation that any necessary landowner agreement(s) and approvals are in place;
(b) details of any arrangements made with a third party for implementation of the monitoring;
(c) details for the monitoring and reporting of the migration of bats between the United Kingdom and the European mainland and the behaviour of migratory bats within and in proximity to the array area, including—
(i) survey methods;
(ii) survey programmes and timings;
(iii) limitations; and
(iv) the format, content, and timetables for the monitoring reports to be delivered;
(d) details of data-sharing including how monitoring data will be provided to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre(s), and any relevant ecological recording schemes.
(3) The undertaker must carry out the monitoring of migratory bats in accordance with the migratory bat monitoring plan as approved under sub-paragraph (1) and provide the monitoring reports to the Secretary of State, the relevant statutory nature conservation bodies, the MMO, and the Bat Conservation Trust in the agreed format and in accordance with the agreed timetable, unless otherwise agreed in writing by the Secretary of State.
(4) Any monitoring report compiled in accordance with the migratory bat monitoring plan as approved under sub-paragraph (1) must be made publicly available and submitted to the Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre(s), and any relevant ecological recording schemes, unless otherwise agreed in writing by the Secretary of State in consultation with the relevant statutory nature conservation bodies and the MMO.
Landfall drilling risk assessment
24 (1) No part of Work No. 4 may commence until a landfall drilling environmental risk assessment, in accordance with the approach set out in the code of construction practice, has been submitted to and approved by the discharging authority in consultation with the relevant statutory nature conservation body and the Environment Agency.
(2) Any control measures identified in the risk assessment submitted under sub-paragraph (1) must be implemented as approved.
Farmland bird compensation
25 (1) In this requirement—
“compensation measure” means habitat creation or improvement designed to compensate for the loss and / or displacement of skylark and corn bunting territories as a result of the authorised development;
“FBCP” means the farmland bird compensation plan for the delivery of the compensation measure;
“Nature Restoration Fund” means the fund proposed to be established and operated by Defra pursuant to the Planning and Infrastructure Bill for the implementation of strategic mitigation and / or compensation measures or any equivalent fund established ... for that purpose; and
“Nature Restoration Fund Payment” means a contribution to the Nature Restoration Fund to compensate for the loss and / or displacement of skylark and corn bunting territories as a result of the authorised development, the sum of which will be agreed with Defra or another organisation responsible for the operation of the Nature Restoration Fund.
(2) No part of Work No. 15B is to commence until the undertaker has confirmed in writing to the Secretary of State that—
(a) it will make a Nature Restoration Fund Payment wholly in substitution for the compensation measure and that it has received confirmation from Defra or the Nature Restoration Fund operator that suitable measures are available; or
(b) it will submit a FBCP to the Secretary of State for approval.
(3) If the undertaker confirms that it intends to make a Nature Restoration Fund Payment under sub-paragraph (2)(a) then no part of Work No. 15B is to commence until the Secretary of State has provided consent in writing to the Nature Restoration Fund Payment being made in substitution for the compensation measure and the undertaker has complied with any conditions specified by the Secretary of State.
(4) Where the undertaker elects to submit a FBCP under sub-paragraph (2)(b), no part of Work No. 15B is to commence until the FBCP has been submitted to and approved by the Secretary of State in consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure is to be provided.
(5) The FBCP (if required) must include—
(a) an updated assessment of the impact, including loss and / or displacement of territories, that Work No. 15B is likely to have on skylark and corn bunting based on the detailed design of Work No. 15B;
(b) a calculation of the quantum of compensation required to compensate for the impact identified in the updated assessment required under sub-paragraph (a);
(c) the location(s) of where the compensation measure will be delivered and the ecological suitability of that location or locations, including details of the capacity and ability of the compensation areas to successfully compensate for the impact of the authorised development on skylark and corn bunting;
(d) confirmation that the necessary landowner agreement(s) and approvals are in place, including a review mechanism to provide for the scenario where it is necessary to amend the location(s) where the compensation measure will be delivered;
(e) an implementation timetable for delivery of the compensation measure, including any arrangements made with a third party for implementation of the compensation measure;
(f) details of maintenance and biosecurity measures, including any contribution to be made to a third party for the ongoing management and maintenance of the compensation measure;
(g) details for the ongoing monitoring and reporting of the effectiveness of the compensation measure including survey methods, survey programmes, success criteria, and timescales for the monitoring reports to be delivered under sub-paragraph (7);
(h) details of any alternative and / or adaptive management measures, including details of the factors used to trigger any alternative and / or adaptive management measures; and
(i) details of how monitoring and reporting data will be provided in the appropriate formats to the relevant Local Environmental Records Centre(s) and relevant ecological recording schemes, and any potential research collaborations.
(6) Where the FBCP identifies the delivery of the compensation measure in collaboration with one or more third parties the details submitted pursuant to sub-paragraph (5) must identify how the effectiveness of the compensation measure and any requirement for alternative and / or adaptive management measures are to be attributed to the authorised development.
(7) Results from the monitoring and reporting scheme referred to in sub-paragraph (5)(g) must be made publicly available and submitted at least annually to the Secretary of State, the relevant statutory nature conservation body, and the local planning authority for the area in which the compensation measure is to be provided. This must include details of the effectiveness of the compensation measure delivered. If the undertaker, or on receipt of a monitoring report, the Secretary of State, determines that the compensation measure delivered has been ineffective the undertaker must provide proposals for any alternative and / or adaptive management measures to address this. Any proposals to address the ineffectiveness of the compensation measure must thereafter be implemented by the undertaker as approved in writing by the Secretary of State in consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure is to be provided.
(8) The undertaker must implement the measures set out in the FBCP as approved by the Secretary of State, unless otherwise agreed by the Secretary of State following consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure is to be provided.
(9) The compensation measure as approved in the FBCP must be maintained by the undertaker (or at its expense) for the operational lifetime of the authorised development and only decommissioned following approval in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
(10) The FBCP approved under sub-paragraph (4) includes any amendments that may subsequently be approved in writing by the Secretary of State, including any amendments to the location(s) where the compensation measure will be delivered, as referred to in sub-paragraph (5)(c).
Requirement for written approval
26 Where under any of the above requirements the approval or agreement of the Secretary of State, the discharging authority or the relevant planning authority is necessary, that approval or agreement must be given in writing.
Amendments to approved details
27 With respect to any requirement which requires the authorised development to be carried out in accordance with the details approved under this Schedule, the approved details are taken to include any amendments that may subsequently be approved or agreed by the Secretary of State, the discharging authority, or the relevant planning authority.
PART 2 Approval of matters specified in requirements
Interpretation
1 In this Part of this Schedule “application” means an application for any consent, agreement or approval required by a requirement whether or not the application seeks to discharge a requirement in whole or in part.
Applications made under requirements
2 (1) Where an application has been made to the discharging authority or the relevant planning authority for any agreement or approval required pursuant to a requirement included in this Order, the discharging authority or relevant planning authority must give notice to the undertaker of their decision, including the reasons, on the application, within a period of 8 weeks beginning with—
(a) the day immediately following that on which the application is received by the discharging authority or the relevant planning authority;
(b) where further information is requested under paragraph 3, the day immediately following that on which further information has been supplied by the undertaker; or
(c) such longer period as may be agreed by the undertaker and the discharging authority or the relevant planning authority.
(2) In determining any application made to the discharging authority or relevant planning authority for any consent, agreement or approval required by a requirement contained in Part 1 of Schedule 2 of this Order, the discharging authority or relevant planning authority may—
(a) give or refuse its consent, agreement or approval; or
(b) give its consent, agreement or approval either subject to reasonable conditions, or unconditionally,
and where consent, agreement or approval is refused or granted subject to conditions the discharging authority or relevant planning authority must provide its reasons for that decision with the notice of the decision.
(3) With the exception of Requirements 5, 12 and 18, in the event that the discharging authority or relevant planning authority does not determine an application within the period set out in sub-paragraph (1), the discharging authority or relevant planning authority is to be taken to have granted all parts of the application (without any condition or qualification) at the end of that period.
(4) With respect to Requirements 5, 12 and 18, where an application has been made to the discharging authority or relevant planning authority for any agreement or approval required pursuant to those requirements and the discharging authority or the relevant planning authority has not given notice to the undertaker of their decision within the period set out in sub-paragraph (1), within a period of 8 weeks or by the conclusion of such period as may be extended by agreement under sub-paragraph (1)(c), then the application shall be deemed to have been refused consent.
Further information
3 (1) Where an application has been made under paragraph 2 the discharging authority or the relevant planning authority has the right to request such reasonable further information from the undertaker as is necessary to enable it to consider the application.
(2) If the discharging authority or the relevant planning authority considers further information is needed, and the requirement does not specify that consultation with a requirement consultee is required, it must, within 21 days of receipt of the application, notify the undertaker in writing specifying the further information required.
(3) If the requirement indicates that consultation must take place with a consultee the discharging authority or the relevant planning authority must issue the consultation to the requirement consultee within five days of receipt of the application. Where the consultee requires further information they must notify the discharging authority or relevant planning authority in writing specifying the further information required within 14 days of receipt of the consultation. The discharging authority or the relevant planning authority must notify the undertaker in writing specifying any further information requested by the consultee within five working days of receipt of such a request.
(4) In the event that the discharging authority or the relevant planning authority does not give such notification as specified in sub-paragraphs (2) or (3) it is deemed to have sufficient information to consider the application and is not thereafter entitled to request further information without the prior agreement of the undertaker.
Provision of information by Consultees
4 (1) Any consultee who receives a consultation under paragraph 3(3) must respond to that request within 28 days from receipt unless sub-paragraph (2) of this paragraph applies.
(2) Where any consultee requests further information in accordance with the timescales set out in paragraph 3(3) then they must respond to the consultation within ten working days from the receipt of the further information requested.
Fees
5 Where an application is made to the discharging authority or the relevant planning authority for agreement or approval in respect of a requirement the fee for the discharge of conditions as specified in Regulation 16(1)(b) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (or any regulations replacing the same) is to be paid by the undertaker to the discharging authority or the relevant planning authority in accordance with these regulations unless a bespoke arrangement has been agreed between the undertaker and discharging authority or the relevant planning authority, and legally secured.
Appeal
6 (1) The undertaker may appeal to the Secretary of State in the event that the discharging authority or the relevant planning authority refuses an application, including any deemed refusal of consent under paragraph 2(4), for any consent, agreement or approval required by a requirement included in this Order, or grants it subject to conditions.
(2) Any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination, or (where no determination has been made) the expiry of the time period set out in paragraph 2(1), giving rise to the appeal referred to in sub-paragraph (1).
(3) The appeal process will be as follows—
(a) the undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the discharging authority or the relevant planning authority and any consultee required to be consulted pursuant to the requirement which is the subject of the appeal (together with the undertaker, these are the “appeal parties”);
(b) as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person (the “appointed person”) to determine the appeal and must notify the appeal parties of the identity of the appointed person and the address to which all correspondence for their attention should be sent, the date of such notification being the “start date” for the purposes of this sub-paragraph (3);
(c) the discharging authority or the relevant planning authority and any consultee required to be consulted pursuant to the requirement which is the subject of the appeal must submit written representations to the appointed person in respect of the appeal within fifteen working days of the start date and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;
(d) the appeal parties must make any counter-submissions to the appointed person within ten working days of receipt of written representations pursuant to sub-paragraph (3)(c); and
(e) the appointed person must make their decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within 20 working days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (3)(d).
(4) The appointment of the person pursuant to sub-paragraph (3)(b) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.
(5) In the event that the appointed person considers that further information is necessary to consider the appeal, the appointed person must notify the appeal parties in writing specifying the further information required and the date by which the information is to be submitted, such date to be set having regard to the timescales in sub-paragraph (3).
(6) Any further information required under sub-paragraph (5) must be provided by the appeal party from whom the further information was requested to the appointed person and the other appeal parties on the date specified by the appointed person (the “specified date”), and the appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of written representations to the appointed person within ten working days of the specified date but otherwise is to be in accordance with the process and time limits set out in sub-paragraphs (3)(c) to (3)(e).
(7) On an appeal under this paragraph, the appointed person may—
(a) allow or dismiss the appeal; or
(b) reverse or vary any part of the decision of the discharging authority or the relevant planning authority (whether the appeal relates to that part of it or not);
and may deal with the application as if it had been made to the appointed person in the first instance.
(8) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the relevant time limits.
(9) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.
(10) The decision of the appointed person on an appeal is to be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.
(11) If an approval is given by the appointed person pursuant to this paragraph, it is to be deemed to be an approval for the purpose of Part 1 of Schedule 2 (requirements) as if it had been given by the discharging authority or the relevant planning authority.
(12) Save where a direction is given pursuant to sub-paragraph (13) requiring the costs of the appointed person to be paid by the discharging authority or the relevant planning authority, the reasonable costs of the appointed person must be met by the undertaker.
(13) On application by the discharging authority or the relevant planning authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to relevant guidance on the Planning Practice Guidance website or any official circular or guidance which may from time to time replace it.
Article 10
In the District of Tendring—
(1) Street | (2) Extent as shown on the street works and access plan
Holland Haven Country Park car park access road | Between points labelled AA and AB on sheet 1
Access behind the seawall | Between points labelled AC and AD on sheets 1 and 2
Short Lane | Between points labelled AE and AF on sheets 2 and 3
Short Lane | Between points labelled AG and AH on sheets 2 and 3
Access track between Manor Farm and Short Lane | Between points labelled AI and AJ on sheets 3 and 4
B1032, Clacton Road | Between points labelled AK and AL on sheets 3 and 4
Little Clacton Road | Between points labelled AM and AN on sheet 4
B1033, Thorpe Road | Between points labelled AO and AP on sheet 6
B1034, Sneating Hall Lane | Between points labelled AQ and AR on sheets 6 and 7
Damant’s Farm Lane | Between points labelled AS and AT on sheet 7
B1414, Landemere Road | Between points labelled AU and AV on sheet 8
Golden Lane | Between points labelled AW and AX on sheet 8
Access track from Golden Lane | Between points labelled AY and AZ on sheet 8
B1035, Tendring Road | Between points labelled BA and BB on sheet 9
B1035, Tendring Road | Between points labelled BC and BD on sheet 9
Swan Road | Between points labelled BE and BF on sheet 9
B1035, Thorpe Road | Between points labelled BG and BH on sheet 9
Access track from Lodge lane | Between points labelled BI and BJ on sheet 10
Lodge Lane | Between points labelled BK and BL on sheet 10
Wolves Hall Lane | Between points labelled BM and BN on sheet 11
Stones Green Road | Between points labelled BO and BP on sheets 11 and 12
B1035 | Between points labelled BQ and BR on sheets 12
Access track to Wix Farms from B1035 | Between points labelled BS and BT on sheet 12
Access track to Wix Farms from Colchester Road | Between points labelled BU and BV on sheet 12
B1035 | Between points labelled BW and BX on sheet 12
Access track to Wix Farms from A120 | Between points labelled BY and BZ on sheets 12 and 13
A120 | Between points labelled CA and CB on sheets 12 and 13
Access track to A120 from Bradfield Lodge | Between points labelled CC and CD on sheet 13
B1035, Clacton Road | Between points labelled CE and CF on sheet 13
A120, Pelhams Corner | Between points labelled CG and CH on sheet 15
Bentley Road | Between points labelled CI and CJ on sheets 14 and 15
Payne’s Lane | Between points labelled CK and CL on sheets 14, 15 and 16
Spratts Lane | Between points labelled CM and CN on sheet 16
Barlon Road | Between points labelled CO and CP on sheets 16 and 17
Access track from Barlon Road to Carrington Road | Between points labelled CQ and CR on sheets 16 and 17
Access track to Cattisgreen Farm | Between points labelled CS and CT on sheets 17 and 18
Ardleigh Road | Between points labelled CU and CV on sheets 17 and 18
Grange Road | Between points labelled CW and CX on sheets 17 and 18
Articles 13, 14 and 16
PART 1 Streets to be temporarily restricted
In the District of Tendring—
(1) Street or right of way to be temporarily closed or restricted | (2) Extent of temporary restriction
Holland Haven Country Park car park access road | Between points labelled AA and AB on sheet 1
Access behind the seawall | Between points labelled AC and AD on sheets 1 and 2
Short Lane | Between points labelled AE and AF on sheets 2 and 3
Short Lane | Between points labelled AG and AH on sheets 2 and 3
Access track between Manor Farm and Short Lane | Between points labelled AI and AJ on sheets 3 and 4
B1032, Clacton Road | Between points labelled AK and AL on sheets 3 and 4
Little Clacton Road | Between points labelled AM and AN on sheet 4
B1033, Thorpe Road | Between points labelled AO and AP on sheet 6
B1034, Sneating Hall Lane | Between points labelled AQ and AR on sheets 6 and 7
Damant’s Farm Lane | Between points labelled AS and AT on sheet 7
B1414, Landemere Road | Between points labelled AU and AV on sheet 8
Golden Lane | Between points labelled AW and AX on sheet 8
Access track from Golden Lane | Between points labelled AY and AZ on sheet 8
B1035, Tendring Road | Between points labelled BA and BB on sheet 9
B1035, Tendring Road | Between points labelled BC and BD on sheet 9
Swan Road | Between points labelled BE and BF on sheet 9
B1035, Thorpe Road | Between points labelled BG and BH on sheet 9
Access track from Lodge lane | Between points labelled BI and BJ on sheet 10
Lodge Lane | Between points labelled BK and BL on sheet 10
Wolves Hall Lane | Between points labelled BM and BN on sheet 11
Stones Green Road | Between points labelled BO and BP on sheets 11 and 12
B1035 | Between points labelled BQ and BR on sheets 12
Access track to Wix Farms from B1035 | Between points labelled BS and BT on sheet 12
Access track to Wix Farms from Colchester Road | Between points labelled BU and BV on sheet 12
B1035 | Between points labelled BW and BX on sheet 12
Access track to Wix Farms from A120 | Between points labelled BY and BZ on sheets 12 and 13
A120 | Between points labelled CA and CB on sheets 12 and 13
Access track to A120 from Bradfield Lodge | Between points labelled CC and CD on sheet 13
B1035, Clacton Road | Between points labelled CE and CF on sheet 13
A120, Pelhams Corner | Between points labelled CG and CH on sheet 15
Bentley Road | Between points labelled CI and CJ on sheets 14 and 15
Payne’s Lane | Between points labelled CK and CL on sheets 14, 15 and 16
Spratts Lane | Between points labelled CM and CN on sheet 16
Barlon Road | Between points labelled CO and CP on sheets 16 and 17
Access track from Barlon Road to Carrington Road | Between points labelled CQ and CR on sheets 16 and 17
Access track to Cattisgreen Farm | Between points labelled CS and CT on sheets 17 and 18
Ardleigh Road | Between points labelled CU and CV on sheets 17 and 18
Grange Road | Between points labelled CW and CX on sheets 17 and 18
PART 2 Rights of way to be temporarily closed or restricted
In the District of Tendring—
(1) Street or right of way to be temporarily closed or restricted | (2) Extent of temporary closure or restriction
FP29 167 | Between points Ax and Ay as shown on sheets 1 and 2 of the temporary closure of public rights of way plan
FP6 164 | Between points Bx and By as shown on sheet 4 of the temporary closure of public rights of way plan
FP38 164 | Between points Cx and Cy as shown on sheet 4 of the temporary closure of public rights of way plan
FP11 164 | Between points Dx and Dy as shown on sheet 4 of the temporary closure of public rights of way plan
FP13 180 | Between points Ex and Ey as shown on sheet 7 of the temporary closure of public rights of way plan
FP7 180 | Between points Fx and Fy as shown on sheet 8 of the temporary closure of public rights of way plan
FP4 180 | Between points Gu and Gv, Gw to Gx and Gy to Gz as shown on sheet 8 of the temporary closure of public rights of way plan
FP3 180 | Between points Hw and Hx and Hy to Hz as shown on sheets 8 and 9 of the temporary closure of public rights of way plan
FP1 180 | Between points Ix and Iy as shown on sheet 9 of the temporary closure of public rights of way plan
FP18 180 and FP 18 159 | Between points Jx and Jy as shown on sheet 9 of the temporary closure of public rights of way plan
FP22 179 and FP17 179 | Between points Lw and Lx and Ly to Lz as shown on sheet 10 of the temporary closure of public rights of way plan
FP8 179 | Between points Mw to Mx and My to Mz as shown on sheets 10 and 11 of the temporary closure of public rights of way plan
FP25 179 | Between points Nx and Ny as shown on sheet 11 of the temporary closure of public rights of way plan
FP1 179 | Between points Ox and Oy as shown on sheet 11 of the temporary closure of public rights of way plan
FP31 183 | Between points Px and Py as shown on sheet 12 of the temporary closure of public rights of way plan
FP37 183 | Between points Qx and Qy as shown on sheet 12 of the temporary closure of public rights of way plan
FP32 183 | Between points Rx and Ry as shown on sheet 12 of the temporary closure of public rights of way plan
FP15 183 | Between points Sx and Sy as shown on sheet 12 of the temporary closure of public rights of way plan
FP17 172 | Between points Tx and Ty as shown on sheet 16 of the temporary closure of public rights of way plan
FP16 172 | Between points Ux and Uy as shown on sheets 16 and 17 of the temporary closure of public rights of way plan
FP15 172 | Between points Vx and Vy as shown on sheets 17 and 18 of the temporary closure of public rights of way plan
PART 3 Traffic regulation orders not applicable to the undertaker
(1) Area | (2) Road | (3) Title of order | (4) Extent of exception
District of Tendring | A120 | The A120 Trunk Road (Little Bentley, Essex) (Closure of Gap in the Central Reservation) Order 2019 | All abnormal or oversize vehicles used for or in connection with the construction, maintenance or decommissioning of the authorised development, and any escort vehicles accompanying the abnormal or oversized vehicle turning into Bentley Road from the A120 trunk road.
PART 4 Speed limits
(1) Area | (2) Road name, number, and length | (3) Speed limit
District of Tendring | B1033 (Thorpe Road / Frinton Road) for a distance of 1.4 kilometres shown with a dashed line on sheet 1 on the Temporary Speed Reduction Plans | 40 miles per hour
District of Tendring | Golden Lane for a distance of 1 kilometres shown with a dashed line on sheet 2 of the Temporary Speed Reduction Plans | 40 miles per hour
District of Tendring | B1035 Thorpe Road/Tendring Road/Swan Road/Whitehall Road for a distance of 1.4 kilometres shown with a dashed line on sheet 3 of the Temporary Speed Reduction Plans | 40 miles per hour
District of Tendring | B1035 (Clacton Road) for a distance of 0.5 kilometres as shown with a dashed line on sheet 4 on the Temporary Speed Reduction Plans | 40 miles per hour
District of Tendring | Bentley Road, for a distance of 1.6 kilometres shown with a dashed line on sheets 5 and 6 of the Temporary Speed Reduction Plans | 40 miles per hour
District of Tendring | Ardleigh Road, for a distance of 1.2 kilometres shown with a dashed line on sheet 7 of the Temporary Speed Reduction Plans | 30 miles per hour
Article 15
In the District of Tendring—
(1) Reference as shown on the street works and access plan | (2) Description of new access
AC-0 | Temporary access from the Holland Haven Country Park car park access road to temporary works during construction as shown on sheet 1 of the street works and access plan.
AC-1 | Temporary access from the public highway B1032 Clacton Road, for access to temporary works during construction as shown on sheet 3 of the street works and access plan.
AC-2 | Temporary access from the public highway B1032 Clacton Road, for access to temporary works during construction as shown on sheet 3 of the street works and access plan.
CR-1 | For access across the public highway, Little Clacton Road, Great Holland during construction, as shown on sheet 4 of the street works and access plan.
AC-3A | Temporary access from the public highway B1033 Thorpe Road, for access to temporary works during construction as shown on sheet 6 of the street works and access plan.
AC-3B | Temporary access from the public highway B1033 Thorpe Road, for access to temporary works during construction as shown on sheet 6 of the street works and access plan.
CR-2 | For access across the public highway, B1034 Sneating Hall Lane, Thorpe Cross during construction, as shown on sheets 6 and 7 of the street works and access plan.
CR-3 | For access across the public highway, Damant’s Farm Lane, Thorpe Cross during construction, as shown on sheet 7 of the street works and access plan.
CR-4 | For access across the public highway, B1414, Landemere Road during construction, as shown on sheets 7 and 8 of the street works and access plan.
CR-5 | For access across the public highway, Golden Lane, Thorpe Green during construction, as shown on sheet 8 of the street works and access plan.
AC-4 | From the public highway B1035, Tendring Road, for access to temporary works during construction and operational access, as shown on sheet 9 of the street works and access plan.
AC-5 | From the public highway B1035 Thorpe Road, for access to temporary works during construction as shown on sheet 9 of the street works and access plan.
AC-6 | From the public highway B1035 south of A120 and existing farm access track, for access to temporary works during construction as shown on sheet 12 of the street works and access plan.
CR-6 | For access across the public highway, Lodge Lane, Tendring Lodge during construction, as shown on sheet 10 of the street works and access plan.
CR-7 | For access across the public highway, Wolves Hall Lane, Tendring Green during construction, as shown on sheet 11 of the street works and access plan.
CR-8A and 8B | For access across the public highway, Stones Green Road, Tendring Heath during construction, as shown on sheet 12 of the street works and access plan.
AC-7 | From the public highway B1035 south of A120, for access to temporary works during construction as shown on sheets 12 and 13 of the street works and access plan.
AC-8A | From the public highway B1035 Clacton Road, for access to temporary works during construction as shown on sheet 13 of the street works and access plan.
AC-8B | From the public highway B1035 Clacton Road, for access to temporary works during construction as shown on sheet 13 of the street works and access plan.
AC-9 | From the public highway west of Bentley Road, for access to temporary works during construction as shown on sheets 14 and 15 of the street works and access plan.
AC-10 | From the public highway east of Bentley Road, for access to temporary works during construction as shown on sheets 14 and 15 of the street works and access plan.
AC-11 | From the public highway west of Bentley Road, for access to temporary works during construction as shown on sheets 14 and 15 of the street works and access plan.
CR-9 and 9A | For access across the public highway, Payne’s Lane, Little Bromley during construction, as shown on sheets 14, 15 and 16 of the street works and access plan.
CR-10 and 10A | For access across the public highway, Spratts Lane, Little Bromley during construction, as shown on sheet 16 of the street works and access plan.
CR-11 and 11A | For access across the public highway, Barlon Road, Little Bromley during construction, as shown on sheets 16 and 17 of the street works and access plan.
AC-12, AC-12A and CR12 | From and across the public highway Ardleigh Road, for access to works during construction and operation as shown on sheets 17 and 18 of the street works and access plan.
AC13 | From and across the public highway Ardleigh Road, for access to works during construction and operation as shown on sheets 17 and 19 of the street works and access plan.
SCHEDULE 6 Land of which temporary possession may be taken
Article 30
In the District of Tendring—
(1) Number of plot shown on land plans (onshore) | (2) Purpose for which temporary possession may be taken | (3) Relevant part of authorised development
01-001, 01-002 | Temporary use for access to facilitate construction of the authorised development | Work Nos. 2A, 3, 4, 4B, 5, 5A, 6, 6A and 17
01-003 | Temporary use as a construction compound (Work No 4B) and construction working area to facilitate construction of the authorised development | Work Nos. 2A, 3, 4, 4B, 5, 5A, 6, 6A and 17
01-004, 01-005, 01-006 | Temporary use for access to facilitate construction of the authorised development | Work Nos. 2A, 3, 4, 4B, 5, 5A, 6, 6A and 17
03-002 | Temporary use as a construction compound (Work No 6B) and construction working area to facilitate construction of the authorised development | Work Nos. 5, 5A, 6, 6A, 6B, 7, 7A, 7C, 7D, 7E, 8, 8A and 17
03-004, 03-004A, 03-006 | Temporary use for access to facilitate construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 5, 5A, 6, 6A, 6B, 7, 7A, 7C, 7D, 7E, 8, 8A and 17
03-008, 03-009, 03-010 | Temporary use for access to facilitate construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 5, 5A, 6, 6A, 7, 7A,7B, 7C, 7D, 7E, 8, 8A and 17
03-012 | Temporary use as a construction compound (Work No 7B) and construction working area to facilitate construction of the authorised development | Work Nos. 5, 5A, 6, 6A, 7, 7A,7B, 7C, 7D, 7E, 8, 8A and 17
04-005, 04-006 | Temporary use as a haul route (Work No. 7C) and construction working area to facilitate construction of the authorised development | Work Nos. 6, 6A, 7, 7A,7B, 7C, 7D, 7E, 8, 8A and 17
04-008, 04-009, 04-010, 04-011, 04-012, 04-013 | Temporary use as a haul route (Work No. 7D) and construction working area to facilitate construction of the authorised development | Work Nos. 6, 6A, 7, 7A,7B, 7C, 7D, 7E, 8, 8A and 17
05-007, 05-008, 05-010, 05-011 | Temporary use as a haul route (Work No. 7E) and construction working area to facilitate construction of the authorised development | Work Nos. 6, 6A, 7, 7A,7B, 7C, 7D, 7E, 8, 8A and 17
05-021, 05-022, 05-023 | Temporary use as a haul route (Work No. 8C) and construction working area to facilitate construction of the authorised development | Work Nos. 7, 7A, 8, 8A, 8B and 17
06-002 | Temporary use for access to facilitate construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A and 17
06-005, 06-007 | Temporary use as a construction compound (Work No. 8B) and construction working area to facilitate construction of the authorised development | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A and 17
06-008, 06-009 | Temporary use for access to facilitate construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9, 10, 10A and 17
07-002, 07-003, 07-005, 07-006 | Temporary use as a haul route (Work No. 9C) and construction working area to facilitate construction of the authorised development | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B and 17
07-009, 07-010 | Temporary use as a haul route (Work No. 9D) and construction working area to facilitate construction of the authorised development | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B and 17
07-012, 08-003, 08-004, 08-005, 08-007 | Temporary use as a haul route (Work No. 9E) and construction working area to facilitate construction of the authorised development, including improvement and temporary maintenance of visibility splays | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B and 17
08-001 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B and 17
08-024, 08-025 | Temporary use as a haul route (Work No. 9F) and construction working area to facilitate construction of the authorised development | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B and 17
09-002, 09-004 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B, 10C and 17
09-003, 09-005 | Temporary use as a construction compound (Work No. 9B) and construction working area to facilitate construction of the authorised development | Work Nos. 8, 8A, 8B, 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B, 10C and 17
09-015, 09-016, 09-018, 09-019 | Temporary use as a construction compound (Work No. 10B) and construction working area to facilitate construction of the authorised development | Work Nos. 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B, 10C, 11 11A and 17
10-004, 10-005, 10-006, 10-007 | Temporary use as a haul route (Work No. 10C) and construction working area to facilitate construction of the authorised development | Work Nos. 9, 9A, 9B, 9C, 9D, 9E, 9F, 10, 10A, 10B, 10C, 11 11A and 17
11-013 | Temporary use as a haul route (Work No. 11C) and construction working area to facilitate construction of the authorised development | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
11-014 | Temporary use as a haul route (Work No. 11D) and construction working area to facilitate construction of the authorised development | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
11-015, 11-016 | Temporary use as a haul route (Work No. 11C) and construction working area to facilitate construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
11-017 | Temporary use as a haul route (Work No. 11D) and construction working area to facilitate construction of the authorised development | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
12-001 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
12-002 | Temporary use as a haul route (Work No. 11D) and construction working area to facilitate construction of the authorised development | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
12-003 | Temporary use as a haul route (Work No. 11C) and construction working area to facilitate construction of the authorised development | Work Nos.10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
12-006, 12-007 | Temporary use as a construction compound (Work No. 11B), construction working area, and haul route to facilitate construction of the authorised development | All onshore works
12-008, 12-009, 12-010, 12-011 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 10, 10A, 10B, 10C, 11 11A, 11B, 11C, 11D, 12, 12A and 17
13-009 | Temporary use as a construction compound (Work No. 12B) and construction working area, and haul route to facilitate construction of the authorised development | Work Nos. 11 11A, 11B, 11C, 11D, 12, 12A, 13, 13A, 14, 14A, 15, 16 and 17
13-010, 13-012, 13-013, 13-014, 13-015, 13-016, | Temporary use as a construction compound (Work No. 12C), construction working area, and haul route to facilitate construction of the authorised development, including improvement and temporary maintenance of visibility splays | Work Nos. 11 11A, 11B, 11C, 11D, 12, 12A, 13, 13A, 14, 14A, 15, 16 and 17
13-017 | Temporary use as a construction compound (Work No. 14B) and construction working area, and haul route to facilitate construction of the authorised development, | Work Nos. 12, 12A, 13, 13A, 14, 14A, 14B, 14C, 14D, 15, 16 and 17
14-006 | Creation use and restoration of a public non-motorised user path | Work Nos. 12, 12A, 13, 13A, 14, 14A, 14B, 14C, 14D, 15, 16 and 17
14-014, 14-015 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 12, 12A, 13, 13A, 14, 14A, 14B, 14C, 14D, 15, 16 and 17
14-018, 14-019, 14-021, 14-022, 14-023, 14-024 | Creation, use and restoration of a public non-motorised user path | Work Nos. 12, 12A, 13, 13A, 14, 14A, 14B, 14C, 14D, 15, 16 and 17
14-035, 14-036 | Temporary use as a construction compound (Work No. 14C) and construction working area, and haul route to facilitate construction of the authorised development | Work Nos. 13 and 13A
15-012, 15-015, 15-016, 15-017, 15-018, 15-019, 15-020, 15-021, 15-022 | Creation, use and restoration of a public non-motorised user path | Work Nos. 14, 14A, 14B, 14C, 14D and 17
16-017 | Temporary use as a construction compound and construction working area to facilitate construction of the authorised development, including improvement and temporary maintenance of visibility splays. Creation, use and restoration of a public non-motorised user path | Work Nos. 14, 14A, 14B, 14C, 14D, 15, 15A, 15B, 15C, 15D, 15E, 16 and 17
17-003 | Temporary use for the purposes of carrying out Work Nos. 13 and 13A | Work Nos. 14, 14A, 14B, 14C, 14D, 15, 15A, 15B, 15C, 15D, 15E, 16 and 17
17-012, 17-013, 17-014 | Temporary use to facilitate access for construction of the authorised development including improvement and temporary maintenance of visibility splays | Work Nos. 2A, 3, 4, 4B, 5, 5A, 6, 6a and 17
SCHEDULE 7 Land in which only new rights etc. may be acquired
Article 23
In the District of Tendring—
(1) Number of plot shown on land plans (onshore) | (2) Purpose for which rights may be acquired
01-007 01-008 01-009 01-010 01-011 01-012 02-001 02-001A 02-004 02-005 02-008 02-009 02-010 03-001 03-003 03-011 03-014 04-001 04-003 04-004 04-007 04-020 05-001 05-002 05-013 05-019 05-020 05-024 06-010 06-011 06-017 07-007 07-011 08-008 08-011 08-012 08-013 08-014 08-019 08-020 08-021 08-022 08-026 09-008 09-010 09-013 09-014 09-017 09-020 09-024 10-001 10-010 10-011 10-013 11-001 11-006 11-008 11-009 11-012 12-004 12-013 13-007 13-008 13-022 13-023 14-001 14-004 14-030 14-031 14-037 14-038 14-039 14-040 14-041 14-044 14-045 14-046 16-004 16-008 16-009 16-012 16-013 16-014 16-020 16-021 17-001 17-002 17-010 17-011 | Cable rights and restrictive covenants Cable rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, watercourses, existing infrastructure, highways and railways; (b) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the additional ducts for electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, allow the installation and use of electrical cables in the additional ducts, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, watercourses, existing infrastructure, highways and railways; (c) enter, be on, and break open and break up the surface of the land and remain with or without plant, vehicles, machinery, apparatus and equipment which is ancillary to the purposes of installing, operating and maintaining the cables or additional ducts, transmitting electricity along the cables or use of electrical infrastructure and the cables; (d) to benefit from continuous vertical and lateral support for the authorised development; (e) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of laying down, installing, adjusting, altering, constructing, using, maintaining, repairing, renewing, upgrading, inspecting, removing and replacing the electrical infrastructure and cables, including the right to use, maintain, renew improve and alter existing accesses, roads, streets, tracks or ways over the land, providing that such use is not exclusive and exercise of this right must not prevent or unreasonably inhibit use by other parties; (f) construct and install and thereafter use the land for all necessary purposes for the commissioning, construction, repair, testing and maintenance of the cables in, on or under the land; (g) place and use plant, machinery, structures and temporary structures within the land for the purposes of the installation, construction, maintenance, repairing, renewing, upgrading, inspecting, removal and replacing of the ducting, electrical infrastructure and cables, and to erect temporary signage and provide measures for the benefit of public and personnel safety; (h) erect temporary bridges and supporting or protective structures for the purposes of access to adjoining land and highway; (i) erect fencing, gates, walls, barriers or other means of enclosure, and create secure working areas and compounds including trenchless installation technique compounds and working areas; (j) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair or renewal is being carried out; (k) effect access and egress to and from the highway; (l) make such investigations in or on the land as required; (m) alter, fell, lop or cut, coppice wood, uproot, replant trees, hedges, shrubs or other vegetation which now or hereafter may be standing on the land or other land which would if not felled, lopped, cut or removed would obstruct or interfere with the operation of the cables and ancillary equipment including ducting; (n) to take and use, remove and discharge water from the land, and to lay down, install, retain, use, maintain, inspect, adjust, alter, remove, refurbish, reconstruct, upgrade, replace, protect and improve sewers, drains, pipes, ducts, mains, conduits, flues and to drain into and manage waterflows in any drains, watercourses and culverts, install, retain, use, inspect, maintain, adjust, alter, renew, repair, test or cleanse drainage schemes on the land or reinstate the any existing drainage scheme on the land; (o) install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers and providing connection to the authorised development); (p) erect and remove temporary fencing, gates, walls, barriers or other means of enclosure, remove fences and structures within the land during any period during which construction, maintenance, repair or renewal is being carried out (subject to erection of any temporary stock-proof fencing as is reasonably required and the re-instatement or suitable replacement of the fences or structures following the end of each period of exercise of the rights); (q) store and stockpile materials (including excavated material); (r) create boreholes and trial excavation pits for the purposes of intrusively surveying the land and monitoring the use of any trenchless installation technique, to keep in place and monitor the same through construction, maintenance repair, replacement or decommissioning and to reinstate the land; (s) to excavate materials below ground level, including soils, and to store and re-use or dispose of the same, and in so excavating to undertake any works, including works of protection or removal of archaeological remains as may be required by any written scheme of investigation approved under this Order; (t) lay out temporary paths and bridleways for public use as temporary diversions for public rights of way which are interfered with during any period in which construction, maintenance, repair or renewal decommissioning is being carried out; (u) to install, execute, implement, retain, repair, improve, renew, relocate, maintain and carry out mitigation, maintenance, remediation works for environmental or ecological mitigation or enhancement works, including temporary works for noise alleviation measures and the installation of temporary barriers for the protection of fauna; (v) carry out such works (together with associated fencing) required by a planning permission and/or consent now or to be granted over the land and/or in accordance with any necessary licences relating to protected species and/or wildlife; (w) lay out and maintain temporary paths and bridleways for public use as temporary diversions for public rights of way which are interfered with during any period in which construction, maintenance, repair or renewal decommissioning is being carried out; and (x) (in an emergency only when the cables are temporarily unusable) to lay down, install, use, maintain and inspect underground cables, telephone signalling and fibre-optic cables and ancillary equipment, associated works and other conducting media together with conduits or pipes for containing the same in and under the land. Restrictive covenants A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the base, substructure or footings thereto); (b) prevent anything to be done by way of hard surfacing of the land with concrete of any kind or with any other material or surface whatsoever without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed if the proposed surfacing would not cause damage to relevant part of the authorised development nor make it materially more difficult or expensive to maintain the authorised development); (c) to prevent anything to be done by way of excavation of any kind in the land nor any activities which may obstruct, interrupt, or interfere with the exercise of the rights or damage the authorised development, alter, increase or decrease ground cover or soil levels in any manner whatsoever without the consent in writing of the undertaker (such consent not to be unreasonably held or delayed) save as are reasonably required for agricultural activities (being ploughing to no deeper than 0.6 metres for the purposes of arable farming) or are required to be carried out by National Grid in order to exercise their statutory functions or rights in relation to their apparatus (if any) within the land; (d) to prevent the planting or growing within the land of any trees, shrubs or underwood without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed provided that the proposed trees, shrubs or underwood would not cause damage to the relevant part of the authorised development nor make it materially more difficult or expensive to access the relevant part of the authorised development); (e) to prevent anything being done which may interfere with free flow and passage of electricity or telecommunications through the cables or support for the authorised development; (f) to prevent carrying out operations or actions (including but not limited to blasting and piling) which may obstruct, interrupt, or interfere with the exercise of the rights or damage the authorised development; and (g) to prevent any activity which would in the reasonable opinion of the undertaker result in the disturbance of ecological mitigation areas or areas of habitat creation or reinstatement including any ploughing or grazing without the prior written consent of the undertaker.
03-007 03-007A 04-002 05-014 06-001 06-013 06-014 06-015 06-018 07-013 08-018 09-007 09-009 09-012 11-007 11-018 12-012 13-018 13-019 13-020 14-029 14-042 14-043 16-002 16-003 16-005 16-006 16-007 16-015 16-016 16-018 16-019 17-009 | Cable rights and restrictive covenants under existing highway and rail infrastructure Cable rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, existing infrastructure, watercourses, highways and railways; (b) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the additional ducts for electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, allow the installation and use of electrical cables in the additional ducts, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, watercourses, roads and railways; (c) enter, be on, and break open and break up the surface of the land and remain with or without plant, vehicles, machinery, apparatus and equipment which is ancillary to the purposes of installing, operating and maintaining the cables or additional ducts, or the use of the electrical infrastructure and cables; (d) to benefit from continuous vertical and lateral support for the authorised development; (e) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of laying down, installing, adjusting, altering, constructing, using, maintaining, repairing, renewing, upgrading, inspecting, removing and replacing ducting, electrical infrastructure and the cables, including the right to use, maintain, renew improve and alter existing accesses, roads, streets, tracks or ways over the land, providing that such use is not exclusive and exercise of this right must not prevent or unreasonably inhibit use by other parties; (f) construct and install and thereafter use the land for all necessary purposes for the commissioning, construction, repair, testing and maintenance of the ducting, electrical infrastructure and cables in, on or under the land; (g) place and use plant, machinery, structures and temporary structures within the land for the purposes of the installation, construction, maintenance, repairing, renewing, upgrading, inspecting, removal and replacing of the ducting, electrical infrastructure and cables and to erect temporary signage and provide measures for the benefit of public and personnel safety; (h) erect temporary bridges and supporting or protective structures for the purposes of access to adjoining land and highway; (i) erect fencing, gates, walls, barriers or other means of enclosure, and create secure working areas and compounds including trenchless installation technique compounds and working areas; (j) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair or renewal is being carried out; (k) effect access and egress to and from the highway; (l) make such investigations in or on the land as required; (m) alter, fell, lop or cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be standing on the land or other land which would if not felled, lopped, cut or removed would obstruct or interfere with the operation of the cables and ancillary equipment including ducting; (n) to take and use, remove and discharge water from the land, and to install, retain, use, maintain, inspect, alter, remove, refurbish, reconstruct, replace, protect and improve sewers, drains, pipes, ducts, mains, conduits, flues and to drain into and manage waterflows in any drains, watercourses and culverts, install, use, inspect, maintain, adjust, alter, renew, repair, test or cleanse drainage schemes on the land or reinstate the any existing drainage scheme on the land; (o) install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers); (p) erect and remove temporary fencing, gates, walls, barriers or other means of enclosure, remove fences and structures within the land during any period during which construction, maintenance, repair or renewal is being carried out (subject to erection of any temporary stock-proof fencing as is reasonably required and the re-instatement or suitable replacement of the fences or structures following the end of each period of exercise of the rights); (q) store and stockpile materials (including excavated material); (r) create boreholes and trial excavation pits for the purposes of intrusively surveying the land and monitoring the use of any trenchless installation technique, to keep in place and monitor the same through construction, maintenance repair, replacement or decommissioning and to reinstate the land; (s) to excavate materials below ground level, including soils, and to store and re-use or dispose of the same, and in so excavating to undertake any works, including works of protection or removal of archaeological remains as may be required by any written scheme of investigation approved under this Order; (t) to install, execute, implement, retain, repair, improve, renew, relocate, maintain and carry out mitigation, maintenance, remediation works for environmental or ecological mitigation or enhancement works, including temporary works for noise alleviation measures and the installation of temporary barriers for the protection of fauna; (u) carry out such works (together with associated fencing) required by a planning permission and/or consent now or to be granted over the land and/or in accordance with any necessary licences relating to protected species and/or wildlife; (v) lay out and maintain temporary paths and bridleways for public use as temporary diversions for public rights of way which are interfered with during any period in which construction, maintenance, repair or renewal decommissioning is being carried out; and (w) (in an emergency only when the cables are temporarily unusable) to lay down, install, use, maintain and inspect underground cables, telephone signalling and fibre-optic cables and ancillary equipment, associated works and other conducting media together with conduits or pipes for containing the same in and under the land. Restrictive covenants A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the bases, substructures or footings thereto); (b) to prevent the planting or growing within the land of any trees, shrubs or underwood without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed provided that the proposed trees, shrubs or underwood would not cause damage to the relevant part of the authorised development nor make it materially more difficult or expensive to access the relevant part of the authorised development); (c) to prevent anything being done which may interfere with free flow and passage of electricity or telecommunications through the cables or support for the authorised development; (d) to prevent carrying out operations or actions (including but not limited to blasting and piling) which may obstruct, interrupt, or interfere with the exercise of the rights or damage the authorised development; and (e) to prevent any activity which would in the reasonable opinion of the undertaker result in the disturbance of ecological mitigation areas or areas of habitat creation or reinstatement, including any ploughing or grazing without the prior written consent of the undertaker.
03-007 03-007A 04-002 05-014 06-001 06-013 06-014 06-015 06-018 07-013 08-018 09-007 09-009 09-012 11-007 11-018 12-012 13-018 13-019 13-020 14-029 14-042 14-043 16-002 16-003 16-005 16-006 16-007 16-015 16-016 16-018 16-019 17-00 | Cable rights and restrictive covenants under existing highway and rail infrastructure Cable rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, existing infrastructure, watercourses, highways and railways; (b) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the additional ducts for electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, allow the installation and use of electrical cables in the additional ducts, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (all collectively referred to as the “cables”), and in doing so, to use or resort to trenchless installation techniques including (but not limited to) directional drilling beneath sea defences, watercourses, roads and railways; (c) enter, be on, and break open and break up the surface of the land and remain with or without plant, vehicles, machinery, apparatus and equipment which is ancillary to the purposes of installing, operating and maintaining the cables or additional ducts, or the use of the electrical infrastructure and cables; (d) to benefit from continuous vertical and lateral support for the authorised development; (e) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of laying down, installing, adjusting, altering, constructing, using, maintaining, repairing, renewing, upgrading, inspecting, removing and replacing ducting, electrical infrastructure and the cables, including the right to use, maintain, renew improve and alter existing accesses, roads, streets, tracks or ways over the land, providing that such use is not exclusive and exercise of this right must not prevent or unreasonably inhibit use by other parties; (f) construct and install and thereafter use the land for all necessary purposes for the commissioning, construction, repair, testing and maintenance of the ducting, electrical infrastructure and cables in, on or under the land; (g) place and use plant, machinery, structures and temporary structures within the land for the purposes of the installation, construction, maintenance, repairing, renewing, upgrading, inspecting, removal and replacing of the ducting, electrical infrastructure and cables and to erect temporary signage and provide measures for the benefit of public and personnel safety; (h) erect temporary bridges and supporting or protective structures for the purposes of access to adjoining land and highway; (i) erect fencing, gates, walls, barriers or other means of enclosure, and create secure working areas and compounds including trenchless installation technique compounds and working areas; (j) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair or renewal is being carried out; (k) effect access and egress to and from the highway; (l) make such investigations in or on the land as required; (m) alter, fell, lop or cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be standing on the Land or other land which would if not felled, lopped, cut or removed would obstruct or interfere with the operation of the cables and ancillary equipment including ducting; (n) to take and use, remove and discharge water from the land, and to install, retain, use, maintain, inspect, alter, remove, refurbish, reconstruct, replace, protect and improve sewers, drains, pipes, ducts, mains, conduits, flues and to drain into and manage waterflows in any drains, watercourses and culverts, install, use, inspect, maintain, adjust, alter, renew, repair, test or cleanse drainage schemes on the land or reinstate the any existing drainage scheme on the land; (o) install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers); (p) erect and remove temporary fencing, gates, walls, barriers or other means of enclosure, remove fences and structures within the land during any period during which construction, maintenance, repair or renewal is being carried out (subject to erection of any temporary stock-proof fencing as is reasonably required and the re-instatement or suitable replacement of the fences or structures following the end of each period of exercise of the rights); (q) store and stockpile materials (including excavated material); (r) create boreholes and trial excavation pits for the purposes of intrusively surveying the land and monitoring the use of any trenchless installation technique, to keep in place and monitor the same through construction, maintenance repair, replacement or decommissioning and to reinstate the land; (s) to excavate materials below ground level, including soils, and to store and re-use or dispose of the same, and in so excavating to undertake any works, including works of protection or removal of archaeological remains as may be required by any written scheme of investigation approved under this Order; (t) to install, execute, implement, retain, repair, improve, renew, relocate, maintain and carry out mitigation, maintenance, remediation works for environmental or ecological mitigation or enhancement works, including temporary works for noise alleviation measures and the installation of temporary barriers for the protection of fauna; (u) carry out such works (together with associated fencing) required by a planning permission and/or consent now or to be granted over the land and/or in accordance with any necessary licences relating to protected species and/or wildlife; (v) lay out and maintain temporary paths and bridleways for public use as temporary diversions for public rights of way which are interfered with during any period in which construction, maintenance, repair or renewal decommissioning is being carried out; and (w) (in an emergency only when the cables are temporarily unusable) to lay down, install, use, maintain and inspect underground cables, telephone signalling and fibre-optic cables and ancillary equipment, associated works and other conducting media together with conduits or pipes for containing the same in and under the land. Restrictive covenants A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the bases, substructures or footings thereto); (b) to prevent the planting or growing within the land of any trees, shrubs or underwood without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed provided that the proposed trees, shrubs or underwood would not cause damage to the relevant part of the authorised development nor make it materially more difficult or expensive to access the relevant part of the authorised development); (c) to prevent anything being done which may interfere with free flow and passage of electricity or telecommunications through the cables or support for the authorised development; (d) to prevent carrying out operations or actions (including but not limited to blasting and piling) which may obstruct, interrupt, or interfere with the exercise of the rights or damage the authorised development; and (e) to prevent any activity which would in the reasonable opinion of the undertaker result in the disturbance of ecological mitigation areas or areas of habitat creation or reinstatement, including any ploughing or grazing without the prior written consent of the undertaker.
02-002 02-003 02-006 02-007 03-005 03-013 03-015 03-016 03-017 03-018 04-014 04-015 04-016 04-017 04-018 04-019 05-003 05-004 05-005 05-006 05-009 05-012 05-015 05-016 05-017 05-018 05-025 05-026 06-003 06-004 06-006 06-012 06-016 07-001 07-004 07-008 08-002 08-006 08-009 08-010 08-015 08-016 08-017 08-023 09-001 09-006 09-011 09-023 10-002 10-003 10-008 10-009 10-012 11-002 11-003 11-004 11-005 11-010 11-011 11-019 11-020 12-005 12-014 13-001 13-002 13-003 13-004 13-005 13-006 13-011 14-003 14-008 14-010 16-001 16-010 16-011 16-023 17-015 17-016 17-017 17-018 | Access rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of the authorised development, the inspection, testing, maintenance, renewal, upgrading, replacement and removal of the cables and connection into any adjacent cables and associated works, to take plant and equipment on to adjoining land and make such investigations in or on the land which is ancillary for the purposes of exercise of the rights; (b) to construct, use, maintain and improve a permanent means of access including visibility splays, and retain, maintain, straighten, widen, repair, alter, upgrade and use existing access routes for the purposes of accessing the land, adjoining land and highway; (c) retain, maintain, straighten, widen, repair, alter, upgrade and use existing access routes for the purposes of accessing adjoining land and highway; (d) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair, renewal or decommissioning is being carried out; (e) erect temporary bridges and supporting or protective structures for the purposes of access to adjoining land; (f) place and use plant, machinery, structures and temporary structures within the land, and to erect temporary signage and provide measures for the benefit of public and personnel safety; (g) alter, fell, lop, cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be present on the land for the purpose of enabling the right to pass and re-pass to adjoining land; (h) repair, improve, renew, remove, relocate and plant trees, woodland, shrubs, hedgerows, seeding, other vegetation and other ecological measures together with the right to maintain, inspect and replant such trees, shrubs and landscaping; (i) erect and remove temporary fencing, gates, walls, barriers or other means of enclosure; and (j) lay out and maintain temporary paths and bridleways for public use as temporary diversions for public rights of way which are interfered with during any period in which construction, maintenance, repair or renewal decommissioning is being carried out.
17-026 17-027 17-028 17-029 17-030 17-031 18-001 18-002 | National Grid substation works area rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) lay down, install, retain, adjust, alter, construct, operate, erect, use, maintain, repair, renew, upgrade, inspect, remove and replace the electricity cables (including the removal of materials including spoil) in, under, over and/or on the land, together with such telemetry and fibre-optic lines, ducting, jointing bays and other apparatus, protection measures, cable marker posts, chambers and manholes, manhole covers and other equipment which is ancillary to the purposes of transmitting electricity along such electricity cables (collectively referred to in this National Grid substation work area rights part of this Schedule as the “cables”); (b) enter, be on, and break open and break up the surface of the land and remain with or without plant, vehicles, machinery, apparatus and equipment which is ancillary to the purposes of transmitting electricity along the cables; (c) to benefit from continuous vertical and lateral support for the authorised development; (d) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of laying down, installing, adjusting, altering, constructing, using, maintaining, repairing, renewing, inspecting the authorised development and for removing and replacing the cables; (e) to use, maintain, renew improve and alter existing accesses, roads, streets, tracks or ways over the land, providing that such use is not exclusive and exercise of this right must not prevent or unreasonably inhibit use by other parties; (f) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair, renewal or decommissioning is being carried out; (g) place and use plant, machinery, structures and temporary structures within the land, and to erect temporary signage and provide measures for the benefit of public and personnel safety; (h) fell, lop, cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be present on the land for the purpose of enabling the right to pass and re-pass to adjoining land; and (i) remove and discharge water from the land and to install, retain, use, maintain, inspect, alter, remove, refurbish, reconstruct, replace, protect and improve sewers, drains, pipes, ducts, mains, conduits, flues and to drain into and manage waterflows in any drains, watercourses and culverts, to lay down, install, adjust, alter, construct, create, use, maintain, repair, renew, upgrade, inspect, remove and replace a drainage scheme on the land; and (j) install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers). A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the substructures or footings thereto) without the prior written consent of the undertaker; (b) to prevent the planting or growing within the land of any trees, shrubs or underwood without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed provided that the proposed trees, shrubs or underwood would not cause damage to the relevant part of the authorised development nor make it materially more difficult or expensive to access the relevant part of the authorised development); (c) to prevent anything being done which may interfere with free flow and passage of electricity or telecommunications through the cables or support for the authorised development; (d) to prevent carrying out operations or actions (including but not limited to blasting and piling) which may obstruct, interrupt, or interfere with the exercise of the rights or damage the authorised development;
17-004 17-006 17-007 17-008 17-022 | Drainage rights and restrictive covenants Drainage rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) remove and discharge water from the land and to lay down, install, retain, use, maintain, inspect, alter, remove, refurbish, reconstruct, upgrade, replace, protect and improve sewers, drains, pipes, ducts, mains, conduits, flues and to drain into and manage waterflows in any drains, watercourses and culverts, to lay down, install, adjust, alter, construct, create, use, maintain, repair, renew, upgrade, inspect, remove and replace a drainage scheme on the land (the “drainage works”); (b) inspect, use mechanical excavation (including directional drilling and/or digging), reinstate, remove, move or alter such part or parts of any drainage system on the land for the purposes of the drainage works (including connecting the drainage works to any land drain as at the date of the drainage works); (c) enter, be on, and break up the surface of the land and remain with or without plant, vehicles, machinery, apparatus and equipment which is ancillary to the purposes of the drainage works; (d) store and stockpile materials (including excavated material); (e) make such investigations in or on the land as required for the purposes of the drainage works, include to create boreholes and trail excavation pits for the purposes of intrusively surveying the land; (f) to excavate materials below ground level, including soils, and to store and re-use or dispose of the same, and in so excavating, to undertake any works, including works of protection or removal of archaeological remains as may be required by any written scheme of investigation approved under this Order; (g) pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of the drainage works; (h) place and use plant, machinery, structures and temporary structures within the land, and to erect temporary signage and provide measures for the benefit of public and personnel safety for the purposes of the drainage works; (i) erect fencing, gates, walls, barriers or other means of enclosure, and create secure works areas or compounds and working areas for the purposes of the drainage works; (j) construct, lay down, use and remove temporary access roads including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains during any period during which construction, maintenance, repair or renewal of any drainage work is being carried out; (k) effect access and egress to and from the highway; (l) alter, fell, lop or cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be standing on the land or other land which would if not felled, lopped, cut or removed obstruct or interfere with the drainage works; (m) install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers); (n) to install, execute, implement, retain, repair, improve, renew, relocate, maintain and carry out mitigation, maintenance, remediation works for environmental or ecological mitigation or enhancement works, including temporary works for noise alleviation measures and the installation of temporary barriers for the protection of fauna; and (o) to carry out such works (together with associated fencing) required by a planning permission and/or consent now or to be granted over the land in accordance with any necessary licences relating to protected species and/or wildlife. Restrictive Covenant A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings; or (b) construction erection or works of any kind (including the substructures or footings thereto); and (c) prevent anything to be done by way of hard surfacing of the land with concrete of any kind or with any other material or surface whatsoever without the consent in writing of the undertaker (such consent not to be unreasonably withheld or delayed if the proposed surfacing would not cause damage drainage works.
20-003 | Compensatory works, work rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— (a) erect, maintain, repair, improve and remove permanent fencing, gates, barriers or other means of enclosure in order to create areas where predators are excluded; (b) enter upon, pass, re-pass and remain on the land with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of carrying out and maintaining the works, surveying or to carry out monitoring of fauna; (c) place, retain, and maintain apparatus on the land for the purposes of surveying or carrying out monitoring of fauna, including use of recording devices; (d) install, execute, implement, retain, repair, improve, renew, remove, relocate and plant trees, woodland, shrubs, hedgerows, seeding and other ecological measures together with the right to maintain, inspect and replant such trees, shrubs and landscaping; (e) install, execute, implement, retain, repair, improve, renew, relocate, maintain and carry out mitigation, maintenance, remediation works for environmental or ecological mitigation or enhancement works, including temporary works and the installation of fencing for the protection of fauna; and (f) carry out such works (together with associated fencing or other means of enclosure) required by a planning permission and/or consent now or to be granted over the land in accordance with any necessary licences relating to protected species and/or wildlife. Restrictive covenants A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the substructures or footings thereto); (b) to prevent the planting or growing within the land of any trees, shrubs or underwood without the prior consent in writing of the undertaker; (c) to prevent any part of any fence, gate, barrier or other enclosure erected as part of the works being altered, modified or removed without the prior consent in writing of the undertaker; and (d) to prevent any activity which would in the reasonable opinion of the undertaker result in the harm to or diminishment in the function of the ornithological compensation measures or areas of habitat creation including any ploughing or grazing without the prior written consent of the undertaker.
19-002 19-003 | Compensatory works, access rights Rights for the purposes of the construction, installation, operation, maintenance and decommissioning of the authorised development to— pass and re-pass with or without vehicles, plant, machinery, apparatus, equipment and materials for the purposes of the works, and associated works, to take plant and equipment on to adjoining land and make such investigations in or on the land which is ancillary for the purposes of exercise of the rights; to use and maintain any quay, slipway, jetty or similar structure, with or without vessels, vehicles, plant, machinery, apparatus, equipment and materials for the purposes of taking accessing the land, carrying out, monitoring and constructing, maintaining, improving repairing or decommissioning the works; to use, maintain, repair and improve any permanent means of access including retain, maintain, straighten, widen, repair, alter, upgrade and use existing access routes for the purposes of accessing the land, adjoining land and highway; construct, lay down, use and remove temporary access roads, ramps and other temporary crossings including any necessary hard standing and other surface materials including (but not limited to) matting, aggregate, trackway, footpaths, stone, tarmacadam, terram, temporary bridging, culverting or diversion of water courses and drains, and alter, widen, upgrade and improve existing roads, tracks and footpaths; erect temporary bridges and supporting or protective structures for the purposes of access to adjoining land; place and use plant, machinery, structures and temporary structures within the land, and to erect temporary signage and provide measures for the benefit of public and personnel safety; alter, fell, lop, cut, coppice wood, uproot trees or hedges or shrubs which now or hereafter may be present on the land for the purpose of enabling the right to pass and re-pass to adjoining land; and erect and remove temporary fencing, gates, walls, barriers or other means of enclosure. Restrictive covenants A restrictive covenant over the land for the benefit of the remainder of the Order land to— (a) prevent anything to be done in or upon the land or any part thereof for the purpose of the erection of any buildings or construction erection or works of any kind (including the substructures or footings thereto); (b) to prevent the planting or growing within the land of any trees, shrubs or underwood without the prior consent in writing of the undertaker; (c) to prevent any part of any fence, gate, barrier or other enclosure erected as part of the works being altered, modified or removed without the prior consent in writing of the undertaker; and (d) to prevent any activity which would in the reasonable opinion of the undertaker result in the harm to or diminishment in the function of the ornithological compensation measures or areas of habitat creation including any ploughing or grazing without the prior written consent of the undertaker.
SCHEDULE 8 Modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants
Article 23
Compensation enactments
1 The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation for the compulsory purchase of land and interests in land.
2 (1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the following modification—
(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—
(5A) If—
(a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the Compulsory Purchase Act 1965 (as modified by paragraph 8 of Schedule 8 to the Five Estuaries Offshore Wind Farm Order 2025);
(b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the Compulsory Purchase Act 1965 (as substituted by paragraph 11 of Schedule 8 to the Five Estuaries Offshore Wind Farm Order 2025) to acquire an interest in the land; and
(c) the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of sub-section (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.
.
3 (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973 has effect subject to the modifications set out in sub-paragraph (2).
(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 6 of this Schedule—
(a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and
(b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable.
Application of Part 1 of the 1965 Act
4 (1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 28 (modification of Part 1 of the 1965 Act) to the acquisition of land under article 21 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 23 (compulsory acquisition of rights)—
(a) with the modifications specified in sub-paragraph (2); and
(b) with such other modifications as may be necessary.
(2) The modifications referred to in sub-paragraph (1) are set out in the following provisions of this Schedule.
5 References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—
(a) the right acquired or to be acquired, or the restriction imposed or to be imposed; or
(b) the land over which the right is or is to be exercisable, or the restriction is or is to be enforceable.
6 For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—
7. In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.
.
7 The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a) section 9(4) (refusal to convey, failure to make title, etc.);
(b) paragraph 10(3) of Schedule 1 (persons without power to sell their interests) (conveyance of the land or interest);
(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land);
are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
8 Section 11 (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restriction, as well as the notice of entry required by sub-section (1) of that section (as it applies to a compulsory acquisition), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant (which is deemed for this purpose to have been created on the date of service of the notice); and sections 11A (powers of entry: further notices of entry), 11B (counter-notice requiring possession to be taken on specified date), 12 (unauthorised entry) and 13 (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.
9 Section 20 (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
10 Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 28(4) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.
11 For Schedule 2A of the 1965 Act substitute—
SCHEDULE2A
COUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT
Section 8
Introduction
1. (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 (execution of declaration) of the 1981 Act as applied by article 26 (application of the 1981 Act) of the Five Estuaries Offshore Wind Farm Order 2025 in respect of the land to which the notice to treat relates.
(2) But see article 27 (acquisition of subsoil only) of the Five Estuaries Offshore Wind Farm Order 2025 which excludes the acquisition of subsoil only from this Schedule.
(3) In this Schedule, “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
2. A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
3. A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.
Response to counter-notice
4. On receiving a counter-notice, the acquiring authority must decide whether to—
(a) withdraw the notice to treat;
(b) accept the counter-notice; or
(c) refer the counter-notice to the Upper Tribunal.
5. The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
6. If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.
7. If the authority do not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.
8. If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.
Determination by the Upper Tribunal
9. On a referral under paragraph 6, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—
(a) in the case of a house, building or factory, cause material detriment to the house, building or factory; or
(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
10. In making the determination, the Upper Tribunal must take into account—
(a) the effect of the acquisition of the right or the imposition of the covenant;
(b) the use to be made of the right or covenant proposed to be acquired or imposed; and
(c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
11. If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 9, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.
12. If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.
13. (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of six weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawing of the notice.
14. Any dispute as to the compensation is to be determined by the Upper Tribunal.
.
Article 41
PART 1 Protection for electricity, gas, water and sewerage undertakers
1 The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the utility undertaker in question.
2 In this Part—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means—
in the case of a utility undertaker within paragraph (a) of the definition of that term, electric lines or electrical plant (as defined in the 1989 Act, belonging to or maintained by that licence holder;
in the case of a utility undertaker within paragraph (b) of the definition of that term, any mains, pipes or other apparatus belonging to or maintained by that gas transporter within the meaning of Part 1 of the Gas Act 1986 for the purposes of gas supply;
in the case of a utility undertaker within paragraph (c) of the definition of that term, mains, pipes or other apparatus belonging to or maintained by that water undertaker for the purposes of water supply; and
in the case of a utility undertaker within paragraph (d) of the definition of that term—
any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at a future date) of the Water Industry Act 1991;
any drain or works vested in the sewerage undertaker under the Water Industry Act 1991; and
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewerage disposal works, at future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,
and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land;
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed; and
“utility undertaker” means—
any licence holder within the meaning of Part 1 of the 1989 Act;
a gas transporter within the meaning of Part 1 of the Gas Act 1986;
a water undertaker within the meaning of the Water Industry Act 1991; and
a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,
for the area of the onshore works, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
On street apparatus and offshore works
3 This Part does not apply to—
(a) apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; and
(b) the offshore works.
Acquisition of land
4 Regardless of any provision of this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.
Removal of apparatus
5 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed; and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 47 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
Facilities and rights for alternative apparatus
6 (1) Where, in accordance with the provisions of this Part, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along the authorised development, the arbitrator must—
(a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; and
(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the authorised development for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
7 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5(2), the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (2) is submitted to it.
(4) If a utility undertaker, in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, the provisions of this Part apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
Expenses and costs
8 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses agreed with the undertaker in advance and reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 5(2).
(2) The value of any apparatus removed under the provisions of this Part must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.
(3) If in accordance with the provisions of this Part—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 47 (arbitration) to be necessary then, if such placing involves cost in the construction of works under this Part exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
9 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(2) any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker and, if such consent is withheld, the undertaker has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Miscellaneous
10 Nothing in this Part affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made.
PART 2 For the protection for operators of electronic communications code networks
11 The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the operator in question.
12 In this Part—
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“the electronic communications code” has the same meaning as in section 106 (application of the electronic communications code) of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and
an electronic communications network which the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;
“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 (infrastructure system) of that code; and
“operator” means the operator of an electronic communications code network.
13 The exercise of the powers conferred by article 32 (statutory undertakers) are subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
14 (1) Subject to sub-paragraphs (2) to (4), if as a result of the authorised development or its construction, or of any subsidence resulting from the authorised development—
(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development), or other property of an operator; or
(b) there is any interruption in the supply of the service provided by an operator,
the undertaker must bear and pay the cost agreed by the undertaker in advance and reasonably incurred by the operator in making good such damage or restoring the supply and must make reasonable compensation to that operator for other expenses, loss, damage, penalty or costs incurred by, that operator by reason, or in consequence of, any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker and, if such consent is withheld, the undertaker has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) Any difference arising between the undertaker and the operator under this Part must be referred to and settled by arbitration under article 47 (arbitration).
(5) This Part does not apply to—
(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or
(b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.
(6) Nothing in this Part affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made.
PART 3 For the protection of the Environment Agency
15 (1) The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.
(2) In this Part of this Schedule—
“the Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” are to be construed accordingly;
“drainage work” means (i) any main river and includes any land which provides flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring and (ii) any sea defence;
“emergency” means an occurrence which presents a risk of—
serious flooding which presents an immediate risk to health, life, property or environment;
serious detrimental impact on drainage which presents an immediate risk to health, life, property or environment; or
serious harm to the environment which presents an immediate risk of an incident which is likely to cause an impact to a species or habitats;
“fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;
“main river” has the same meaning given in section 113 of the Water Resources Act 1991;
“non-tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the 2016 Regulations;
“plans” includes plans, sections, elevations, drawings, specifications, calculations, method statements and descriptions;
“remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river;
“sea defence” means any bank, wall, embankment (and any berm, counter wall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the Agency’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949 or by any local authority or any navigation, harbour or conservancy authority;
“specified work” means—
so much of any work or operation authorised by this Order as is in, on, under, over or within—
16 metres of a tidal main river or 8 metres of a non-tidal main river, or is otherwise likely to—
endanger the stability of, cause damage or reduce the effectiveness of that sea defence;
interfere with the Agency’s access to or along that sea defence or the Agency’s ability to undertake works to ensure the efficacy of that sea defence; or
8 metres of the base of a remote defence which is likely to endanger the stability of, cause damage or reduce the effectiveness of that remote defence, or interfere with the Agency’s access to or along that remote defence;
16 metres of a drainage work involving a tidal main river;
8 metres of a drainage work involving a non-tidal main river;
any distance of a drainage work and is likely to—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;
cause obstruction to the free passage of fish or damage to any fishery;
affect the conservation, distribution or use of water resources;
affect the conservation value of the main river and habitats in its immediate vicinity; or
so much of any work or operation authorised by the Order as is in, on, under, over or within 16 metres of a sea defence which is likely to endanger the stability of, cause damage to or reduce effectiveness of that sea defence, or interfere with the Agency’s access to or along that sea defence;
which involves an activity that includes dredging, raising or taking of any sand, silt, ballast, clay, gravel or other materials from or off the bed or banks of a drainage work (or causing such materials to be dredged, raised or taken), including hydrodynamic dredging or desilting; and
which involves an activity any quarrying or excavation within 16 metres of a drainage work which is likely to cause damage to or endanger the stability of the banks or structure of that drainage work.
“tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the 2016 Regulations.
Submission and approval of plans
16 (1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably request.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 28.
(3) Any approval of the Agency required under this paragraph—
(a) must not be unreasonably withheld or delayed;
(b) subject to sub-paragraph (4), is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or such later date is agreed between the Agency and the undertaker, and if, further particulars if such particulars have been requested by the Agency for approval pursuant to sub-paragraph (1) the period between the making of this request and the provision of further particulars in response to it shall not be taken into account in the calculation of the 2 months for the purposes of this sub-paragraph; and
(c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution, or the prevention of environmental harm, or for nature conservation, or in the discharge of its environmental duties.
(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (2)(b).
(5) If the Agency refuses any approval required under this paragraph then the refusal must be accompanied by a statement of the grounds for refusal.
Construction of protective works
17 Without limiting paragraph 16, but subject always to the provisions of that paragraph as to reasonableness the requirements which the Agency may have under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a) to safeguard any drainage work against damage; or
(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased;
by reason of any specified work.
Timing of works and service of notices
18 (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 17, must be constructed—
(a) without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and
(b) to the reasonable satisfaction of the Agency, and the Agency is entitled by its officer to watch and inspect the construction of such works.
(2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date of which it is completed.
(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work to which the protective works can relate.
Works not in accordance with this Part of this Schedule
19 (1) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(2) Subject to sub-paragraph (3), if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (1) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice, and any expenditure reasonably incurred by the Agency in so doing is recoverable from the undertaker.
(3) In the event of any dispute as to whether sub-paragraph (1) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not, except in the case of an emergency, exercise the powers conferred by sub–paragraph (2) until the dispute has been finally determined in accordance with paragraph 28.
Maintenance of works
20 (1) Subject to sub-paragraph (6) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the Order limits and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) Subject to sub–paragraph (5), if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is reasonably necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with this Part of this Schedule and where the Agency (acting reasonably) considers it necessary to avoid any of the risks specified in sub-paragraph (5), the Agency may serve written notice requiring the undertaker to cease all or part of the specified works as may be specified within the notice within such reasonable period specified in the notice, and the undertaker must cease the specified works or part thereof until it has obtained the consent or complied with the condition unless the cessation of the specified works or part thereof would cause greater damage than compliance with the written notice.
(5) The risks specified in sub-paragraph (4) are—
(a) risk of flooding;
(b) risk of harm to the environment;
(c) risk of detrimental impact on drainage; and
(d) damage to the fishery.
(6) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 28.
(7) This paragraph does not apply to—
(a) drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of the Order from doing so; and
(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.
Remediating impaired drainage work
21 Subject to paragraph 28, if by reason of the construction of any specified work or of the failure of any such work, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure reasonably incurred by the Agency in so doing from the undertaker.
Agency access
22 If by reason of the construction of any specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must notify the Agency as soon as reasonably practicable and provide such alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction occurred, and such alternative access must be made available as soon as reasonably practicable after the undertaker becoming aware of such obstruction, except in the case of an emergency in which case the undertaker must provide such alternative means of access on demand.
Free passage of fish
23 (1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.
(2) If by reason of—
(a) the construction of any specified work; or
(b) the failure of any such work,
damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.
(3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in the notice served under sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in so doing are recoverable from the undertaker.
(4) In any case where immediate action by the Agency is reasonably required in an emergency in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
Monitoring of Sea Defence
24 (1) Prior to commencing any work using any trenchless installation technique forming part of Work Nos. 3 or 4 within plots 01-007, 01-008, 01-010, 01-009 and 02-001, the undertaker must obtain the approval in writing of the Agency of a plan specifying the monitoring of the sea defence which is to be carried out by the undertaker.
(2) The plan required under sub-paragraph (1) must set out how monitoring on the seawall of the sea defence during construction to measure any movement will be carried out including—
(a) The outcomes of detailed ground investigation and baseline monitoring of any preexisting seawall movement work undertaken by the undertaker;
(b) the methodology of the trenchless installation technique to be used under the seawall;
(c) the risk assessment for the selected trenchless installation technique works under the seawall;
(d) details and plans of the proposed works under the seawall including sections;
(e) the equipment to be used to carry out monitoring of the seawall;
(f) the location(s) for the installation of monitoring equipment;
(g) the scope and timing of the monitoring to be carried out; and
(h) a process for the reporting of the results of the monitoring to the Agency by the undertaker.
(3) Any work to which sub-paragraph (1) applies may not be commenced unless and until the monitoring plan has been approved by the Agency.
(4) Any approval of the Agency required under this paragraph—
(a) must not be unreasonably withheld or delayed;
(b) is deemed to have been approved if it is neither given nor refused within 2 months of the submission of the monitoring plan required by sub-paragraph (1).
(c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or for nature conservation or in the discharge of its environmental duties.
(5) If the Agency refuses any approval required under this paragraph then the refusal must be accompanied by a statement of the grounds for refusal.
As built drawings
25 As soon as reasonably practicable following the completion of the construction of Work Nos. 3 or 4 within plots 01-007, 01-008, 01-010, 01-009 and 02-001, the undertaker must provide to the Agency as-built drawings in a form and scale to be agreed in writing between the undertaker and the Agency (acting reasonably) to show location and depths of the cable ducts as installed which must include identification markings on the sea defence.
Heavy vehicle movements during construction
26 (1) Access for the undertaker over plot 01-005 during the construction of the relevant authorised works must not be used by vehicles that exceed a maximum gross weight of 7.5 tonnes unless otherwise agreed in writing, including details of any additional protection measures, between the undertaker and the Agency (acting reasonably).
(2) The undertaker is not required to comply with sub-paragraph (1) in case of an emergency.
Indemnity
27 (1) The undertaker indemnifies the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur—
(a) in the examination or approval of plans under this Part of this Schedule;
(b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and
(c) in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.
(2) The undertaker is responsible for and indemnifies the Agency against all costs and losses, liabilities, claims and demands not otherwise provided for in this Part of this Schedule which may be reasonably incurred or suffered by the Agency by reason of—
(a) the construction, operation or maintenance of any specified works comprised within the authorised development or the failure of any such works comprised within them; or
(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised development or dealing with any failure of the authorised development.
(3) For the avoidance of doubt, in sub-paragraph (1)—
“costs” includes—
expenses and charges;
staff costs and overheads; and
legal costs;
“losses” includes physical damage.
(4) For the avoidance of doubt, in sub-paragraph (3)—
“claims” and “demands” include as applicable—
costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand; and
any interest element of sums claimed or demanded;
“liabilities” includes—
contractual liabilities;
tortious liabilities (including liabilities for negligence or nuisance);
liabilities to pay statutory compensation or for breach of statutory duty; and
liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).
(5) The Agency must give to the undertaker reasonable written notice of any such claim or demand as is referred to in sub-paragraph (1) as soon as reasonably practicable after it becomes aware of such claim or demand, and no settlement or compromise of any such claim or demand is to be made without the prior agreement of the undertaker and that agreement must not be unreasonably withheld or delayed.
(6) The Agency must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.
(7) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, must not relieve the undertaker from any liability under the provisions of this Part of this Schedule.
(8) Nothing in this paragraph imposes any liability on the undertaker with respect to any costs, charges, expenses, damages, claims, demands or losses to the extent that they are attributable to the neglect or default of the Agency, its officers, servants, contractors or agents.
Disputes
28 Any dispute arising between the undertaker and the Agency under this Part of this Schedule will, if the parties agree, be determined by arbitration under article 47 (arbitration), but failing agreement will be determined by the Secretary of State for the Environment, Food and Rural Affairs or it successor and the Secretary of State for Energy Security and Net Zero or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to another.
PART 4 For the protection of drainage authorities
29 The provisions of this Part of this Schedule have effect for the protection of the drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority.
30 In this Part of this Schedule—
“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” are to be construed accordingly;
“drainage authority” means, in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991;
“drainage work” means any ordinary watercourse and includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse within the jurisdiction of the drainage authority;
“emergency” means a situation where, if the relevant action is not taken, there will be adverse health, safety, security or environmental consequences;
“independent review” means a review carried out by a third party confirming the findings of the undertaker in the assessment of the impact of the proposed specified work on flood risk;
“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991;
“plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 9 metres of a drainage work and which comprises any of the following works carried out in relation to or which may affect any ordinary watercourse—
the erection of any mill, dam, weir, or other similar obstruction to the flow of an ordinary watercourse, or raising or otherwise altering any such obstruction;
the construction or installation of a bridge or other structure;
the erection of a culvert in an ordinary watercourse;
the alteration of an ordinary watercourse or a culvert or other form of drainage infrastructure in a manner that would be likely to affect the flow of an ordinary watercourse.
31 (1) Before commencing construction of a specified work, the undertaker must submit to the drainage authority plans of the specified work, including an independent review and such further particulars available to it as the drainage authority may within 21 days of the submission of the plans reasonably request.
(2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph.
(3) A specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under this paragraph.
(4) Any approval of the drainage authority required under this paragraph—
(a) must not be unreasonably withheld or delayed;
(b) is deemed to have been given if it is neither given nor refused within 56 days of the submission of the plans for approval, or submission of further particulars (where required by the drainage authority under sub–paragraph (1)) whichever is the later; and
(c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, for the protection of any ordinary watercourse or for the prevention of flooding.
(5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.
(6) “reasonable” in this paragraph means appropriate in the circumstances and, for the avoidance of doubt, any recommendation or requirement from the drainage authority relating to health and safety shall be considered reasonable.
32 Without limiting paragraph 31, the requirements which the drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a) to safeguard any drainage work against damage by reason of any specified work; or
(b) to secure that the efficiency of any drainage work for flood defence and land drainage purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of any specified work.
33 (1) Subject to sub–paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 32, must be constructed—
(a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and
(b) to the reasonable satisfaction of the drainage authority, and an officer of the drainage authority is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to the drainage authority—
(a) not less than 21 days’ notice in writing of its intention to commence construction of any specified work; and
(b) notice in writing of its completion not later than 7 days after the date of completion.
(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work to which the protective works relate.
(4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is agreed, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.
(5) Subject to sub–paragraph (6) and paragraphs 37 and 38, if within a reasonable period, being not less than 28 days from the date when a notice under sub–paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any reasonable expenditure incurred by it in so doing is recoverable from the undertaker.
(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not except in an emergency exercise the powers conferred by sub–paragraph (5) until the dispute has been finally determined in accordance with paragraph 43.
34 (1) Subject to sub–paragraph (5), the undertaker must from the commencement of the construction of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation on land held by the undertaker for the purpose of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2) If any drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of the work, or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the specified work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.
(3) Subject to sub–paragraph (4) and paragraphs 37 and 38, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub–paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is reasonably necessary for such compliance and may recover any reasonable expenditure reasonably incurred by it in so doing from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub–paragraph (2), the drainage authority must not except in a case of emergency exercise the powers conferred by sub–paragraph (3) until the dispute has been finally determined in accordance with paragraph 43.
(5) This paragraph does not apply to—
(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and
(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.
35 Subject to paragraphs 37 and 38 and paragraph 34(5)(b), if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes or land drainage is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker any expenditure incurred by the drainage authority in so doing from the undertaker.
36 If by reason of the construction of the specified work the drainage authority’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the drainage authority to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction.
37 The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur—
(a) in the examination or approval of plans under this Part of this Schedule;
(b) in the inspection of the construction of the specified works or any protective works required by the drainage authority under this Part of this Schedule; and
(c) in the carrying out of any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified works.
38 (1) Without limiting the other provisions of this Part of this Schedule, the undertaker must make reasonable compensation to the drainage authority from costs and losses which may be reasonably incurred or suffered by the drainage authority by reason of—
(a) any damage to any drainage work;
(b) any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses; or
(c) any flooding or increased flooding of any such lands,
caused by the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the specified work.
(2) The drainage authority must take such steps as are reasonable in the circumstances to mitigate in whole or in part and to minimise any costs, expenses, loss, claims, damages, demands, proceedings and penalties to which the indemnity under this paragraph applies where it is within the drainage authority’s reasonable gift and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of the drainage authority’s control. If reasonably requested to do so by the undertaker, the drainage authority must provide a written explanation of how any claim has been mitigated or minimised or where mitigation or minimisation is not possible an explanation as to why.
39 (1) The drainage authority must give to the undertaker reasonable notice of any such claim or demand. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. No settlement or compromise may be made to such claim or any admission made which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.
(2) The drainage authority must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action and is entitled to be repaid its reasonable expenses reasonably incurred in so doing.
40 The fact that any act or thing may have been done by the drainage authority on behalf of the undertaker or in accordance with a plan approved or deemed to have been approved by the drainage authority or in accordance with any requirement of the drainage authority or under its supervision does not, subject to paragraph 39, excuse the undertaker from liability under the provisions of sub-paragraph 38(1) unless the drainage authority fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
41 Nothing in paragraph 38(1) imposes any liability on the undertaker with respect to any damage or loss to the extent that it is attributable to the act, neglect or default of the drainage authority, its officers, servants, contractors or agents.
42 The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the drainage authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part of this Schedule.
43 Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 47 (arbitration), but otherwise is to be determined by the Secretary of State for Energy Security and Net Zero on a reference to them by the undertaker or the drainage authority, after notice in writing by one to the other.
PART 5 For the protection of Network Rail Infrastructure Limited
44 The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 62, of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.
45 In this Part of this Schedule—
“asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by Network Rail;
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;
“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of their powers under section 8(1)(licences) of the Railways Act l993;
“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at Waterloo General Office, London, SE1 8SW) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006 the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited and any successor to Network Rail Infrastructure Limited’s railway undertaking;
“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;
“protective works” means the underpinning, strengthening and any other works the purpose of which is to prevent damage that may be caused by the carrying out or maintenance of the authorised development;
“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;
“railway property” means any railway belonging to Network Rail and—
any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and
any easement or other property interest held or used by Network Rail or a tenant or licencee of Network Rail for the purposes of such railway or works, apparatus or equipment;
“regulatory consents” means any consent or approval required under—
the Railways Act 1993;
the network licence; and/or
any other relevant statutory or regulatory provisions;
by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development; and
“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property, and for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 6 (power to maintain the authorised development) in respect of such works.
46 (1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.
(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—
(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and
(b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.
(3) The undertaker must not exercise the powers conferred by—
(a) article 3 (development consent granted by the Order);
(b) article 6 (power to maintain the authorised development);
(c) article 18 (discharge of water);
(d) article 19 (authority to survey and investigate land);
(e) article 21 (compulsory acquisition of land);
(f) article 23 (compulsory acquisition of rights);
(g) article 25 (private rights);
(h) article 27 (acquisition of subsoil only);
(i) article 30 (temporary use of land for carrying out the authorised development);
(j) article 31 (temporary use of land for maintaining the authorised development);
(k) article 32 (statutory undertakers);
(l) article 36 (felling or lopping of trees and removal of hedgerows);
(m) article 37 (trees subject to tree preservation orders);
(n) the powers conferred by section 11(3) (power of entry) of the 1965 Act;
(o) the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;
(p) the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016; or
(q) any powers under in respect of the temporary possession of land under the Neighbourhood Planning Act 2017,
in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
(4) The undertaker must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, article 25 (private rights) or article 32 (statutory undertakers) in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.
(5) The Undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail.
(6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions including any conditions necessary to ensure operational or railway safety but must never be unreasonable to withhold consent for reasons of operational or railway safety or impose conditions necessary to ensure operational or railway safety (such matters to be in Network Rail’s absolute discretion).
(7) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.
47 (1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article 47 (arbitration).
(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of their disapproval, the undertaker may serve upon the engineer written notice requiring the engineer to intimate their approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated their approval or disapproval, the engineer will be deemed to have approved the plans as submitted.
(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, subject to Network Rail seeking consent from the undertaker (undertaker acting reasonably) and if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without reasonable delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.
(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in their reasonable opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the reasonable expense of the undertaker in either case without unreasonable delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.
(5) The undertaker must not be required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to Network Rail notice as soon as is reasonably practicable, and in addition to that notice must provide a plan, section and description of those works as soon as reasonably practicable subsequently.
48 (1) Any specified work and any protective works to be constructed by virtue of paragraph 47(4) must, when commenced, be constructed—
(a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 47;
(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;
(c) in such manner as to cause as little damage as is possible to railway property; and
(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.
(2) If any damage to railway property or any such interference or obstruction will be caused by the carrying out of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and reasonable compensation for any loss which it may sustain by reason of any such damage, interference or obstruction but always excluding any consequential loss or indirect loss.
(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its employees, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its employees, contractors or agents.
49 The undertaker must—
(a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b) supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it.
50 Network Rail must at all times afford reasonable facilities to the undertaker and its employees, contractors or agents for access to any works carried out by Network Rail under this Part during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.
51 (1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ written notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working, and when necessary, renewing any such alterations or additions.
(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed and provides its consent, (acting reasonably) Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 47(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and reasonable compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work provided that at all times Network Rail will be under an obligation to take reasonable steps to mitigate its loss and always excluding any consequential loss or indirect loss.
(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 52(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.
(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.
52 The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—
(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 47(3) or in constructing any protective works under the provisions of paragraph 47(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;
(b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by them of the construction of a specified work;
(c) in respect of the employment or procurement of the services of any inspectors, signallers, guards and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;
(d) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution of diversion of services which may be reasonably necessary for the same reason; and
(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.
53 (1) In this paragraph—
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and
“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 47(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).
(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—
(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 47(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and
(c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 47(1) has effect subject to the sub-paragraph.
(6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.
(7) In the event of EMI having occurred—
(a) the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;
(b) Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;
(c) Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and
(d) the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.
(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—
(a) Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus;
(b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 48.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 57(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 47 any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
(11) In relation to any dispute arising under this paragraph the reference in article 47 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.
54 If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as that it adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.
55 The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
56 Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.
57 (1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses (but always excluding any consequential or indirect loss) not otherwise provided for in this Part of this Schedule (subject to article 45 (no double recovery)) which may be occasioned to or reasonably incurred by Network Rail—
(a) by reason of the undertaker’s construction, maintenance or operation of a specified work or the failure thereof;
(b) by reason of any act or omission of the undertaker or of any person in its employment or of its contractors or others whilst engaged upon a specified work;
(c) by reason of any act or omission of the undertaker or any person in its employment or of its contractors or others whilst accessing to or egressing from the authorised development;
(d) in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others; and
(e) in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the construction or operation of the authorised development;
and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission, provided Network Rail will be under an obligation to take reasonable steps to mitigate its loss and always excluding any consequential loss or indirect loss.
(2) The fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under their supervision must not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under this Part of this Schedule.
(3) Network Rail must give the undertaker reasonable written notice of any such claim or demand and no settlement or compromise of such a claim or demand can be made without the prior consent of the undertaker. Network Rail must take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.
(4) The sums payable by the undertaker under sub-paragraph (1) must be relevant and include a sum equivalent to the relevant costs.
(5) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(6) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs must, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).
(7) In this paragraph—
“the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a direct result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and
“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.
58 Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs reasonably incurred and mentioned in paragraph 57) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).
59 In the assessment of any sums payable to Network Rail under this Part there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.
60 The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—
(a) any railway property shown on the works and land plans and described in the book of reference;
(b) any lands, works or other property held in connection with any such railway property; and
(c) any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.
61 Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993.
62 The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 7 (benefit of the Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—
(a) the nature of the application to be made;
(b) the extent of the geographical area to which the application relates; and
(c) the name and address of the person acting for the Secretary of State to whom the application is to be made.
63 The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 43 (certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the format reasonably specified by Network Rail (acting reasonably).
64 In relation to any dispute arising under this Part of this Schedule the provisions of article 47 (arbitration) do not apply and any such dispute, 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) to the President of the Institution of Civil Engineers.
PART 6 For the protection of National Highways
Application etc.
65 The provisions of this Part of this Schedule apply for the protection of National Highways and have effect unless otherwise agreed in writing between the undertaker and National Highways.
Interpretation
66 (1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (3) the latter prevail.
(2) Where any provision of this Part of this Schedule requires National Highways to act reasonably, then for the avoidance of doubt, any recommendation, request for information or condition for approval that relates to health and safety of the highway network within National Highways’ jurisdiction will be considered reasonable.
(3) In this Part of this Schedule—
“as built information” means one electronic copy of the following information (in so far as it is relevant to the works concerned)—
as constructed drawings in both PDF and AutoCAD DWG formats for any SRN work designed by the undertaker; in compliance with Interim Advice Note 184 or any successor document, and for the cable works, showing the location and depth of the cable as installed and any ancillary or protective measures installed within the strategic road network;
list of suppliers and materials used, as well as any relevant test results and CCTV surveys (if required to comply with DMRB standards);
product data sheets and technical specifications for all materials used;
as constructed information for any utilities discovered or moved during the works;
method statements for the works carried out;
in relation to road lighting, signs, and traffic signals any information required by Series 1300 and 1400 of the Specification for Highway Works or any replacement or modification of it;
organisation and methods manuals for all products used;
as constructed programme;
test results and records as required by the detailed design information and during construction phase of the project;
a stage 3 road safety audit subject to any exceptions to the road safety audit standard as agreed by the undertaker and National Highways;
in so far as it is relevant to the road works and cable works, the health and safety file; and
such other information as is reasonably required by National Highways to be used to update all relevant databases and to ensure compliance with National Highway’s Asset Data Management Manual as is in operation at the relevant time.
“cable works” means any works under this Order which consist of the installation of cables, cable ducts, tunnels for cables and cable ducts and related or associated works to those operations under the strategic road network and to be through the use of trenchless installation techniques where no works are required to or on the operational carriageway;
“cash surety” means the sum equal to 200% of the cost of the carrying out the SRN works (to include all costs) or such other sum as is agreed;
“condition survey” means a survey of the condition of National Highways structures and assets within the Order limits that may be affected by the SRN works and cable works;
“contractor” means any contractor or subcontractor appointed by the undertaker to carry out the works;
“defects period” means the period from the date of the provisional certificate to the date of the final certificate which may be no less than 12 months from the date of the provisional certificate;
“detailed design information” means such of the following drawings specifications and calculations as are relevant for the SRN works—
site clearance details;
boundary, environmental and mitigation fencing;
road restraints systems and supporting road restraint risk appraisal process assessment;
drainage and ducting as required by DMRB CD 535 Drainage asset data and risk management and DMRB CS551 Drainage surveys – standards for Highways;
earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification;
pavement, pavement foundations, kerbs, footways and paved areas;
traffic signs and road markings;
traffic signal equipment and associated signal phasing and timing detail;
road lighting (including columns and brackets);
regime of California Bearing Ratio testing;
electrical work for road lighting, traffic signs and signals;
motorway communications as required by DMRB;
highway structures and any required structural approval in principle;
landscaping;
proposed departures from DMRB standards;
walking, cycling and horse riding assessment and review report;
stage 1 and stage 2 road safety audits and exceptions agreed;
utilities diversions;
topographical survey;
maintenance and repair strategy in accordance with DMRB GD304 Designing health and safety into maintenance or any replacement or modification of it; or
for the cable works—
earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification;
health and safety information including any asbestos survey required by GG105 or any successor document; and
other such information that may be required by National Highways to be used to inform the detailed design of the cable works;
“DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it;
“final certificate” means the certificate relating to those aspects of the SRN works that have resulted in any alteration to the strategic road network to be issued by National Highways pursuant to paragraph 78;
“highway operations and maintenance contractor” means the contractor appointed by National Highways under the DBFO contract;
“the health and safety file” means the file or other permanent record containing the relevant health and safety information for the authorised development required by the Construction Design and Management Regulations 2015 (or such updated or revised regulations as may come into force from time to time);
“nominated persons” means the undertaker’s representatives or the contractor’s representatives on site during the carrying out of the cable works or SRN works as notified to National Highways from time to time;
“programme of works” means a document setting out the sequence and timetabling of the cable works or SRN works;
“provisional certificate” means the certificate of provisional completion relating to those aspects of either the cable works or the SRN works that have resulted in any alteration to the strategic road network to be issued by National Highways in accordance with paragraphs 73 or 74 as appropriate when it considers the SRN works or cable works are substantially complete;
“road safety audit” means an audit carried out in accordance with the road safety audit standard;
“road safety audit standard” means DMRB Standard HD GG119 or any replacement or modification of it;
“road space booking” means road space bookings in accordance with National Highways’ Asset Management Operational Requirements (AMOR) including Network Occupancy Management System (NOMS) used to manage road space bookings and network occupancy;
“Specification for Highways Works” means the specification for highways works forming part of the manual of contract documents for highway works published by National Highways and setting out the requirements and approvals procedures for work, goods or materials used in the construction, improvement or maintenance of the strategic road network;
“SRN works” means so much of any work authorised by this Order which involve works to the carriageway or verge of any part of the strategic road network, or to operational assets ancillary thereto including highway drainage, and specifically including the alteration of a junction as authorised as part of Work No. 13A, and including any maintenance of that work, as is on, in, or over the strategic road network for which National Highways is the highway authority;
“strategic road network” means any part of the road network including trunk roads, special roads or streets for which National Highways is the highway authority including drainage infrastructure, street furniture, verges and vegetation and all other land, apparatus and rights located in, on, over or under the highway;
“the bond sum” means the sum equal to 200% of the cost of the carrying out the SRN works (to include all costs) plus 100% of the commuted sum, or such other sum as is agreed;
“the commuted sum” means the sum agreed as being the necessary contribution by the undertaker to the increase in costs incurred by National Highways of maintaining new strategic highway assets constructed as SRN works under this Order for ten years from the issue of the final certificate;
“utilities” means any pipes, wires, cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act; and
“winter maintenance” means maintenance of the road surface to deal with snow and ice.
(4) References to any standards, manuals, contracts, Regulations and Directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances.
General
67 No works in carrying out, maintaining or diverting the cable works may be carried out under the strategic road network at a distance within 4 metres of the lowest point of the ground.
68 In respect of a road that it is managed under a DBFO contract both National Highways and the highway operations and maintenance contractor shall have the benefit of this Part of this Schedule but for the purposes of any approvals required under this Part of this Schedule the undertaker shall liaise directly with National Highways.
Works outside the Order limits
69 If the undertaker proposes to carry out works to the strategic road network that are outside of the Order Limits in connection with the authorised development, the undertaker must enter into an agreement with National Highways in respect of the carrying out of those works prior to the commencement of those works.
Prior approvals
70 (1) The SRN works must not commence until—
(a) a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised by them or any exceptions are approved by National Highways (acting reasonably);
(b) the programme of works has been approved by National Highways (acting reasonably);
(c) the detailed design of the SRN works comprising of the following details, insofar as considered relevant by National Highways, has been submitted to and approved by National Highways (acting reasonably)—
(i) the detailed design information, incorporating all recommendations and any exceptions approved by National Highways under sub-paragraph (a);
(ii) details of the proposed road space bookings;
(iii) the identity and suitability of the contractor and nominated persons;
(iv) a process for stakeholder liaison, with key stakeholders to be identified and agreed between National Highways and the undertaker;
(v) information demonstrating that the process undertaken by the undertaker in relation to the SRN works has been adhered to in accordance with DMRB GG142 – Designing for walking, cycling and horse riding;
(d) a scheme of traffic management has been submitted by the undertaker and approved by National Highways, such scheme to be capable of amendment by agreement between the undertaker and National Highways from time to time;
(e) stakeholder liaison has taken place in accordance with the process for such liaison agreed between the undertaker and National Highways under sub-paragraph (c)(iv) above;
(f) National Highways has approved the audit brief and CVs for all road safety audits and exceptions to items raised in accordance with the road safety audit standard;
(g) the undertaker has agreed the estimate of the commuted sum with National Highways;
(h) the scope of all maintenance operations (routine inspections, incident management, reactive and third party damage) to be carried out by the undertaker during the construction of the SRN works (which may include winter maintenance if relevant) has been agreed in writing by National Highways;
(i) the undertaker has procured to National Highways collateral warranties in a form approved by National Highways (acting reasonably) from the contractor and designer of the SRN works in favour of National Highways to include covenants requiring the contractor and designer to exercise all reasonable skill, care and diligence in designing and constructing the SRN works, including in the selection of materials, goods, equipment and plant; and
(j) a condition survey and regime of monitoring of any National Highways assets or structures that National Highways reasonably considers will be affected by the SRN works, has been agreed in writing by National Highways.
(2) The cable works must not commence until—
(a) the detailed design of the cable works including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification, has been submitted to and approved by National Highways; and
(b) a condition survey and regime of monitoring of any National Highways assets or structures that National Highways reasonably considers will be affected by the SRN works, has been agreed in writing by National Highways.
(3) National Highways must prior to the commencement of the cable works and SRN works inform the undertaker of the identity of the person who will act as a point of contact on behalf of National Highways for consideration of the information required under sub-paragraph (1).
(4) Any approval of National Highways required under this paragraph—
(a) must not be unreasonably withheld;
(b) must be given in writing;
(c) will be deemed to have been refused if neither given nor refused within 2 months of the receipt of the information for approval or where further particulars are requested by National Highways, within 2 months of receipt of the information to which the request for further particulars relates; and
(d) may be subject to any conditions as National Highways acting reasonably considers necessary.
(5) Any change to the identity of the contractor and/or designer of the SRN works will be notified to National Highways immediately and details of their suitability to deliver the SRN works will be provided on request along with collateral warranties in a form agreed by National Highways.
(6) Any change to the detailed design of the SRN works must be approved by National Highways in accordance with paragraph 70(1) of this Part of this Schedule.
Construction of the cable works and SRN works
71 (1) The undertaker must give National Highways 14 days’ notice in writing of the date on which the cable works and/or SRN works will start unless otherwise agreed by National Highways.
(2) The undertaker must comply with National Highways’ road space booking procedures prior to and during carrying out the SRN works and no SRN works for which a road space booking is required may commence without a road space booking having first been secured from National Highways.
(3) The cable works and SRN works must be carried out by the undertaker to the reasonable satisfaction of National Highways in accordance with—
(a) the relevant detailed design information and programme of works approved pursuant to paragraph 70(1) or (2) above or as subsequently varied by agreement between the undertaker and National Highways;
(b) the DMRB, the Manual of Contract Documents for Highway Works, including the Specification for Highway Works, together with all other relevant standards as required by National Highways to include, inter alia; all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016 save to the extent that exceptions from those standards apply which have been approved by National Highways; and
(c) all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same.
(4) The undertaker must permit and must require the contractor to permit at all reasonable times persons authorised by National Highways (whose identity must have been previously notified to the undertaker by National Highways) to gain access to the cable works and SRN works for the purposes of inspection and supervision of those works.
(5) If any part of the cable works or SRN works is constructed—
(a) other than in accordance with the requirements of this Part of this Schedule; or
(b) in a way that causes damage to the highway, highway structure or asset or any other land of National Highways,
National Highways may by notice in writing require the undertaker, at the undertaker’s own expense, to comply promptly with the requirements of this Part of this Schedule or remedy any damage notified to the undertaker under this Part of this Schedule, to the reasonable satisfaction of National Highways.
(6) If during the carrying out of the authorised development the undertaker or its appointed contractors or agents causes damage to the strategic road network then National Highways may by notice in writing require the undertaker, at its own expense, to remedy the damage.
(7) In constructing the cable works and SRN works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway over existing utilities must be constructed to the reasonable satisfaction of National Highways.
(8) The undertaker must notify National Highways if it fails to complete the SRN works in accordance with the agreed programme pursuant to paragraph 70(1)(b) of this Part of this Schedule or suspends the carrying out of any SRN work beyond 14 days and National Highways reserves the right to withdraw any road space booking granted to the undertaker to ensure compliance with its network occupancy requirements.
Payments
72 (1) The undertaker must pay to National Highways a sum equal to the whole of any reasonable costs and expenses which National Highways reasonably incurs (including costs and expenses for using internal or external staff) in relation to the cable works and SRN works and in relation to any approvals sought under this Order, or otherwise incurred under this Part of this Schedule, including—
(a) the checking and approval of the information required under paragraphs 70(1) and (2);
(b) the supervision of the cable works and SRN works;
(c) the checking and approval of the information required to determine approvals under this Order;
(d) costs in relation to the transfer of any land required for the SRN works and cable works;
(e) all legal and administrative costs and disbursements reasonably incurred by National Highways in connection with sub-paragraphs (a)-(d) of this sub-paragraph; and
(f) any value added tax which is payable by National Highways only in respect of such costs and expenses arising under this paragraph and for which it cannot obtain reinstatement from HM Revenue and Customs,
together comprising “the NH costs”.
(2) National Highways must provide the undertaker with a schedule showing its estimate of the NH costs prior to the commencement of the cable works and SRN works. Where the undertaker accepts that the estimate of costs is reasonable, the undertaker must pay to National Highways the estimate of the NH costs prior to commencing the SRN works or cable works. Where the undertaker does not accept that the estimate of costs is reasonable, escalation under sub-paragraph (6) will apply.
(3) If at any time after the payment referred to in this sub-paragraph (3) has become payable, National Highways reasonably believes that the NH costs will exceed the estimated NH costs, it may give notice to the undertaker of the amount that it believes the NH costs will exceed the estimate of the NH costs (the excess). Where the undertaker accepts that the estimate of the excess is reasonable, the undertaker must pay to National Highways within 30 days of the date of receipt of a properly issued VAT invoice from National Highways addressed to the undertaker for the excess sum, a sum equal to the excess. Where the undertaker does not accept that the estimate of the excess is reasonable, escalation under sub-paragraph (6) will apply.
(4) National Highways must give the undertaker a final account of the NH costs referred to in sub-paragraph (1) above within 30 days of the issue of the provisional certificate issued pursuant to paragraphs 73(4) or 74 (3).
(5) Within 30 days of the issue of the final account—
(a) if the final account shows a further sum as due to National Highways the undertaker must pay to National Highways the sum shown due to it;
(b) if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by National Highways, National Highways must refund the difference to the undertaker.
(6) Where the undertaker does not agree that an estimate provided by National Highways under this paragraph is reasonable, the undertaker must notify National Highways of that within 15 days of receiving the estimate. The undertaker and National Highways will escalate the estimate internally and will each nominate a senior officer to attend a discussion on the estimate. Where the parties fail to reach agreement following such discussion, any difference or dispute over reasonableness of any excess sum shall be determined by expert determination in accordance with paragraph 85.
Provisional Certificate for SRN works
73 (1) Following any closure or partial closure of any of the strategic road network for the purposes of carrying out the SRN works, National Highways will carry out a site inspection to satisfy itself that the strategic road network is, in its opinion, safe for traffic and the undertaker must comply with any requirements of National Highways prior to reopening the strategic road network.
(2) As soon as the undertaker considers that the provisional certificate may be properly issued it must apply to National Highways for the provisional certificate.
(3) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable—
(a) inspect the SRN works; and
(b) provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose.
(4) When—
(a) a stage 3 road safety audit for the SRN works has been carried out and all recommendations raised including remedial works have (subject to any exceptions agreed) been approved by National Highways;
(b) the SRN works incorporating the approved remedial works under sub-paragraph (4)(a) and any further works notified to the undertaker pursuant to sub-paragraph (3)(b) have been completed to the reasonable satisfaction of National Highways;
(c) the as built information has been provided to National Highways; and
(d) the undertaker has paid the commuted sum to National Highways,
National Highways must issue the provisional certificate.
(5) On the issue of the provisional certificate the bond sum shall be reduced to 20% of the total bond sum save insofar as any claim or claims have been made against the bond before that date in which case National Highways will retain a sufficient sum to ensure it does not have to meet any costs for or arising from the SRN works.
(6) In this paragraph, “reasonable satisfaction” means fair, proper and moderate under the circumstances, having regard to the details approved under paragraph 70. The undertaker must submit a stage 4 road safety audit as required by and in line with the timescales stipulated in the road safety audit standard. The undertaker must comply with the findings of the stage 4 road safety audit and must pay all costs of and incidental to such and provide updated as-built information to National Highways.
Provisional Certificate for cable works
74 (1) As soon as the undertaker considers that the provisional certificate for the cable works may be properly issued it must apply to National Highways for the provisional certificate.
(2) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable—
(a) inspect the area of the highway within the strategic road network over the route of the cable works; and
(b) provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose.
(3) When the cable works incorporating any further works notified to the undertaker pursuant to sub-paragraph 74(2)(b) have been completed to the reasonable satisfaction of National Highways, National Highways must issue the provisional certificate.
Opening
75 The undertaker must notify National Highways not less than 14 days in advance of the intended date of opening to the public of the strategic road network and the undertaker must notify National Highways of the actual date the strategic road network will be opened to the public within 14 days of that date.
Final condition survey
76 (1) The undertaker must, as soon as reasonably practicable after making its application for a provisional certificate pursuant to paragraph 73(2) or 74(1), arrange for any highways structures and assets that were the subject of the condition survey to be re-surveyed and must submit the re-survey to National Highways for its approval. The re-survey will include a renewed geotechnical assessment required by DMRB CD622 for the SRN works, cable works and any other works beneath the strategic road network.
(2) If the re-surveys carried out pursuant to paragraph 76(1) indicates that any damage has been caused to a structure or asset, the undertaker must submit a scheme for remedial works in writing to National Highways for its approval in writing (acting reasonably) and the undertaker must carry out the remedial works at its own cost and in accordance with the scheme submitted.
(3) If the undertaker fails to carry out the remedial work in accordance with the approved scheme, National Highways may carry out the steps required of the undertaker and may recover any expenditure it reasonably incurs in so doing.
(4) National Highways may, at its discretion, at the same time as giving its approval to the re-surveys pursuant to paragraph 76(1), give notice in writing that National Highways will remedy any damage identified in the re-surveys and National Highways may recover any expenditure it reasonably incurs in so doing.
(5) The undertaker must make available to National Highways upon request copies of any survey or inspection reports produced pursuant to any inspection or survey of any cable work or SRN work following its completion that the undertaker may from time to time carry out.
Defects Period
77 (1) The undertaker must at its own expense remedy any defects in the strategic road network resulting from the carrying out of the SRN works as are reasonably required by National Highways to be remedied during the defects period. All identified defects must be remedied in accordance with the following timescales—
(a) in respect of matters of urgency, within 24 hours of receiving notification for the same (urgency to be determined at the absolute discretion of National Highways);
(b) in respect of matters which National Highways considers to be serious defects or faults, within 14 days of receiving notification of the same; and
(c) in respect of all other defects notified to the undertaker, within 4 weeks of receiving notification of the same.
(2) Following the expiry of the defects period National Highways has responsibility for routine maintenance of the strategic road network save for any soft landscaping works which must be established and which must thereafter be maintained for a period of 3 years by and at the expense of the undertaker.
Final Certificate
78 (1) The undertaker must apply to National Highways for the final certificate no sooner than 12 months from the date of the provisional certificate for the SRN works pursuant to paragraph 73(2) and provisional certificate for cable works pursuant to the paragraph 74(1).
(2) Following receipt of the application for the final certificate, National Highways must as soon as reasonably practicable—
(a) inspect the strategic road network; and
(b) provide the undertaker with a written list of any further works required to remedy or make good any defect or damage in the strategic road network or confirmation that no such works are required for this purpose.
(3) The undertaker must carry out such works notified to it pursuant to sub-paragraph 78(2).
(4) When National Highways is satisfied that—
(a) any defects or damage arising from defects during the defects period and any defects notified to the undertaker pursuant to sub-paragraph 78(2) and any remedial works required as a result of any relevant stage 4 road safety audit have been made good to the reasonable satisfaction of National Highways; and
(b) the NH costs have been paid to National Highways in full,
National Highways must issue the final certificate after which the bond shall be released in full.
(5) The undertaker must pay to National Highways within 30 days of the date of receipt of a properly issued VAT invoice from National Highways addressed to the undertaker, the costs reasonably incurred by National Highways in identifying the defects and supervising and inspecting the undertaker’s work to remedy the defects that it is required to remedy pursuant to these provisions.
Security
79 The SRN works may not commence until—
(a) the undertaker procures that the SRN works are secured by a bond from a bondsman first approved by National Highways in the agreed form between the undertaker and National Highways to indemnify National Highways against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of the SRN works provided that the maximum liability of the bond must not exceed the bond sum; or
(b) the undertaker has provided the cash surety which may be utilised by National Highways in the event of the undertaker failing to meet its obligations to make payments under paragraph 72 or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker under the provisions of this Part of this Schedule; or
(c) a combination of a bond and cash surety together totalling 200% of the projected costs of the SRN works.
Commuted sums
80 National Highways must provide to the undertaker an estimate of the commuted sum, calculated in accordance with FS Guidance S278 Commuted Lump Sum Calculation Method dated 18 January 2010 or any successor guidance, prior to the issue of the provisional certificate for the SRN works.
Insurance
81 Prior to the commencement of the cable works and SRN works the undertaker or its contractor must effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) in respect of any one claim or series of claims arising from one event against any legal liability for damage, loss or injury to any property or any person as a direct result of the execution of the cable works or road works or use of the strategic road network by the undertaker.
Indemnity
82 (1) The undertaker indemnifies National Highways from and against all costs, claims, expenses, damages, losses and liabilities suffered by National Highways arising from the construction of the SRN works or maintenance of the SRN works undertaken (but always excluding any consequential loss or indirect loss suffered by National Highways) before the issue of the final certificate for the SRN works, or any construction, maintenance or decommissioning of the cable works, or exercise of or failure to exercise any power under this Order within 30 days of an itemised demand subject to sub-paragraphs (2) to (5).
(2) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of—
(a) any damage to the extent that it is attributable to the neglect or default of National Highways, its officers, servants, contractors or agents;
(b) any SRN works carried out by National Highways as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article 7 (benefit of the Order).
(3) National Highways must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
(4) National Highways must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.
(5) National Highways must use its reasonable endeavours to mitigate and to minimise any costs, claims, expenses, damages, losses and to which the indemnity under this paragraph applies where it is within National Highways’ reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties outside of National Highways’ control and if reasonably requested to do so by the undertaker National Highways must provide an explanation of how the claim has been minimised, where relevant.
Maintenance of the authorised development
83 (1) The undertaker must, prior to the commencement of any works of maintenance to the specified cable works, give National Highways 28 days’ notice in writing of the date on which those works will start unless otherwise agreed by National Highways, acting reasonably.
(2) If, for the purposes of maintaining the SRN works or the cable works , the undertaker needs to occupy any road space, the undertaker must comply with National Highways’ road space booking requirements and no maintenance of any works for which a road space booking is required may commence without a road space booking having first been secured.
(3) The undertaker must comply with any requirements that National Highways may notify to the undertaker, such requirements to be notified to the undertaker not less than 7 days in advance of the planned commencement date of the maintenance works.
(4) The provisions of paragraph 75 will apply to the opening of any part of the strategic road network following occupation of any road space under this paragraph.
Land
84 (1) Following the issue of the final certificate pursuant to paragraph 78 National Highways may serve notice on the undertaker that it wishes to take a freehold transfer of land within the extent of strategic road network boundary which is not in the ownership of National Highways but has been acquired by the undertaker for the purposes of carrying out the SRN works.
(2) If the undertaker receives notice under sub-paragraph (1) then the undertaker must effect a freehold transfer of the land which is the subject of the notice and complete such transfer as soon as reasonably practicable at no cost to National Highways.
Expert Determination
85 (1) Article 47 (arbitration) of the Order does not apply to this Part of this Schedule.
(2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.
(3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute.
(4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed.
(5) The expert must—
(a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment;
(b) permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission;
(c) issue a decision within 7 days of receipt of the submissions under sub-paragraph (b); and
(d) give reasons for the decision.
(6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47 (arbitration).
(7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.
PART 7 For the protection of London Gateway Port
86 In this Part of this Schedule—
“cable specification and installation plan” means the cable specification and installation plan to be approved under condition 13(1)(g) of the deemed marine licence for the transmission assets in Schedule 11;
“London Gateway” means London Gateway Port Limited, Company No. 04341592, as harbour authority for the London Gateway Port, pursuant to the London Gateway HEO; and
“London Gateway HEO” means the London Gateway Port Harbour Empowerment Order 2008.
Application
87 The following provisions, unless otherwise agreed in writing between the undertaker and the London Gateway, have effect.
Approvals
88 The undertaker will obtain the approval in writing of London Gateway of the draft cable specification and installation plan (in so far as that plan relates to any area or areas of Work No. 2 which are within the jurisdiction of the London Gateway HEO) before any application for approval of that plan is submitted by the undertaker in compliance with condition 13 of the deemed marine licence for the transmission assets in Schedule 11.
89 The draft cable specification and installation plan referred to in paragraph 88 must set out for Work No. 2—
(a) the proposed cable burial depth(s);
(b) the proposed cable burial methods;
(c) any cable protection proposed including type, volume and anticipated locations; and
(d) the proposed programme of work for cable burial.
Approvals and refusals
90 London Gateway must issue any approval or refusal of a draft plan submitted to it in accordance with paragraph 88 within 28 days of the date of submission of that draft unless any other period is agreed with the undertaker.
91 All decisions of London Gateway under these provisions must be made acting reasonably.
92 All decisions of London Gateway under these provisions must be issued in writing and the undertaker may provide a copy of any such decision to the Marine Management Organisation or any other regulatory body.
93 Where London Gateway refuses to approve a draft plan it must provide reasons for refusal in writing to the undertaker at the same time as it issues the refusal.
94 Where no decision is issued within the 28 day period set out in paragraph 90, the draft plan submitted will be deemed to be approved by London Gateway.
95 Any difference or dispute arising between the undertaker and London Gateway must, unless otherwise agreed in writing between the undertaker and London Gateway, be determined by arbitration in accordance with article 47 (arbitration) of this Order.
PART 8 For the protection of North Falls Offshore Wind Farm
96 The following provisions, unless otherwise agreed in writing between the undertaker and North Falls, have effect.
97 In this Part of this Schedule—
“apparatus” means any cables, ducts, electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by North Falls or any successor as developer or operator of any part of the North Falls offshore wind farm development onshore grid connection, together with any replacement apparatus, and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“North Falls” means North Falls Offshore Wind Farm Limited (and any successor in title, transferee and lessee, as the case may be) as the undertaker with the benefit of all or part of the North Falls Offshore Wind Farm Order.
Application
98 This Part of this Schedule applies for the protection of North Falls and the following provisions, unless otherwise agreed in writing between the undertaker and North Falls, have effect.
99 This Part of this Schedule ceases to have effect where, in the event that North Falls is granted a Development Consent Order by the Secretary of State, on the date upon which that Order expires without the development authorised by it having been commenced.
Acquisition of land and protection of apparatus
100 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in land or any apparatus or override any easement or other interest of North Falls otherwise than by agreement, such agreement not to be unreasonably withheld or delayed.
101 If, in the exercise of the agreement reached in accordance with paragraph 100 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed and any right of North Falls to maintain that apparatus in that land must not be extinguished.
102 (1) Not less than 56 days (or such lesser period agreed by North Falls, acting reasonably) before commencing the execution of any works authorised by the Order that are near to, or will or may affect any apparatus, the undertaker must submit to North Falls a plan of such works.
(2) In relation to works which will or may be situated on, over, under or within five metres measured in any direction of any apparatus, or involve embankment works within 5 metres of any apparatus, the plan to be submitted to North Falls under sub-paragraph (1) must be detailed including details of the materials and products to be used in the works and describing—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction, renewal, replacement or upgrade including details of excavation and positioning of plant;
(d) the position of all apparatus; and
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus.
(3) The undertaker must not commence the construction or renewal of any works to which subparagraphs (1) or (2) apply until North Falls has given written approval of the plan so submitted.
(4) Any approval of North Falls required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and
(b) must not be unreasonably withheld or delayed.
(5) In relation to a work to which sub-paragraphs (1) or (2) apply, North Falls may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus provided that such modifications are requested within a period of 56 days beginning with the date on which the plan under sub-paragraph (1) is submitted to it (or such lesser period agreed by the statutory undertaker, acting reasonably). For the avoidance of doubt, provided that any further iterations of the plan submitted to the statutory undertaker for approval as a result of modifications required under this paragraph are not materially different to the modifications previously requested by North Falls, any further required modifications will be requested by North Falls as soon as reasonably practicable thereafter and in any event within 21 days of receipt of any further plans.
(6) Works executed under this Order must be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (2), as amended from time to time by agreement between the undertaker and the statutory undertaker and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by the statutory undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the statutory undertaker is entitled to watch and inspect the execution of those works.
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works (unless otherwise agreed by North Falls, acting reasonably), a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(8) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to North Falls notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5) and (6) insofar is reasonably practicable in the circumstances.
Access
103 If in consequence of the agreement reached in accordance with paragraph 100 or the powers granted under the Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as enables North Falls to maintain or use the apparatus no less effectively than was possible before such obstruction.
Build option 1 scenario
104 (1) Where the undertaker determines to proceed with Build option 1 and the parties intend for the additional ducts installed as Work Nos. 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12A, 14A and 15E to be transferred to North Falls then—
(a) the undertaker will consult and agree with North Falls on its detailed design and construction methodology, including means of access, before any application for discharge of requirements necessary to carry out Work Nos. 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12A, 14A and 15E is made to the relevant planning authority; and
(b) the undertaker will agree the route and specification of any permanent access to be used by both the undertaker and North Falls prior to discharging any requirement for the detailed design of such access necessary to construct such access.
(2) Any agreement required under this paragraph must not be unreasonably withheld or delayed and any requests for amendment must have regard to the scope of the assessment set out in the Environmental Statement.
Design collaboration
105 The undertaker and North Falls must each act in good faith and use reasonable endeavours to co-operate with, and provide assistance to, each other as may be required to give effect to the provisions of this Part.
Arbitration
106 Any difference or dispute arising between the undertaker and North Falls must, unless otherwise agreed in writing between the undertaker and North Falls, be determined by arbitration in accordance with article 47 (arbitration) of the Order.
PART 9 For the protection of Port of London Authority (onshore)
Application
107 The provisions of this Part of this Schedule apply for the protection of the PLA and have effect unless otherwise agreed in writing between the undertaker and PLA.
Interpretation
108 (1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (2) the latter prevail.
(2) In this Part of the Schedule—
“apparatus” means all towers, apparatus and equipment situated on the PLA Property;
“immediate” means as soon as reasonably practicable to allow access by completing any vehicle movements in progress, removing staff and barriers from the carriageway except as required to maintain health and safety and taking any other action necessary to allow passage within a target response time of no more than 5 minutes;
“physical measures” means any measure carried out by the undertaker which will restrict any part of the access to the PLA Property particularly anything that involves closure or narrowing of the access. For the avoidance of doubt it will not include measures carried out for safe movement of vehicles such as banksmen used to manage the flow of traffic;
“PLA” means the Port of London Authority;
“PLA Property” means the radar site at Manor Way, Holland Haven in the vicinity of Plots 01-001, 01-002, 01-003; and
“utilities and services” means all existing functional services above and below ground including drainage, surface water drainage, power and communications cables and pipelines, manholes and supports serving the apparatus.
Access
109 (1) Access for the PLA or any person acting under its instruction, including access for vehicles and plant, to the PLA Property over plots 01-001 and 01-002 and to any apparatus utilities and services, will not be extinguished or prevented and must not be unreasonably restricted or delayed by the undertaker during the construction, operation, maintenance or decommissioning of the authorised development.
(2) Unreasonable delay or restriction in sub-paragraph (1) will not prevent the temporary restriction of access for other users (including access by the public) or the control or marshalling of access to facilitate the safe movement of large vehicles or plant or the carrying out of works to the access route by the undertaker, subject to the provisions of sub-paragraphs (3) and (4) of this paragraph.
(3) Where any part of the access to the PLA Property is restricted or controlled by the undertaker, any physical measures shall be agreed by the PLA (acting reasonably) prior to the implementation. The undertaker must provide access to the PLA Property on request by the PLA (which may be verbal) or any person acting under its instruction and take immediate steps to allow access to and from the PLA Property through or around that restriction or physical measure.
(4) The undertaker may not temporarily close, alter or divert the access route to the PLA Property over plots 01-001 and 01-002 under article 14 (temporary restriction of use of streets) or article 17 (power to alter layout etc. of streets) of this Order or any other power in this Order in so far as any such works create or result in physical measures impeding access unless the closure, alteration or diversion and the means of maintaining access for the PLA during such closure, alteration or diversion has been agreed between the undertaker and the PLA (such agreement must not be unreasonably withheld or delayed).
Extinguishment of rights
110 Regardless of any provision in this Order, the undertaker may not extinguish any interest or right vested in or benefitting the PLA unless the consent of the PLA in writing has been given to such extinguishment.
Installation of structures
111 (1) Without prejudice to paragraph 112 and the generality of any other protection afforded to the PLA the undertaker may not erect, install, move, store or use within plots 01-002 and 01-003 any structure or plant, including any assembled crane, which would have a maximum height at any point in excess of 25m from ground level unless and until the consent of the PLA in writing has been given to the erection or installation of that structure.
(2) As part of an application for consent under this paragraph 111 the undertaker must submit to the PLA a plan, section and description of the structure or plant and the works to be executed in connection with the erection, installation, movement, storage or use of the structure and plant.
(3) Any structure or plant to which this paragraph 111 applies may only be erected, installed, moved, stored or used in the location(s), to the maximum height and in accordance with the plan, section and description submitted under sub-paragraph (2) and approved by the PLA (such approval not to be unreasonably withheld or delayed) and in accordance with such reasonable requirements as may be requested in accordance with sub-paragraph (4) by the PLA for the protection of the apparatus, or for securing access to it, and the PLA is entitled to watch and inspect the structure or plant and the execution of those works associated with the erection, installation, movement, storage or use of the structure and plant (acting reasonably).
(4) Any requirements requested by the PLA under sub-paragraph (3) must be made within a period of 28 days beginning with the date on which a plan under sub-paragraph (2) is submitted to it.
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days or as agreed between the undertaker and the PLA in writing, before commencing the erection, installation, movement, storage or use of any structure or plant to which this paragraph 111 relates, a new plan instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
Services
112 Without prejudice to the generality of any other protection afforded to the PLA elsewhere in the Order, the undertaker must not decommission or remove any utilities and services and any right of the owner of the utilities and services to access and maintain the utilities and services must not be extinguished until alternative utilities and services have been constructed and are in operation serving the apparatus to the PLA’s reasonable satisfaction.
PART 10 For the protection of the Port of London Authority (offshore)
113 In this Part of this Schedule—
“Area of Interest” means the area shown shaded in yellow on the Deep Water Route Cable Installation Area (Future Dredging depths) plan encompassing the Deep Water Routes;
“cable burial risk assessment” means the cable burial risk assessment appended to the cable specification and installation plan;
“cable specification and installation plan” means the cable specification and installation plan together with the cable burial risk assessment to be approved under condition 13(1)(g) of the deemed marine licence for the transmission assets in Schedule 11;
“construction” includes execution, placing, altering, replacing, relaying, removal, renewal works of maintenance and decommissioning, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation, and “construct” and “constructed” are to be construed accordingly;
“commencement” for the purpose of this Part of this Schedule means the carrying out of any authorised development and monitoring activities;
“Deep Water Routes” mean the Sunk and Trinity deep water routes;
“installation” has the same meaning as construction and “installed” is to be construed accordingly;
“maintain” has the same meaning as in article 2 (interpretation) save that it includes monitoring within the Area of Influence and “maintenance” shall be construed accordingly;
“navigation and installation plan” means the navigation and installation plan to be approved under condition 13(1)(j) of the deemed marine licence for the transmission assets in Schedule 11;
“PLA” means the Port of London Authority;
“plans” includes navigational risk assessments, plans, sections, elevations, drawings, specifications, programmes, construction methods and descriptions including, where applicable, relevant hydraulic information as may be reasonably requested by the PLA; and
“specified work” means Work No. 2(c), and any other part of the offshore works forming part of the authorised development (which for this purpose includes the maintenance and decommissioning of any part of the authorised development).
Application
114 The following provisions, unless otherwise agreed in writing between the undertaker and the PLA, have effect, for the protection of the PLA in relation to the construction of Work No. 2(c) to be constructed and operated as part of the authorised development.
Consultation and notice
115 (1) The undertaker will consult the PLA on—
(a) the cable specification and installation plan (in so far as that plan relates to any specified work within the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 13 of the deemed marine licence for the transmission assets in Schedule 11 and any revisions arising from such application; and
(b) a navigation and installation plan (in so far as that plan relates to any specified work within the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 13 of the deemed marine licence for the transmission assets in Schedule 11 and any revisions arising from such application.
(2) The undertaker will consult the PLA on the proposed activities and programme for any pre-construction monitoring, construction monitoring, post construction monitoring and related reporting within the Area of Interest no less than 20 business days before such survey work is programmed to commence. The undertaker must have regard to any request made by the PLA for reasonable amendment to the programme, which request must be made to the undertaker within 5 business days of receipt of the details of the proposed activities and programme.
(3) The undertaker must notify the PLA of the final planned programme for any survey work to be undertaken under this Order within the Area of Interest no less than 5 business days before such survey work is programmed to begin.
(4) The undertaker will consult the PLA on any application for marine licensing for the disposal of unexploded ordinance within the Area of Interest before such applications are submitted to the MMO. The undertaker must have regard to any request made by the PLA for reasonable amendment to the proposed application, which request must be made to the undertaker within 10 business days of receipt of the details of the proposed application.
(5) The undertaker must notify the PLA of the final programme for any clearance of unexploded ordnance to be undertaken within the Area of Interest no less than 20 business days before such disposal is programmed to begin.
(6) The undertaker will consult the PLA on the activities and programme for any specified work to be undertaken under this Order which is not covered by the cable specification and installation plan and which is within the Area of Interest no less than 20 business days before such specified work is programmed to commence. The undertaker must have regard to any request made by the PLA for reasonable amendment to the activities or programme.
(7) The undertaker must notify the PLA of the final method statement and programme for any specified work to be undertaken under this Order which is not covered by the cable specification and installation plan and which is within the Area of Interest no less than 5 business days before such work is programmed to begin.
Cable Specification and Installation Plan
116 The cable specification and installation plan referred to in paragraph 115 must be informed by a cable burial risk assessment, and set out for Work No. 2(c), in so far as it applies to the Deep Water Routes—
(a) that any part of Work No. 2(c), any associated development or ancillary works located within the Area of Interest as shown shaded yellow on the Deep Water Route Cable Installation Area (Future Dredging depths) plan must be installed at a level which would not impede the dredging of those parts of the Sunk and Trinity Deep Water Routes—
(i) shown shaded in yellow and outlined in a bold black line (and labelled Sunk Area A (22m CD)) to a level of 22 metres below Chart Datum;
(ii) shown shaded in yellow and outlined in a blue dotted line (and labelled Trinty (22m CD)) to a level of 22 metres below Chart Datum; and
(iii) shown shaded in yellow and cross hatched in orange (and labelled Sunk Area B (19m CD)) to a level of 19 metres below Chart Datum;
(b) the proposed cable installation methods and measures for management of construction risks;
(c) any cable protection proposed including type, volume and locations;
(d) during construction of the cables and cable protection in the Area of Interest arrangements for the consultation of the PLA in a timely manner, on such matters regarding those works as the PLA may reasonably request including arrangements for providing the PLA with a point of contact for continuing liaison and co-ordination throughout the construction of these works;
(e) the proposed programme of work for cable installation and arrangements for notification of any changes to the programme to the PLA;
(f) monitoring arrangements and the results of these surveys being made available to the PLA within 10 business days of the undertaker receiving reports of the survey results; together with methods and timescales to rectify any issues which may compromise the level referred to in sub paragraph (a) of this paragraph 116; and
(g) a requirement for a process (subject to paragraphs 119 and 120) and timescales (both the undertaker and PLA acting reasonably) for cable re-installation if the level of the cable is such that the under keel clearance specified in the Outline CSIP cannot be achieved over the lifetime of the authorised development.
Monitoring
117 If, following the results of any geophysical surveys carried out using multi-beam echo sounder survey (MBES), it is confirmed that cable exposure has occurred within the Area of Interest, the undertaker will notify the PLA as soon as reasonably practicable and in any event no later than 2 business days after the undertaker confirms any exposure has occurred.
118 The PLA must notify the undertaker of any potential cable exposure that is identified by the PLA in relation to the Area of Interest as soon as reasonably practicable.
Remediation
119 Where, following the installation of cables forming Work No. 2(c) in relation to the Area of Interest it is identified by the undertaker (who shall notify the PLA as soon as reasonably practicable of this fact, and in any event within 2 business days) or, following inspection by the PLA, it is identified by the PLA (and the same is notified to the undertaker as soon as reasonably practicable), that the level of cable is such that the paragraph 116(a) level has not been achieved or at any time following installation or maintenance the cable has moved such that the requirements of paragraph 116(a) are no longer being achieved, then, unless otherwise agreed in writing with the PLA, the undertaker is required to carry out remediation works as specified in the cable specification and installation plan subject to paragraph 120 in relation to the Deep Water Routes.
120 Unless otherwise agreed in writing with the PLA, the undertaker will carry out the following arrangements for the carrying out the remediation works as set out in paragraph 121 below.
121 (1) The undertaker will re-bury the cables to the required specification to achieve the requirements of paragraph 116(a).
(2) Following the completion of the works in sub-paragraph (1), if it is identified by the undertaker or the PLA (following inspection) that the required specification is not achieved, then the undertaker will remove the cable without unreasonable delay and thereafter relay a new cable pursuant to an updated cable specification and installation plan which updated cable specification and installation plan specifically identifies and addresses why the previous cable burial was not successful, how that has been addressed and what measures are to be used in relaying the cable to prevent the failure reoccurring.
(3) The undertaker will consult the PLA on the draft updated cable specification and installation plan required under sub-paragraph (2) and the provisions of both this paragraph and paragraph 117 will apply to that updated cable specification and installation plan.
(4) The steps in this paragraph shall be repeated until the requirement in paragraph 116(a) is achieved or the cable is permanently removed from the Area of Interest.
Provision of as built details
122 As soon as reasonably practicable following the completion of the installation of cables forming Work No. 2(c) and after any maintenance of the same, the undertaker must provide (on a strictly confidential basis) to the PLA as built drawings of Work No. 2(c) in a form and scale to be agreed between the undertaker and the PLA to show the position, depth and any cable protection installed as part of Work No. 2(c) in relation to the Deep Water Routes provided that the PLA must not disclose (without the written consent of the undertaker) any information that has been provided by the undertaker to the PLA on a confidential basis or which is marked as commercially sensitive and must hold such information on a confidential basis only, except that the PLA may provide the information to contractors and agents acting on its behalf (including but not limited to contractors engaged to carry out dredging operations) provided that such agents and contractors are required by the PLA to treat such information as confidential.
Transfer of the benefit
123 The undertaker must within 7 days after the completion of any sale, agreement or other transaction under article 7 (benefit of the Order) in relation to which any powers, rights and obligations of the undertaker are transferred to another party, notify the PLA in writing, and the notice must include particulars of the other party to the transaction under article 7, the general nature of the transaction and details of the extent, nature and scope of the works or functions sold, transferred or otherwise dealt with.
Disputes
124 Any dispute arising between the undertaker and the PLA under this Schedule is to be escalated in the first instance to senior representatives from the PLA and the undertaker, and the PLA and undertaker must seek to resolve the dispute through a meeting between the parties promptly and in any event within 10 business days, Where, following escalation the dispute is not resolved, it is to be determined by arbitration as provided in article 47 (arbitration) of this Order.
PART 11 For the protection of Essex County Council as local highway authority
Application
125 The provisions of this Part of this Schedule have effect in relation to the works (as defined under paragraph 126 unless otherwise agreed in writing between the undertaker and Essex County Council in its capacity as the local highway authority.
Definitions
126 In this Part of this Schedule—
“as built drawings” means—
drawings showing the as constructed local highways in an appropriate format (including digital storage media);
drawings showing the location for utilities installed in the local highway; and
specifications for materials used for the constructed local highway;
“construction period” means for each work, from commencement of the relevant work forming part of the authorised development under this Order until the issue of the final certificate for that work;
“detailed design” means drawings and other information comprising the detailed design for the alteration and improvement of local highways comprised in the authorised development;
“detailed information” means drawings, specifications and other information relating to the local highway, as relevant to the works in question (insofar as both parties agree (acting reasonably) are relevant and not already provided for in any document that the undertaker is required to produce under Schedule 2 to the Order) which must be in accordance with the detailed design and include—
information and assessment required to demonstrate compliance of any trenchless crossing works with DMRB Volume 4 section 1 CD 622 (Managing geotechnical risk);
long and cross sectional drawings;
traffic signs and road markings;
landscaping, planting and any boundary features which will form part of the local highway;
a schedule of timings for the works, including dates and durations for any temporary closures of any part of the local highway;
traffic management proposals including any diversionary routes;
a schedule of the existing local highway condition prior to commencement of construction related activities; and
folio drawings in line with the Essex Standard Drawings, or such replacement or modification of the design standards applied to the construction of new roads and alternations to existing roads across the County of Essex;
“DCM” means the Development Construction Manual published by Essex County Council, or any replacement or modification of that manual for the time being in force;
“DMRB” means the Design Manual for Roads and Bridges published by National Highways, or any replacement or modification of that standard for the time being in force;
“final certificate” means the final certificate issued by the local highway authority under paragraph 135 of this Part of this Schedule;
“HPN039” means Highways Practice Note 039 Procedure for Road Safety Audit as published by Essex County Council, or any replacement or modification of that standard for the time being in force;
“local highway” means any public highway including any public right of way which is maintainable, or is intended at the completion of the works in relation thereto to be maintainable, by a local highway authority;
“local highway authority” means Essex County Council;
“maintenance period” means 12 months from the date of the provisional certificate being served under paragraph 133 of this Part of this Schedule unless otherwise agreed in writing between the parties;
“provisional certificate” means the certificate served under paragraph 133 of this Part of this Schedule;
“senior representatives” means the nominated senior representative on behalf of the undertaker and persons notified to the undertaker by the relevant local highway authority as being their senior representatives; and
“works” means any works authorised by the Order undertaken on, to or under any part of the local highway.
Design input and commencement
127 (1) The undertaker must allow and facilitate an appropriately qualified person or persons duly appointed by the local highway authority (each being a “nominated officer”) to participate in the design process for the detailed design for the works. The undertaker agrees to incorporate reasonable representations of the nominated officer in finalising its detailed design proposal (subject to the undertaker being able to refuse implementation of any representation which would cause a breach of this Order, or would entail materially new or materially different environmental effects from those reported in the environmental statement).
(2) Participation under sub-paragraph (1) will be in the form of invitations (given at least 20 business days in advance and sent by email to the nominated office and marked ‘urgent’) to attend design meetings relating to relevant works and the provision to the nominated officer of such drawings, cross/long sections, design proposals and other information as is reasonably required to allow the nominated officer to provide an informed response on the detailed design proposals to the undertaker.
(3) The nominated officer will have no less than 20 business days from the date on which the undertaker supplies information pursuant to sub-paragraph (2) to provide the undertaker with any comments upon any information provided to that officer pursuant to sub-paragraph (2).
(4) No part of the works may commence until the undertaker has provided to the local highway authority the detailed information relating to that part of the works (without prejudice to the undertaker providing parts of the detailed information insofar as it relates to the operation of the local highway at a later date, provided the provision of that information is subject to this sub-paragraph and sub-paragraphs (5) to (7)).
(5) The undertaker will give the local highway authority at least 20 business days to comment and provide representations by email on the detailed information provided to it under sub-paragraph (4).
(6) The undertaker will incorporate any reasonable comments, representations and recommendations made by the local highway authority (acting reasonably) under sub-paragraph (5) (and, without limitation, the undertaker is able to refuse implementation of any representation or recommendation which would cause a breach of this Order, conflict with a permit issued under a permit scheme operated by the local highway authority or would entail materially new or materially different environmental effects from those reported in the environmental statement) and will provide the local highway authority with reasons for non-acceptance of any representation or recommendation as soon as reasonably practicable upon receipt of a request from the local highway authority in writing within 10 business days of its decision.
(7) The works must not be carried out except in accordance with the detailed information (but subject to the process in sub-paragraphs (4) and (5) or as otherwise may be agreed prior to the date of commencement of the relevant works between the undertaker and the local highway authority.
(8) This paragraph does not apply to the works to the extent that would cause an inconsistency with any provision of this Order.
128 (1) Before commencing the construction of, or the carrying out of any work authorised by this Order which involves works to a local highway the undertaker must use reasonable endeavours to agree with the local highway authority (acting reasonably) a local operating agreement covering the following as relevant to the works in question—
(a) communications and customer care arrangements for communication with stakeholders and the local community including—
(i) the identity of the party responsible for each activity;
(ii) the identity of the representative of the undertaker or the undertaker’s contractor responsible for stakeholder engagement and communication;
(iii) defined timescales for contractor responses to communications;
(iv) the form of documentation required under paragraph 127 immediately above;
(v) the relevant email details from time to time under paragraph 127 immediately above;
(vi) road safety audit invitation process under paragraph 131 below; and
(vii) the senior representation process under paragraph 138 below;
(b) definition of the extents for the works areas between the highway boundary, the traffic management lead in tapers, the longitudinal coning and the end of the lead out tapers, zone of influence (being the area which is reasonably affected by those work areas), traffic management and diversion requirements and free recovery areas (as appropriate);
(c) arrangements for the submission to the local highway authority of digital copies (including digital storage media) of all as-built drawings for the relevant work area including identification of any new limits of highway maintainable by the local highway authority in accordance with paragraph 134 of this Part of this Schedule;
(d) where applicable, winter maintenance including anticipated winter treatments and severe weather arrangements to apply during the construction period and the maintenance period;
(e) repair arrangements in relation to local highways directly affected by the construction of the authorised development;
(f) where applicable, continuity of technology arrangements to apply during the construction period and the maintenance period;
(g) arrangements for dealing with and recording incidents during the construction period and the maintenance period including appropriate provision of recovery vehicles; and
(h) traffic management: during relevant works.
(2) Any agreement completed under sub-paragraph (1) must be complied with by the undertaker and continue in force until such time as a final certificate has been issued in respect of the relevant works.
Survey reinstatement
129 The undertaker must reinstate to the reasonable satisfaction of the local highway authority any part of the local highway which has been temporarily used for survey or investigation by the undertaker pursuant to article 20 (protective work to buildings) and article 30 (temporary use of land for carrying out the authorised development) of this Order or any other power in this Order to the condition it was in on the date on which the survey or investigation began or such other condition as may be agreed in writing by the local highway authority.
Inspections and testing of materials
130 (1) The undertaker must allow and facilitate any person acting on behalf of the local highway authority to access and inspect at all reasonable times any part of the works during their construction and before a final certificate has been issued in respect of the relevant works as is reasonably necessary to ensure that the works have been or are being carried out in accordance with the detailed design and to the appropriate standard.
(2) The undertaker must allow any person duly appointed by the local highway authority to enter upon and inspect any part of the works which are in, over, under, or adjacent to any local highway or may affect any highway or any property of the local highway authority, during the carrying out of the works, and the undertaker must give to such officer reasonable facilities for such inspection.
(3) Any testing reasonably requested by the local highway authority of materials used in any works must be carried out at the undertaker’s expense and in accordance with the latest version of the Manual of Contract Documents for Highway Works (or any other testing specification agreed by the undertaker and the local highway authority acting reasonably).
(4) The local highway authority (and its contractor or its agent) may test (at the cost of the undertaker) all or any materials used or proposed to be used in any works and the undertaker must provide such information, access and materials as is reasonably necessary to facilitate such testing.
(5) The undertaker must, as soon as is reasonably practicable and in any event within 10 business days, provide the local highway authority with a copy of all available test certificates and results relevant to the works that the local highway authority has requested in writing under paragraph (3).
(6) The local highway authority must as soon as is reasonably practicable and in any event within 20 business days, provide the undertaker with a copy of all available test results and certificates relevant to the works carried out under paragraph (4) that the undertaker has requested in writing.
Road Safety Audits
131 (1) The undertaker must procure that an appropriately qualified RSA team (as defined in HPN039 or DMRB Volume 5 Section 2 Part 2 (GG 119) as advised by the local highway authority (acting reasonably) or any replacement or modification of that standard) undertakes road safety audit in accordance with the standard as set out in HPN039 or DMRB standard GG 119 as advised by the local highway authority (acting reasonably) for works which involve creation, alteration, expansion or other modifications of the local highway but not for works which consist only of trenchless installation beneath highways, and must provide copies of the reports of such audits to the local highway authority within 10 business days of their receipt by the undertaker.
(2) The local highway authority must be invited to participate in the road safety audit conducted under sub-paragraph (1).
(3) No works on a local highway must be commenced until a satisfactory Stage 1 and Stage 2 Road Safety Audit has been carried out and all reasonable recommendations raised by them or any exceptions are approved by the local highway authority (acting reasonably);
(4) Where the report of the stage 3 and 4 road safety audit identifies any recommended measures in respect of the local highway, the undertaker must carry out, at its own expense and to the reasonable satisfaction of the local highway authority, those measures identified as part of stage 3 and 4 audit which the undertaker considers necessary (acting reasonably) and for the avoidance of doubt any matters related to the health and safety will be considered as reasonable, and which do not give rise to any new or materially different environmental effects in comparison with those identified in the environmental statement.
Defects in local highways constructed by the undertaker
132 (1) Until such time as a final certificate has been issued in respect of any works, the undertaker must make good any defects in the works constructed by the undertaker to the reasonable satisfaction of the local highway authority.
(2) The undertaker must submit to the local highway authority such details and information relating to making good any defects under sub-paragraph (1) as the local highway authority and the undertaker agree is reasonable in the circumstances.
Provisional Certificate
133 (1) Subject to sub-paragraph (2), when the undertaker considers that the works have reached completion so that they are available and safe for use by the public it must serve a provisional certificate on the local highway authority and must allow the local highway authority the opportunity to inspect the works to identify any defects or incomplete works (and the undertaker must give proper consideration to any representations and recommendations made by the local highway authority and make good such defects pursuant to paragraph 132 or complete incomplete works).
(2) The undertaker must not serve a provisional certificate on the local highway authority under sub-paragraph (1) until either—
(a) a stage 3 road safety audit has been carried out in respect of the works in question in accordance with HNP039 or GG19 of DMRB as advised by the local highway authority (acting reasonably), and in the opinion of the local highway authority any reasonable recommended measures identified in the audit and which the local highway authority considers to be necessary, have been completed; or
(b) the local highway authority has been provided an opportunity to inspect the works and the undertaker has, in its opinion, completed any further works or measures required to address any safety deficiencies or defects identified as a result of the inspection.
(3) The local highway authority must issue to the undertaker, on request from the undertaker, a counter-signed provisional certificate in relation to any part of the works, after completion of that part of the works once a stage 3 safety audit has been carried out in accordance with sub-paragraph (2).
(4) The undertaker will agree with the local highway authority (such agreement not to be unreasonably withheld or delayed) the date of opening of the works to the public and take appropriate steps to officially record the same.
Maintenance
134 (1) Subject to sub-paragraph (2), the undertaker must maintain the works throughout the maintenance period to a standard appropriate to their use by the public in accordance with the DMRB.
(2) Nothing in sub-paragraph (1) makes the undertaker responsible for the maintenance of any street works or maintenance works undertaken by any person other than the undertaker or which does not form part of the authorised development during the maintenance period.
Final Certificate
135 (1) The local highway authority must as soon as reasonably practicable and in any event within 25 business days of the last of sub-paragraphs (a) to (f) of this paragraph being satisfied issue a final certificate in respect of the works where—
(a) the maintenance period has passed;
(b) all incomplete works and identified defects requiring remediation under sub-paragraph 132(1) have been remedied to the local highway authority’s reasonable satisfaction;
(c) the undertaker has given the local highway authority a reasonable opportunity to inspect the relevant works in readiness for the issue of a final certificate and has given due consideration and acted accordingly in respect of any representations and recommendations made by the local highway authority in respect of the works;
(d) the undertaker has provided the local highway authority with a health and safety file in respect of the relevant works conforming in all respects to the Construction (Design and Management) Regulations 2015 to the local highway authority’s reasonable satisfaction;
(e) the undertaker has provided the local highway authority with traffic signal information (in so far as is relevant);
(f) the undertaker has provided the local highway authority with street lighting information (in so far as is relevant);
(g) in relation to any permanent works only (which for the avoidance of doubt will exclude any maintenance of the street works or maintenance works)—
(i) the undertaker has provided the local highway authority with records of earthworks including source and description of fill material description of sub grades in cut areas and test results;
(ii) the undertaker has provided the local highway authority with the structural maintenance manual to include soil reports, records of materials tested and revised forms TA1 and design certificates;
(iii) the undertaker has provided the local highway authority with the appropriate maintenance manual or manuals;
(iv) the undertaker has provided the local highway authority with as built drawings and such detailed information as the local highway authority has requested (acting reasonably) in relation to the relevant works as built;
(v) where there are structures required as part of the works the undertaker has provided the local highway authority with the appropriate construction compliance certificate or certificates;
(vi) the undertaker has provided the local highway authority with a complete set of hard copies and a digital copy containing a complete set of as-built drawings for the whole of the Works showing (inter alia) undertakers’ plant and equipment, such drawings to be to such scale or scales as the local highway authority may reasonably require for the purpose of subsequent maintenance and further works;
(vii) the undertaker has provided the local highway authority with a plan showing edged red the land added to the local highway as public highway; and
(viii) any drains which the local highway authority considers should be constructed to dispose of soil and surface water drainage in connection with the relevant works and in order to make them appropriate for public use have been constructed.
(2) The issue of a final certificate by the local highway authority amounts to an acknowledgment by the relevant local highway authority that the construction, alteration or diversion of a highway has been completed to its reasonable satisfaction for the purposes of article 12 (construction and maintenance of new or altered highway) of this Order.
Emergency Work
136 Nothing in this Part of this Schedule prevents the local highway authority from carrying out any work or taking such action as deemed appropriate forthwith without prior notice to the undertaker in the event of an emergency or danger to the public.
Land interests
137 Following the issuing of the final certificate under paragraph 135 in respect of any part of the local highway, the undertaker must, if requested by the local highway authority, in respect of a local highway which is to be maintainable by the local highway authority following, and as a result of, the completion of those works execute and complete a transfer to the local highway authority at nil consideration and at the cost of the undertaker of any land and rights which have been compulsorily acquired or voluntarily acquired (following a written request by the local highway authority) under this Order and which are necessary for the maintenance and operation of a local highway.
Disputes
138 (1) In the event of any disagreement between the undertaker and the local highway authority arising out of or in connection with this Part of this Schedule which requires the agreement of the undertaker and the local highway authority jointly or the approval of the local highway authority and which cannot be resolved within 10 business days of the disagreement, either party may request a review of the issue in disagreement by the parties giving notice in writing to their senior representatives.
(2) The senior representatives will consider any such request and use all reasonable endeavours in good faith to reach agreement to resolve any disagreement.
(3) Where agreement is not reached by the senior representatives within 20 business days of a request being made under sub-paragraph (1), the disagreement may be determined by arbitration in accordance with article 47 (arbitration) of this Order.
PART 12 For the protection of Anglian Water
Application
139 For the protection of Anglian Water the following provisions have effect, unless otherwise agreed in writing between the undertaker and Anglian Water.
Interpretation
140 In this Part of this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in a manner no less efficient than previously;
“Anglian Water” means Anglian Water Services Limited (company number 02366656) whose registered office is at Lancaster House, Lancaster Way, Ermine Business Park, Huntington, Cambridgeshire, PE29 6XU;
“Anglian Water Property” means the Clacton-Holland Haven Water Recycling Centre, North side of Manor Way, Clacton on Sea, Essex, CO15 5TZ in the vicinity of Plot 01-002 and north of Plot 01-003;
“apparatus” means—
works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage;
any drain or works vested in Anglian Water under the Water Industry Act 1991;
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act;
any drainage system constructed for the purpose of reducing the volume of surface water entering any public sewer belonging to Anglian Water; and
includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus,
and for the purpose of this definition, where words are defined by section 219 of that Act, they must be taken to have the same meaning;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land; and
“plan” includes all sections, drawings, specifications and method statements.
Access
141 (1) Access for Anglian Water or any person acting under its instruction, including access for vehicles and plant, to the Anglian Water Property over Plot 01-002 and to any apparatus, utilities and services will not be extinguished or prevented and must not be unreasonably restricted or delayed by the undertaker during the construction, operation, maintenance or decommissioning of the Authorised Development in accordance with sub-paragraphs (2) and (3).
(2) Unreasonable delay or restriction in sub-paragraph (1) will not prevent the temporary restriction of access for other users (including access by the public) or the control or marshalling of access to facilitate the safe movement of large vehicles or plant or the carrying out of works to the access route by the undertaker, subject to the provisions of sub-paragraphs (2) and (3) of this paragraph.
(3) Where any part of the access to the Anglian Water Property is restricted or controlled by the undertaker, any physical measures must be agreed by Anglian Water (acting reasonably) prior to the implementation. The undertaker must provide access to the Anglian Water Property on request from Anglian Water or any person acting under its instruction and take steps (as soon as reasonably practicable) to allow access to and from the Anglian Water Property through or around that restriction or physical measure.
On street apparatus
142 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Anglian Water are regulated by the provisions of Part 3 of the 1991 Act.
Apparatus in stopped up streets
143 Regardless of the temporary restriction in use or diversion of any highway under the powers conferred by article 14 (temporary restriction of use of streets), Anglian Water is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.
Protective works to buildings
144 The undertaker, in the case of the powers conferred by article 20 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Anglian Water (such agreement not to be unreasonably withheld).
Acquisition of land
145 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement (such agreement not to be unreasonably withheld).
Removal of apparatus
146 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that Anglian Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Anglian Water to maintain that apparatus in that land must not be extinguished, until—
(a) alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Anglian Water in accordance with sub-paragraphs (2) to (8); and
(b) facilities and rights have been secured for that alternative apparatus in accordance with paragraph 147.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Anglian Water written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Anglian Water the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, Anglian Water must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(5) Anglian Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 47 (arbitration), and after the grant to Anglian Water of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if Anglian Water gives notice in writing to the undertaker that it desires the undertaker to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker or to the extent that Anglian Water fails to proceed with that work in accordance with sub-paragraph (5) or the undertaker and Anglian Water otherwise agree, that work, instead of being executed by Anglian Water, must be executed by the undertaker without unnecessary delay and to the reasonable satisfaction of Anglian Water.
(7) If Anglian Water fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved. For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which must remain the sole responsibility of Anglian Water or its contractors, unless these works are to be carried out by the undertaker in accordance with sub-paragraph (6).
(8) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker must, before taking or requiring any further step in such substitution works, use best endeavours to comply with Anglian Water’s reasonable requests for a reasonable period of time to enable Anglian Water to—
(a) make network contingency arrangements; or
(b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.
Facilities and rights for alternative apparatus
147 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Anglian Water facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and Anglian Water or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to Anglian Water than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to Anglian Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
(3) Such facilities and rights as are set out in this paragraph are deemed to include any statutory permits granted to Anglian Water in respect of the apparatus in question, whether under the 2016 Regulations or other legislation.
Retained apparatus
148 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus (or any means of access to it) the removal of which has not been required by the undertaker under sub-paragraph (2), the undertaker must submit to Anglian Water a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Anglian Water is entitled to watch and inspect the execution of those works.
(3) Any requirements made by Anglian Water under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) is submitted to it.
(4) If Anglian Water in accordance with sub-paragraph (2) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 139 to 141 and 144 to146 apply as if the removal of the apparatus had been required by the undertaker under paragraph 146(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to Anglian Water notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances, using its reasonable endeavours to keep the impact of those emergency works on Anglian Water’s apparatus, on the operation of its water and sewerage network and on end-users of the services Anglian Water provides to a minimum.
(7) For the purposes of sub-paragraph (1) and without prejudice to the generality of the principles set out in that sub-paragraph, works are deemed to be in land near Anglian Water’s apparatus (where it is a pipe) if those works fall within the following distances measured from the medial line of such apparatus—
(a) 4 metres where the diameter of the pipe is less than 250 millimetres;
(b) 5 metres where the diameter of the pipe is between 250 and 400 millimetres; and
(c) 6 meters where the diameter of the pipe exceeds 400 millimetres.
Expenses and costs
149 (1) Subject to the following provisions of this paragraph, the undertaker must repay to Anglian Water all expenses reasonably incurred by Anglian Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule but always excluding any consequential loss or indirect loss suffered by Anglian Water.
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 47 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to Anglian Water by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to Anglian Water in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Anglian Water any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
150 (1) Subject to the following provisions of this paragraph, if by reason or in consequence of the construction of any such works referred to in sub-paragraphs 146(1) or 146(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—
(a) bear and pay the cost reasonably incurred by Anglian Water, accompanied by an invoice or claim from Anglian Water, in making good such damage or restoring the supply; and
(b) make reasonable compensation to Anglian Water for any other expenses, loss, damages, penalty or costs incurred by Anglian Water,
by reason or in consequence of any such damage or interruption but always excluding any consequential loss or indirect loss arising from such damage or interruption.
(2) The fact that any act or thing may have been done by Anglian Water on behalf of the undertaker or in accordance with a plan approved by Anglian Water or in accordance with any requirement of Anglian Water or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Anglian Water fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the unlawful or unreasonable act, neglect or default of Anglian Water, its officers, servants, contractors or agents.
(4) Anglian Water must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made, without the consent of the undertaker (such consent not to be unreasonably withheld or delayed) who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(5) Anglian Water must use reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the undertaker must bear and pay the costs for.
(6) The total amount which would be payable to Anglian Water arising out of or in connection with this Part of this Schedule in relation to any costs, compensation, expenses, losses, damages, penalties or any other liabilities is subject to the total liability cap of £30,000,000 (thirty million pounds).
Cooperation
151 For the avoidance of doubt whenever Anglian Water’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.
152 Where in consequence of the proposed construction of any of the authorised development, the undertaker or Anglian Water requires the removal of apparatus under paragraph 146(2) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph 148, the undertaker must use all reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Anglian Water’s undertaking, using existing processes where requested by Anglian Water, provided it is appropriate to do so, and Anglian Water must use all reasonable endeavours to co-operate with the undertaker for that purpose.
153 Where the undertaker identifies any apparatus which may belong to or be maintainable by Anglian Water but which does not appear on any statutory map kept for the purpose by Anglian Water, it must inform Anglian Water of the existence and location of the apparatus as soon as reasonably practicable.
154 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Anglian Water in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
155 The undertaker and Anglian Water may by written agreement substitute any period of time for those periods set out in this Part of this Schedule.
PART 13 For the protection of Affinity Water
Application
156 The following provisions have effect for the protection of Affinity Water, unless otherwise agreed in writing between the undertaker and Affinity Water.
Interpretation
157 In this Part of this Schedule—
“Affinity Water” means Affinity Water Limited (Company Registration No. 02546950) whose registered office address is at Tamblin Way, Hatfield, Hertfordshire, AL10 9EZ or any wholly-owned subsidiary (as defined in section 1159 of the Companies Act 2006);
“alternative apparatus” means alternative apparatus adequate to enable Affinity Water to fulfil its statutory functions in a manner no less efficient than previously;
“Affinity Water’s apparatus” means—
mains, pipes, connections, reservoirs, or any other apparatus belonging to or maintained by Affinity Water for the purposes of water supply; and
mains, pipes, connections or any other apparatus that is the subject of an agreement to adopt by Affinity Water made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991;
“authorised works” means “authorised development” and “ancillary works” as both are defined in article 2 (interpretation) of the Order together with the use and maintenance of such authorised development or ancillary works, which for the avoidance of doubt includes the construction, use and maintenance of any works pursuant to this Part of this Schedule;
“commence” and “commencement” includes the first carrying out of any below ground surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground condition, the receipt and erection of construction plant and equipment, intrusive investigations for the purpose of assessing ground conditions, and the first implementation of environmental mitigation, including planting;
“functions” includes powers and duties;
“HAUC Advice Note” means HAUC Advice Note No 2010/01 (available at https://static.hauc-uk.org.uk/downloads/Advice_Note_No_2010-01.pdf), including the Diversionary Works Calculator HAUC(UK) (hauc-uk.org.uk) (https://www.hauc-uk.org.uk/resources/diversionary-works-calculator) referred to at paragraph 29.4 of that advice note;
“in”, in a context referring to Affinity Water’s apparatus or alternative apparatus in land, includes a reference to Affinity Water’s apparatus or alternative apparatus under, over or upon land;
“plan” includes all descriptions, designs, sections, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;
“protective works” means the underpinning, strengthening and any other reasonable works the purpose of which is to prevent damage that may be caused to Affinity Water’s apparatus by the carrying out, maintenance, construction or use of the authorised works;
“specified works” means any authorised works under the Order (including any works of maintenance) that—
may in any way adversely affect any easement or other property interest held or used by Affinity Water;
are within the following distances of Affinity Water’s apparatus measured from the outer surface of such apparatus, the removal of which has not been required by the undertaker under paragraph 163(2) or otherwise—
where the apparatus is a pipe, 2 metres where the diameter of the pipe is less than 150 millimetres;
where the apparatus is a pipe, 3 metres where the diameter of the pipe is between 150 and 450 millimetres;
where the apparatus is a pipe, 4 metres where the diameter of the pipe exceeds 450 millimetres; and
4 metres of any other apparatus,
unless otherwise agreed in writing with Affinity Water (acting reasonably); and
outside the distances referred to in (b) that will or may have electromagnetic or high voltage effects on any of Affinity Water’s apparatus, the removal of which has not been required by the undertaker under paragraph 162(2) or otherwise; and
“water main” has the meaning given in the Water Industry Act 1991.
On street apparatus
158 Except for paragraphs 159 (apparatus in stopped up streets), 164 (specified works), 165 (expenses and costs) and 166 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights of Affinity Water or of Affinity Water’s apparatus, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Affinity Water are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus in stopped up streets
159 Regardless of the temporary stopping up, alteration, diversion or restriction of use of any street under the powers conferred by article 14 (temporary restriction of use of streets), Affinity Water is at liberty at all times to take all necessary access across any such stopped up street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any of Affinity Water’s apparatus which at the time of the stopping up or diversion was in that street.
Protective works to buildings
160 The undertaker, in the case of the exercise of the powers conferred by article 20 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to, any apparatus (including access required for maintenance) to, or maintenance of, any of Affinity Water’s apparatus unless otherwise agreed in writing with Affinity Water, such agreement not to be unreasonably withheld.
Acquisition of land
161 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker must not—
(a) appropriate or acquire any interest in land held by Affinity Water or take temporary possession of any of Affinity Water’s apparatus; or
(b) appropriate, acquire, extinguish, interfere with or override any easement or other interest or right of which Affinity Water or Affinity Water’s apparatus has the benefit otherwise than with prior written consent of Affinity Water. Such consent may be subject to such conditions as Affinity Water may reasonably require and such conditions may include (but not be limited to) provisions to ensure the creation, grant or transfer of such alternative easements, interests or rights for the benefit of Affinity Water’s apparatus (including any alternative apparatus) as Affinity Water may require; and
(2) where Affinity Water’s apparatus is to remain in, on, under or over any authorised works or property of the undertaker that are to be present as a result of any appropriation, acquisition, extinguishment, interference or overriding within subparagraph 161(1)(b), reasonable provisions in respect of the necessary consent by the undertaker that might otherwise be required from the undertaker under Schedule 13 to the Water Industry Act 1991 in respect of any interference to such authorised works or property of the undertaker resulting from the carrying out of any works or the exercise of any other powers by Affinity Water in respect of such of Affinity Water’s apparatus. The reasonable provisions in sub-paragraph (1)(b)(ii) may include requirements for the undertaker and Affinity Water to determine no later than the date of completion of the authorised works, works or exercise of powers or categories of works or exercise of powers the carrying out or exercise of which by Affinity Water is capable of being consented to in advance by the undertaker. In respect of such works or powers that are capable of being consented to in advance by the undertaker, that advance consent under Schedule 13 of the Water Industry Act 1991 will be given by the undertaker on completion of the authorised works. In respect of those works or powers the carrying out or exercise of which by Affinity Water is not capable of being consented to in advance, the reasonable provisions will set out a process for the giving of consent under Schedule 13 within specified expedited timescales (such timescales to be agreed between the undertaker and Affinity Water acting reasonably) following any request for such consent by Affinity Water.
Removal of apparatus
162 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any of Affinity Water’s apparatus is placed or over which any access to any of Affinity Water’s apparatus is enjoyed and requires that Affinity Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Affinity Water to maintain that apparatus in that land and to gain access to it must not be extinguished, until—
(a) alternative apparatus has been constructed and is in operation, and access to it has been granted to the reasonable satisfaction of Affinity Water in accordance with sub-paragraphs (2) to (9); and
(b) facilities and rights have been secured for that alternative apparatus in accordance with paragraph 163 (facilities and rights for alternative apparatus).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any of Affinity Water’s apparatus placed in that land, the undertaker must give to Affinity Water 56 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed. In that case (or where, in consequence of the exercise of any of the powers conferred by this Order, Affinity Water reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Affinity Water, in so far as the undertaker has the ability to reasonably grant or transfer them, the necessary facilities and rights and consents, and the benefit of any statutory permits granted to the undertaker in respect of the apparatus in question (whether under the 2016 Regulations or other legislation), for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus. Such rights and consents will include reasonable provisions in respect of the necessary consent by the undertaker that might otherwise be required from the undertaker under Schedule 13 to the Water Industry Act 1991 in respect of any interference to the undertaker’s authorised works or property resulting from the carrying out of any works or the exercise of any other powers by Affinity Water in respect of the alternative apparatus.
(3) The reasonable provisions in sub-paragraph (2) may include requirements for the undertaker and Affinity Water to determine no later than the date of completion of the authorised works, works or exercise of powers or categories of works or exercise of powers the carrying out or exercise of which by Affinity Water is capable of being consented to in advance by the undertaker. In respect of such works or powers that are capable of being consented to in advance by the undertaker, that advance consent under Schedule 13 to the Water Industry Act 1991 will be given by the undertaker on completion of the authorised works. In respect of those works or powers the carrying out or exercise of which by Affinity Water is not capable of being consented to in advance, the reasonable provisions will set out a process for the giving of the consent under Schedule 13 within specified expedited timescales (such timescales to be agreed between the undertaker and Affinity Water acting reasonably) following any request for such consent by Affinity Water.
(4) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, or the benefit of any statutory permits granted to the undertaker, Affinity Water will, on receipt of a written notice to that effect from the undertaker, as soon as reasonably practicable use its reasonable endeavours to obtain the necessary facilities and rights and consents in the land in which the alternative apparatus is to be constructed, and any required statutory permits.
(5) Affinity Water will have an absolute discretion whether or not to use or seek any powers of compulsory acquisition that may be available to Affinity Water for the purposes of sub-paragraph (3).
(6) Any alternative apparatus to be constructed in land of, or land secured by, the undertaker under this Part of this Schedule must be constructed in such manner and in accordance with such plans as may be agreed between Affinity Water and the undertaker or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(7) Affinity Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 47 (arbitration), and subject to any written diversion agreement having been entered into between the parties and after the grant to Affinity Water of any such facilities and rights or statutory permits as are referred to in sub-paragraphs (2) or (3), proceed in accordance with a programme that has been agreed or settled by arbitration in accordance with article 47 (arbitration) to construct and bring into operation the alternative apparatus and subsequently to remove any of Affinity Water’s apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(8) Regardless of anything in sub-paragraph (7) if the undertaker gives notice to Affinity Water in writing that the undertaker desires itself to execute any work, or part of any work, in connection with the construction or removal of Affinity Water’s apparatus in any land of the undertaker, that work, instead of being executed by Affinity Water, may be executed by the undertaker, with the prior written consent of Affinity Water (which must not be unreasonably withheld or delayed and is to be subject to any conditions as are reasonable and proper to protect Affinity Water’s apparatus) in accordance with plans and in a position agreed between Affinity Water and the undertaker, or in default of agreement determined by arbitration in accordance with article 47 (arbitration), without unnecessary delay under the superintendence, if given, and to the reasonable approval of Affinity Water.
(8A) Following such approval given in writing by Affinity Water, any alternative apparatus will be deemed to be adopted by Affinity Water as though it had been adopted under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991 on the date 28 days after the giving of such approval or such later date as is agreed in writing between Affinity Water and the undertaker.
(9) If Affinity Water fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then the undertaker shall have recourse to arbitration in accordance with article 47 (arbitration).
(10) In carrying out any work under sub-paragraph (8), the undertaker must comply with all statutory obligations which would have been applicable had the works been carried out by Affinity Water.
(11) Nothing in sub-paragraph (8) authorises the undertaker to—
(a) execute any work of connection to, or disconnection from, Affinity Water’s operational network;
(b) execute the placing, installation, bedding, packing, removal, connection or disconnection of any of Affinity Water’s apparatus, or execute any excavation and filling around any of Affinity Water’s apparatus (where the apparatus is laid in a trench) within 600 millimetres of any apparatus to be retained in situ; or
(c) carry out any works in relation to any water mains.
(12) Whenever alternative apparatus is to be or is being substituted for existing Affinity Water’s apparatus, the undertaker must, before taking any steps which will trigger the need for those substitution works, use all reasonable endeavours to comply with Affinity Water’s reasonable requests for a reasonable period of time to enable Affinity Water to—
(a) make network contingency arrangements; or
(b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.
Facilities and rights for alternative apparatus
163 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Affinity Water facilities and rights for the construction, use, maintenance and protection of alternative apparatus in substitution for Affinity Water’s apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Affinity Water and must be no less favourable on the whole to Affinity Water than the facilities and rights enjoyed by it in respect of Affinity Water’s apparatus to be removed unless otherwise agreed by Affinity Water or in default of agreement settled by expert determination in accordance with paragraph 168 (expert determination) unless otherwise agreed in writing by the parties.
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, any expert will—
(a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised works and for securing any subsequent alterations or adaptions of the alternative apparatus which may be required to prevent interference with the proposed works of the undertaker; and
(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to Affinity Water’s apparatus for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the expert less favourable on the whole to Affinity Water than the facilities and rights enjoyed by it in respect of Affinity Water’s apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the expert must make such provision for the payment of compensation by the undertaker to Affinity Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Specified works
164 (1) Not less than 56 days before commencement of any specified works, the undertaker must submit to Affinity Water a plan in respect of the specified works to be executed.
(2) The plan must provide details of—
(a) the exact position, including level, of the specified works and of all Affinity Water’s apparatus;
(b) a method statement describing the manner of their construction or renewal including details of excavation and positioning of plant;
(c) detailed drawings showing every alteration proposed to be made to or close to any such apparatus;
(d) all expected physical impacts (including but not limited to electromagnetic or high voltage effects) that the construction, maintenance or operation of the specified works may have on any of Affinity Water’s apparatus,
the removal of which has not been required by the undertaker under paragraph 162(2) or otherwise; and
(e) any intended maintenance regimes.
(3) The undertaker must not commence any specified works until the plan has been approved by Affinity Water.
(4) Any approval of Affinity Water given under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5)(a); and
(b) must not be unreasonably withheld or delayed.
(5) Affinity Water may require—
(a) such modifications to be made to the plan as may be reasonably necessary for the purpose of securing Affinity Water’s apparatus against interference or risk of damage or for the provision of protective works or for the purpose of providing or securing reasonable means of access to Affinity Water’s apparatus; and
(b) the undertaker to re-submit the plan as modified, for approval to Affinity Water, and Affinity Water must advise the undertaker within 14 days of submission of the revised plan whether it is approved.
(6) Affinity Water may as part of giving its approval under sub-paragraph (3) require that any part of specified works comprising of the matters listed below is carried out by Affinity Water, not the undertaker and in which case Affinity Water must proceed with such part of the specified works in accordance with a programme that has been agreed or settled by arbitration in accordance with article 47 (arbitration)—
(a) the placing, installation, bedding, packing, removal, connection or disconnection of any of Affinity Water’s apparatus, or execute any excavation and filling around any of Affinity Water’s apparatus (where the apparatus is laid in a trench) within 600 millimetres of any apparatus to be retained in situ; or
(b) any works in relation to any water mains. If the revised plan is not approved within 14 days, the undertaker may require a meeting to be held between the chief engineers of the undertaker and Affinity Water to agree the plan.
(7) If the undertaker and Affinity Water fail to reach an agreement on the plan, the dispute shall be settled by arbitration in accordance with article 47 (arbitration).
(8) Specified works must only be executed in accordance with—
(a) the plan submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and Affinity Water or as otherwise settled by arbitration under sub-paragraph (7); and
(b) all conditions imposed under sub-paragraph (4)(a),
and Affinity Water will be entitled to supervise and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation.
(9) Where Affinity Water requires (acting reasonably) any protective works to be carried out by itself or by the undertaker to ensure the safety of Affinity Water’s apparatus (whether of a temporary or permanent nature), Affinity Water must specify what these protective works are, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph. The protective works must be carried out to Affinity Water’s reasonable satisfaction prior to the commencement of any specified works for which protective works are required and Affinity Water must give notice of its requirement (in writing) for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency) and in that written notice Affinity Water must specify what the protective works are and how these ensure the safety of Affinity Water’s apparatus (Affinity Water acting reasonably) .
(10) If Affinity Water in accordance with this paragraph 164 and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 156 to 158, 162 and 163apply as if the removal of the apparatus had been required by the undertaker under paragraph 162(2).
(11) Nothing in this paragraph precludes the undertaker from submitting a new plan instead of the plan previously submitted, and the provisions of this paragraph apply to and in respect of the new plan provided that—
(a) where the new plan is materially different from the plan previously submitted, this new plan shall be submitted at least 56 days before commencing the execution of any works; and
(b) where the new plan is not materially different from the plan previously submitted, this new plan shall be submitted at least 28 days before commencing the execution of any works,
unless otherwise agreed with Affinity Water acting reasonably.
(12) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency works, but in that case must give to Affinity Water notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with reasonable requirements of Affinity Water in so far as is reasonably practicable in the circumstances.
(13) In this paragraph, “emergency works” means works which, at the time when they are executed are required in order to put an end to, or to prevent the occurrence of, existing or imminent circumstances (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.
(14) Nothing in sub-paragraph (11) authorises the undertaker to carry out the works comprising of the matters listed in sub-paragraph (6) and should any such works need to be undertaken they will be undertaken by Affinity Water and in which case Affinity Water must proceed with such part of the specified works in accordance with a programme that has been agreed or settled by arbitration in accordance with article 47 (arbitration).
(15) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works the undertaker shall implement an appropriate ground mitigation scheme save that Affinity Water retains the right to carry out any further necessary protective works for the safeguarding of Affinity Water’s apparatus and can recover any such costs in line with paragraph 165 (expenses and costs).
Expenses and costs
165 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Affinity Water within 30 days of receipt of an itemised invoice or claim from Affinity Water all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by Affinity Water but excluding any consequential loss or indirect loss in, or in connection with—
(a) the supervision, inspection, removal, relaying, replacing, alteration or protection of any of Affinity Water’s apparatus or the supervision, inspection, adoption and construction of any new apparatus or alternative apparatus which may be required in connection with the authorised works; and
(b) the consideration and approval of any plan as required by this Part of this Schedule.
(2) The costs as referred to in sub-paragraphs (1)(a) and 1(b) are to include but not be limited to—
(a) any costs reasonably incurred by or compensation properly paid by Affinity Water in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by Affinity Water as a consequence of Affinity Water—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 163(3); or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting Affinity Water;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;
(c) the cutting off of any of Affinity Water’s apparatus from Affinity Water’s any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works as referred to in this Part of this Schedule;
(g) any costs reasonably necessary in consequence of the execution of any such works as are referred to in this Part of this Schedule; and
(h) any costs incurred as a result of any penalties or fines imposed on Affinity Water by any regulator directly resulting from the execution of or failure to execute in accordance with this Part of this Schedule any such works as are referred to in this Part of this Schedule.
(3) The value of any of Affinity Water’s apparatus that is removed and re-used by Affinity Water, or any value recovered by Affinity Water from the scrapping of any apparatus removed and not re-used, under the provisions of this Part of this Schedule must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.
(4) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed by Affinity Water in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed by Affinity Water at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 47 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to Affinity Water by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(5) For the purposes of sub-paragraph (4)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus;
(b) where it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or to place it at the existing depth, the capacity, dimensions and depth of the apparatus is to be treated as if it has been agreed or so determined; and
(c) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of an inspection chamber is to be treated as if it also had been agreed or had been so determined.
(6) An amount which apart from this sub-paragraph would be payable to Affinity Water in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Affinity Water any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(7) The amount of the reduction under sub-paragraph (6) must be calculated using the methodology set out in paragraph 29 of HAUC Advice Note and—
(a) the 1991 Act and any regulations made under that Act (including the cost-sharing regulations made under section 85 (Sharing of cost of necessary measures) of that Act); and
(b) any other codes of practice or guidance issued under the 1991 Act or regulations made under that Act,
do not apply in respect of any such calculation under sub-paragraph (6).
(8) In relation to any anticipated costs to be payable by the undertaker to Affinity Water pursuant to paragraph 165(1) Affinity Water must provide the undertaker, on receipt of a request from the undertaker, with a schedule showing its estimate and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this paragraph 165.
(9) Affinity Water must give the undertaker a final account of the costs in relation to which a schedule has been provided under sub-paragraph (8) and within 30 days of the issue of the final account—
(a) if the final account shows a further sum as due to Affinity Water the undertaker must pay to Affinity Water the sum shown due to it; and
(b) if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by Affinity Water, Affinity Water must refund the difference to the undertaker.
(10) Where the undertaker does not agree that an estimate provided by Affinity Water under sub-paragraph (8) is reasonable, the undertaker must notify Affinity Water of that within 15 days of receiving the schedule of estimate. The undertaker and Affinity Water will escalate the estimate internally and will each nominate a senior officer to attend a discussion on the estimate. Where the parties fail to reach agreement following such discussion, any difference or dispute over reasonableness of any excess sum shall be determined by expert determination in accordance with paragraph 168.
Indemnity
166 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, operation or maintenance of any of the authorised works or any such works referred to in paragraphs 161(1) or 161(2), or by reason of any subsidence resulting from the authorised works or such development or works, any damage is caused to any of Affinity Water’s apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal pursuant to paragraph 162 or property of Affinity Water, or there is any interruption in any service provided, or in the supply of any goods, by Affinity Water, or, Affinity Water becomes liable to pay any amount to any third party incurred in accordance with the provisions of this paragraph, the undertaker must—
(a) bear and pay the cost reasonably incurred by Affinity Water, accompanied by an invoice, in making good such damage, restoring the supply or ensuring the continuity of supply; and
(b) indemnify Affinity Water against all liabilities, claims, demands, losses (excluding any loss of profit), damages, proceedings, penalties, fines, levies, surcharges or costs which may be made or taken against or recovered from or incurred by Affinity Water,
by reason or in consequence of any such damage or interruption.
(2) The fact that any act or thing may have been done by Affinity Water on behalf of the undertaker or in accordance with a plan approved by Affinity Water under paragraph 164 or in accordance with any requirement of Affinity Water or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Affinity Water fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of any damage or interruption to the extent that it is attributable to the unlawful act, neglect or default of Affinity Water, its officers, servants, contractors or agents.
(4) Affinity Water must give the undertaker reasonable notice of any such claim or demand and, unless payment is required in connection with a statutory compensation scheme, no settlement or compromise is to be made without first consulting the undertaker and considering their representations.
(5) Affinity Water must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.
(6) Affinity Water must use reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under this paragraph applies where it is within Affinity Water’s reasonable ability and control to do so but those endeavours expressly exclude any obligation to mitigate liability arising from third parties which is outside of Affinity Water’s control. If reasonably requested to do so by the undertaker Affinity Water must provide an explanation of how the claim has been mitigated, where relevant.
Cooperation
167 (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Affinity Water requires the removal of Affinity Water’s apparatus under paragraph 162(2) or Affinity Water makes requirements for the protection or alteration of Affinity Water’s apparatus under paragraph 163, the undertaker must use all reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of Affinity Water’s undertaking, using existing processes where requested by Affinity Water, provided it is appropriate to do so, and Affinity Water must use all reasonable endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Affinity Water’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.
(3) Where the undertaker identifies any apparatus which may belong to or be maintainable by Affinity Water but which has not previously been indicated by Affinity Water as being apparatus belonging to it, the undertaker shall inform Affinity Water of the existence and location of the apparatus as soon as reasonably practicable. If Affinity Water confirms that it owns or maintains the apparatus, that apparatus shall then be afforded the same protection under this Part of this Schedule as other apparatus belonging to Affinity Water.
(4) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Affinity Water in respect of any of Affinity Water’s apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
(5) The undertaker and Affinity Water may by written agreement substitute any periods of time set out in this Part of this Schedule for any other period of time.
Expert Determination
168 (1) Article 47 (arbitration) of the Order does not apply to paragraph 163 (facilities and rights for alternative apparatus) of this Part of this Schedule.
(2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.
(3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute.
(4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed. The expert must—
(a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment;
(b) permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission;
(c) issue a decision within 7 days of receipt of the submissions under sub-paragraph (b); and
(d) give reasons for the decision.
(5) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47 (arbitration).
(6) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.
Access
169 If in consequence of any agreement reached in accordance with paragraph 161 or of the exercise of the powers conferred by this Order, the access to any of Affinity Water’s apparatus is materially obstructed, the undertaker must at all times provide such alternative rights and means of access to such apparatus as will enable Affinity Water to maintain or use Affinity Water’s apparatus no less effectively than was possible before such obstruction.
PART 14 For the protection of National Grid Electricity Transmission
Application
170 The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and National Grid.
Interpretation
171 In this Part—
“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by National Grid together with any replacement apparatus, and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“EACN Substation Area” means the land shown in the lands plans as plots 17-031, 18-001 and 18-002, within which National Grid intends to construct the New National Grid Substation;
“Incentive Deduction” means any incentive deduction National Grid Electricity Transmission Plc receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised development;
“New National Grid Substation” means the substation to be constructed by National Grid within the EACN Substation Area as part of the NTT project, and into which the undertaker will connect as part of the authorised development;
“New National Grid Substation Boundary” means the area forming the new National Grid substation located within the EACN Substation Area, which lies or will lie within the final fenceline of that substation site and within which the connection agreement between the undertaker and National Grid Electricity System Operator applies;
“NTT project” means the Norwich to Tilbury Grid reinforcement project, for which National Grid intends to submit a Development Consent Order application;
“Specified Works” means any of the onshore works or activities undertaken in association with the onshore works which—
will or may be situated over, or within 15 metres measured in any direction of any apparatus; and/or
may in any way adversely affect any apparatus; and/or
includes any of the activities that are referred to in development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”;
“STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and NGESO as modified from time to time;
“STC Claims” means any claim made under the STC against National Grid Electricity Transmission Plc arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid Electricity Transmission Plc’s transmission system which arises as a result of the authorised works; and
“Transmission Owner” means as defined in the STC.
Compulsory acquisition of land and rights
172 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in land or any apparatus or override any easement or other interest of National Grid otherwise than by agreement, such agreement not to be unreasonably withheld or delayed.
173 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in the part or parts of plots 17-031, 18-001 and 18-002 which is or will be within the New National Grid Substation Boundary, provided that notification of the final location of that substation is received from National Grid prior to the exercise of any power to compulsorily acquire rights over plots 17-031, 18-001 and 18-002 being exercised.
174 Where the undertaker acquires any right in land that is subsequently notified to the undertaker as being within the New National Grid Substation Boundary, the undertaker may not exercise, rely on such right within that boundary unless otherwise agreed.
175 (1) Subject to sub-paragraph (2), the undertaker must not permanently acquire any interest in plots 17-031, 18-001 and 18-002 until the design of the New National Grid Substation has been finalised, and the final location of the undertaker’s connection bay has been identified and notified to the undertaker, and the extent of land rights necessary for the connection (cable route location and extent of access rights and easement) has been agreed with National Grid.
(2) Where, before the design of the New National Grid Substation has been finalised and the final location of the undertaker’s connection bay has been identified and notified to the undertaker—
(a) it is reasonably necessary to maintain the undertaker’s construction programme; or
(b) the expiry of temporary possession powers in plots 17-031, 18-001 and 18-002 means that it is necessary for the undertaker to acquire permanent land rights in plots 17-031, 18-001 and 18-002,
then the undertaker may—
(c) exercise powers under this Order to compulsorily acquire the necessary rights for the cables and access thereto over all of plots 17-031, 18-001 and 18-002.
176 In so far as National Grid has acquired an interest in plots 17-001, 18-001 and 18-002 and/or is in occupation of any part of those plots, the undertaker may not exercise Temporary Possession Powers over plots 17-001, 18-001 and 18-002 without the prior agreement of National Grid to such exercise being obtained, which consent must not be unreasonably withheld or delayed.
Protection of National Grid apparatus
177 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker may not, under the powers of this Order, adjust, remove, alter, divert or interfere with any apparatus owned by National Grid (including any future electric transmission infrastructure in the vicinity of the Order Land which National Grid may require to discharge its statutory duties) otherwise than by agreement.
(2) The undertaker will not seek to acquire or exercise any rights to remove any National Grid apparatus under compulsory powers granted by this Order, including but not limited to the power to—
install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers)
;
without the prior written consent of National Grid to any such acquisition or exercise being obtained.
178 National Grid’s rights, including without limitation rights to retain, access and maintain its apparatus and any future apparatus where that apparatus is located in the vicinity of the Order Land, which National Grid may require to discharge its statutory duties, will not be impeded throughout any period of temporary possession or survey works authorised by this Order. In exercising such rights within any area of which the undertaker is in temporary possession, National Grid will have reasonable regard to any request by the undertaker which the undertaker advises National Grid is necessary to comply with health and safety obligations and/or any requirement under the Construction (Design and Management) Regulations 2015 as to how National Grid exercises such rights and carries out any works.
Works in the EACN Substation Area
179 At all times after National Grid has commenced construction and when the undertaker is—
(a) working within plots 17-001, 18-001 and 18-002; and
(b) within any area within the ownership or control of National Grid; and/or
(c) are carrying out any Specified Works; but
(d) (excepting any works which are works regulated by the connection agreement between the undertaker and National Grid Energy Systems Operator (or a successor thereto) and carried out within the New National Grid Substation Boundary which will be governed solely by that agreement and not this Part of this Schedule,
to comply with paragraphs 183 and 183 of this Part of this Schedule.
180 (1) Not less than 56 days before the commencement of any works to which paragraph 179 applies, the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity assets.
(2) In relation to works to which paragraph 1790 applies, the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe (in so far as is relevant to those works)—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation and positioning of plant;
(d) the position of all apparatus;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;
(f) any intended maintenance regimes;
(g) an assessment of risks of rise of earth issues; and
(h) a ground monitoring scheme, where required.
(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—
(a) details of any cable trench design including route, dimensions and clearance to pylon foundations;
(b) demonstration that pylon foundations will not be affected prior to, during and post construction;
(c) details of load bearing capacities of trenches;
(d) details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;
(e) a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;
(f) written details of the operations and maintenance regime for any cable, including frequency and method of access;
(g) assessment of earth rise potential if reasonably required by National Grid Electricity Transmission Plc’s engineers; and
(h) evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to and including 26 tonnes in weight.
(4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted.
(5) Any approval of National Grid required under sub-paragraph (4)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and
(b) must not be unreasonably withheld.
(6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(7) Works executed under sub-paragraphs (2) or (3) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.
(8) Where National Grid requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid’s reasonable satisfaction prior to the commencement of the work(s) for which protective works are required and National Grid shall give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(9) If National Grid in accordance with sub-paragraphs (6) or (8) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (6) to (8) apply as if the removal of the apparatus had been required by the undertaker.
(10) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the works to which paragraph 179 applies, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.
(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act, but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances and comply with sub-paragraph (12) at all times.
(12) At all times when carrying out any works to which paragraph 179 applies, the undertaker must comply with National Grid Electricity Transmission Plc’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.
Indemnity
181 (1) Where paragraph 179 applies, the undertaker must comply with the following indemnity provision—
(2) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction use or maintenance or failure of any works to which paragraph 179 applies by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and
(b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party and including STC Claims or an Incentive Deduction other than arising from any default of National Grid.
(3) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (4) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(4) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents;
(b) any works to which paragraph 179 applies and/or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article 7 (benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any works to which paragraph 179 applies yet to be executed and not falling within this sub-paragraph (4)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 181; and/or
(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.
(5) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.
(6) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.
(7) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.
182 Any dispute arising between the undertaker and National Grid under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 47 (arbitration).
PART 15 For the protection of Cadent Gas Limited
Application
183 For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect.
Interpretation
184 In this Part of this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“apparatus” means any gas mains, pipelines, pipes, pressure governors, ventilators, cathodic protection (including transformed rectifiers and any associated groundbeds or cables), cables, marker posts, block valves, hydrogen above ground installations or other apparatus belonging to, or maintained by, Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2 (interpretation) of the Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;
“Cadent” means Cadent Gas Limited and includes its successors in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;
“Cadent’s undertaking” means the rights, duties and obligations of Cadent Gas Limited as a public gas transporter within the meaning of section 7 of the Gas Act 1986 (as amended by the Gas Act 1995);
“commence” and “commencement” include any below ground surveys, intrusive monitoring or work operations, remedial work in respect of any contamination or other adverse ground condition;
“facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, will require the undertaker to submit for Cadent’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” will include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Cadent including retain, lay, construct, inspect, maintain, protect, use, access, enlarge, replace, renew, remove, decommission or render unusable or remove the apparatus;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary, proper and sufficient to describe and assess the works to be executed;
“rights” includes rights and restrictive covenants and, in relation to decommissioned apparatus, the surrender of rights, release of liabilities and transfer of decommissioned apparatus;
“specified works” means any of the authorised works or activities (including maintenance) undertaken in association with the authorised works which—
will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under sub-paragraph 189(2) or otherwise;
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 189(2) or otherwise; or
include any of the activities that are referred to in CD/SP/SSW/22 Cadent’s policies for safe working in proximity to gas apparatus Specification for safe working in the vicinity of Cadent Assets; and
“undertaker” means the undertaker as defined in article 2 (interpretation) of this Order.
On Street apparatus
185 (1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 of the 1991 Act, except for—
(a) paragraphs 186, 191, 192 and 193; and
(b) where sub-paragraph (2) applies, paragraphs 189 and 190.
(2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.
(3) Notwithstanding article 11 (application of the 1991 Act) or any other powers in the Order generally, section 85 of the 1991 Act in relation to cost sharing and the regulations made thereunder will not apply in relation to any diversion of apparatus of Cadent under the 1991 Act.
Access to Apparatus
186 Notwithstanding the temporary restriction of use of any street under the powers of article 14 (temporary restriction of use of streets), Cadent will be at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as it would have been entitled to do immediately before such temporary alteration, diversion or restriction in respect of any apparatus which at the time of the stopping up or diversion was in that street.
Protective works to buildings
187 (1) The undertaker, in the case of the powers conferred by article 20 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent (which must not be unreasonably withheld) and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of Cadent or any interruption in the supply of gas by Cadent, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and, subject to sub-paragraph (2), will pay compensation to Cadent for any loss sustained by it.
(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of Cadent or its contractors or workmen; and Cadent will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made by Cadent, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.
Acquisition of land
188 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire from Cadent any interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of Cadent otherwise than by agreement (such agreement not to be unreasonably withheld).
(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance of any part of the authorised works (or in such other timeframe as may be agreed between Cadent and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement and/or other legal or land interest of Cadent and/or affects the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent and variations upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure and/or secure the consent to and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus, including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule will prevail.
(4) Any agreement or consent granted by Cadent under paragraph 190 or any other paragraph of this Part of this Schedule, will be taken to constitute agreement under sub-paragraph (1).
(5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and/or other interest of Cadent in such decommissioned apparatus and consequently acquire title to such decommissioned apparatus and release Cadent from all liabilities in respect of such de-commissioned apparatus from the date of such surrender.
(6) Where an undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 188 do not apply, the undertaker must, unless Cadent agrees otherwise—
(a) retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and
(b) (where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.
Removal of apparatus
189 (1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 188, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished or interfered with until alternative apparatus has been constructed, is in operation, and the facilities and rights referred to in sub-paragraph (2) have been provided, to the satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive.
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Cadent advance written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its reasonable satisfaction (taking into account paragraph 190(1)) the necessary facilities and rights—
(a) for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus);
(b) subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus); and
(c) to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus).
(3) If the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, Cadent may, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation will not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Cadent and the undertaker.
(5) Cadent must, after the alternative apparatus to be provided or constructed has been agreed or settled, and subject to the prior grant to Cadent of such facilities and rights as are referred to in sub-paragraphs (2) or (3) have been afforded to Cadent to its satisfaction, then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.
Facilities and rights for alternative apparatus
190 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Cadent facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by Cadent.
(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to Cadent (in Cadent’s reasonable opinion) than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed, then the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 196 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection of Cadent
191 (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works.
(2) The plan to be submitted to Cadent under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;
(d) the position of all apparatus;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and
(f) any intended maintenance regimes.
(3) The undertaker must not commence any specified works until Cadent has given written approval of the plan so submitted (and the ground monitoring scheme if required).
(4) Any approval of Cadent given under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5); and
(b) must not be unreasonably withheld or delayed.
(5) For the purposes of sub-paragraph (4)(b) it will be deemed to be reasonable for any approval to be refused if Cadent considers that the specified works would—
(a) cause material risk of damage to its apparatus; or
(b) prevent access to its apparatus unless alternative means of access to such apparatus is provided in accordance with paragraph 195.
(6) In relation to any work to which sub-paragraphs (1) and/or (2) apply Cadent may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against material risk of damage or for the purpose of providing or securing means of access to maintain or use the apparatus no less effectively than was possible before the specified works.
(7) Works to which this paragraph applies must only be executed in accordance with—
(a) the plan submitted under sub-paragraphs (1) and (2) (and where relevant sub-paragraph (4)) (and ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and Cadent; and
(b) all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation.
(8) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.
(9) If Cadent, in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 183 to 185 and 188 to 190 apply as if the removal of the apparatus had been required by the undertaker under paragraph 189(2).
(10) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.
(11) As soon as reasonably practicable after any ground subsidence event attributable to the specified works (including such an event attributable to its maintenance)—
(a) the undertaker must implement an appropriate ground mitigation scheme; and
(b) Cadent retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 192.
(12) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works and must comply with—
(a) the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and
(b) sub-paragraph (13) at all times.
(13) At all times when carrying out any works authorised under the Order the undertaker must comply with Cadent’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of Cadent Assets CAD//SP/SSW/22” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.
Expenses
192 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand all reasonable charges, costs and expenses anticipated or incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by Cadent in connection with the negotiation and/or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 189(3) if it elects to do so; and/or
(ii) exercising any compulsory purchase powers under this Order transferred to or benefitting Cadent;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule; and
(g) any watching brief pursuant to sub-paragraph 191(6).
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 47 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to Cadent in respect of works by virtue of sub-paragraph (1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Cadent any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
Enactments and agreements
193 Except where this Part of this Schedule provides otherwise, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Co-operation
194 (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 189(2) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 191, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, Cadent’s consent must not be unreasonably withheld or delayed.
Access
195 If in consequence of any agreement reached in accordance with paragraph 188(1) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
196 Save for differences or disputes arising under sub-paragraphs 189(2), 189(4), 190(1) and 191) any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 47 (arbitration).
Article 5
PART 1 General
Licensed marine activities
1 (1) In this licence—
“the 2004 Act” means the Energy Act 2004;
“the 2008 Act” means the Planning Act 2008;
“the 2009 Act” means the Marine and Coastal Access Act 2009;
“2017 Regulations” means the Conservation of Offshore Marine Habitats and Species Regulations 2017;
“aids to navigation management plan” means the aids to navigation management plan to be submitted to the MMO under condition 12 of this licence;
“array area” means the area covered by Work No. 1 as shown on the works plan - offshore;
“array area disposal site” means the site to be used for disposal of inert material of natural origin produced during construction, drilling and seabed preparation for works associated with foundations, cables or installation vessels (including sandwave clearance) to be located within the array area;
“authorised deposits” means the substances and articles specified in paragraph 4 of Part 1 of this marine licence;
“authorised development” means Work No. 1 described in paragraph 3 of Part 1 of this marine licence or any stage of that work;
“buoy” means any floating device used for navigational purposes or measurement purposes, including LiDAR buoys, wave buoys and guard buoys;
“cable” means cables for the transmission of electricity and includes fibre optic and other communications cables either within the cable or laid alongside;
“cable crossings” means a crossing of existing sub-sea cables or pipelines or other existing infrastructure by a cable or, where cables run together in parallel, a set of cables, authorised by this Order together with cable protection;
“cable protection” means physical measures for the protection of cables including but not limited to concrete mattresses, bagged solutions, and/or rock placement (including material used for cable crossings);
“cable protection replenishment” means the restoration to a former level or condition of cable protection lost by natural seabed processes or human activity;
“commence” means the first carrying out of any licensed marine activities authorised by this marine licence, save for pre-construction surveys and monitoring approved under this marine licence and the activities set out in paragraph 2 of part 1 of this licence, and “commenced” and “commencement” must be construed accordingly;
“commissioning” means the process of assuring that all systems and components of the authorised development are tested to verify that they function and are operable in accordance with the design objectives, specifications and operational requirements of the undertaker;
“condition” means a condition in Part 2 of this licence;
“Defence Infrastructure Organisation Safeguarding” means Ministry of Defence Safeguarding, Defence Infrastructure Organisation – Safeguarding, and any successor body to its functions;
“dropped object procedure form” means the MMO notification proforma with reference MLDIR1 for reporting the loss or dumping of synthetic materials and other refuse at sea or any other format advised in writing by the MMO;
“emergency response co-operation plan” means the plan approved by the MCA for the arrangements for liaison between the undertaker and HM Coastguard in the event of an emergency response;
“enforcement officer” means a person authorised to carry out enforcement duties under Chapter 3 (enforcement) of Part 4 (marine licensing) of the 2009 Act;
“environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of the Order under article 43 (certification of plans, etc.);
“habitats of principal importance” means a habitat designated as being of principal importance in accordance with section 41 (biodiversity lists and action (England)) of the Natural Environment and Rural Communities Act 2006;
“IHO S44ed5 Order 1a” means order 1a from the fifth edition of the International Hydrographic Organisation’s Standards for Hydrographics Surveys;
“inter-array cable” means the network of offshore subsea cables connecting the wind turbine generators in Work No. 1 and the offshore substations forming part of Work No. 2 of and licenced under the deemed marine licence in Schedule 11 of the Order;
“jacket foundation” means a lattice type structure constructed of steel, which may include additional equipment such as, J-tubes, corrosion protection systems and access platforms;
“JNCC” means the Joint Nature Conservation Committee;
“JNCC Guidance” means the statutory nature conservation body ‘Guidance for assessing the significance of noise disturbance against Conservation Objectives of harbour porpoise SACs’ Joint Nature Conservation Committee Report No. 654, May 2020 published in June 2020 as amended, updated or superseded;
“Kingfisher Fortnightly bulletin” means the bulletin published by the Humber Seafood Institute or such other alternative publication approved in writing by the MMO for the purposes of this licence;
“Kingfisher Information Service” means the information service from non-departmental government body Seafish to be contacted at kingfisher@seafish.co.uk;
“LAT” means lowest astronomical tide;
“licensed activities” means the activities specified in Part 1 of this licence;
“maintain” includes inspect, upkeep, repair, adjust, and alter and further includes remove, reconstruct and replace (including replenishment of cable protection) to the extent assessed in the environmental statement, and “maintenance” must be construed accordingly;
“Marine Management Organisation” or “MMO” means the Marine Management Organisation, the body created under the 2009 Act and which is responsible for the monitoring and enforcement of this licence;
“marine noise registry” means the database developed and maintained by JNCC on behalf of Defra to record the spatial and temporal distribution of impulsive noise generating activities in UK seas;
“MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;
“MCMS” means the Marine Case Management System web portal provided and operated by the MMO;
“MHWS” or “mean high water springs” means the highest level which spring tides reach on average over a period of time;
“monopile foundation” means a steel pile, typically cylindrical, driven and/or drilled into the seabed and associated equipment including J-tubes, corrosion protection systems and access platforms and equipment;
“offshore in-principle monitoring plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“the offshore Order limits and grid co-ordinates plan” means the plan certified as such by the Secretary of State for the purposes of the Order under article 43 (certification of plans, etc.);
“Offshore Renewables Protocol for Reporting Archaeological Discoveries” means the Offshore Renewables Protocol for Reporting Archaeological Discoveries, the Crown Estate (2014), prepared by Wessex Archaeology as amended, updated or superseded from time to time;
“operation” means the undertaking of the licensed activities which are not part of the construction, commissioning or decommissioning of the authorised development;
“Order” means the Five Estuaries Offshore Wind Farm Order 2025;
“the Order limits” means the limits shown on the offshore Order limits and grid co-ordinates plans and the onshore Order limits plan within which the authorised development may be carried out, the grid coordinates for the area of which seaward of MHWS are set out in Schedule 16;
“outline fisheries liaison and co-existence plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline marine mammal mitigation protocol” means the document certified as the outline marine mammal mitigation protocol - piling by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline marine written schemes of investigation” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline offshore operations and maintenance plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline project environmental management plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline sediment disposal management plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline southern north sea special area of conservation site integrity plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline working in proximity to wildlife in the marine environment plan” means the document certified as the working in proximity to wildlife in the marine environment plan by the Secretary of State in accordance with article 43 (certification of plans, etc.) and forming an appendix to the outline project environmental management plan;
“pin piles” means steel cylindrical piles driven and/or drilled into the seabed to secure jacket foundations;
“pin piled jacket” means a jacket attached to the seabed using pin piles;
“statutory historic body” means Historic England or its successor in function;
“statutory nature conservation body” means the appropriate nature conservation body as defined in Regulation 5 of the Conservation of Habitats and Species Regulations 2017 or its equivalent in the 2017 Regulations;
“suction caisson (or bucket)” means a steel cylindrical structure attached to the legs of a jacket foundation which partially or fully penetrates the seabed and remains in place using its own weight and hydrostatic pressure differential;
“suction caisson jacket” means a jacket attached to the seabed using suction caissons (typically one per leg)
“transition piece” means the metal and / or concrete structure attached to the top of the foundation where the base of the wind turbine generator is connected and may include additional equipment such as J-tubes, corrosion protection systems, boat access systems, access platforms, craneage, radar, electrical transmission equipment and associated equipment;
“Trinity House” means the Corporation of Trinity House of Deptford Strond;
“UK Hydrographic Office” means the UK Hydrographic Office of Admiralty Way, Taunton, Somerset, TA1 2DN;
“UK Standard Marking Schedule for Offshore Installations” means the Standard Marking Schedule for Offshore Installations published by the Department of Energy & Climate Change with reference DECC 04/11.
“undertaker” means Five Estuaries Offshore Wind Farm Limited, incorporated under company number 12292474 and having its registered office at Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire, United Kingdom, SN5 6PB;
“vessel” means every description of vessel, however propelled or moved, and includes a non-displacement craft, a 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 water and which is at the time in, on or over water;
“wind turbine generator” means a structure comprising a tower, rotor with three blades connected at the hub, nacelle and ancillary electrical and other equipment which may include J-tube(s) (or equivalent structures), transition piece, access and rest platforms, access ladders, boat access systems, corrosion protection systems, fenders and maintenance equipment, helicopter landing facilities and other associated equipment, and radar equipment, fixed to a foundation or transition piece;
“working day” means a day which is not a weekend, bank holiday or public holiday in England; and
“works plans - offshore” means the plan certified as such by the Secretary of State for the purposes of the Order under article 43 (certification of plans, etc.).
(2) A reference to any statute, order, regulation or similar instrument is construed as a reference to a statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.
(3) Unless otherwise indicated—
(a) all times are taken to be Greenwich Mean Time;
(b) all co-ordinates are taken to be latitude and longitude degrees and minutes to two decimal places.
(4) Except where otherwise notified in writing by the relevant organisation, the primary point of contact with the organisations listed below and the address for returns and correspondence are—
(a) Civil Aviation Authority
Aviation House
Beehive Ringroad
Crawley
West Sussex
RH6 0YR
(b) Historic England
East of England Regional Office
Brooklands
24 Brooklands Avenue
Cambridge
CB2 8BU
(c) Marine Management Organisation
Marine Licensing Team
Lancaster House Hampshire Court
Newcastle Business Park
Newcastle upon Tyne
NE4 7YH
Tel: 0300 123 1032
(d) Marine Management Organisation (Local Office)
Miranda House
The Quay
Harwich
CO12 3HH
(e) Maritime and Coastguard Agency
Navigation Safety Branch
Bay 2/20, Spring Place
105 Commercial Road
Southampton
SO15 1EG
Tel: 020 3817 2433
(f) Ministry of Defence (as requested by Defence Infrastructure Organisation –
Safeguarding)
St George’s House
DIO Head Office
DMS Whittington
Lichfield
Staffordshire
WS14 9PY
(g) Natural England
Guildbourne House
Chatsworth Road
Worthing
BN11 1LD
Tel: 0300 060 4911
(h) Trinity House
Tower Hill
London
EC3N 4DH
Tel: 020 7481 6900
(i) The United Kingdom Hydrographic Office
Admiralty Way
Taunton
Somerset
TA1 2DN
Tel: 01823 337 900
(5) Unless otherwise advised in writing by the MMO, the address for electronic communication with the MMO for the purposes of this licence is marine.consents@marinemanagement.org.uk, or where contact to the Local Office of the MMO is required, harwich@marinemanagement.org.uk.
(6) Unless otherwise advised in writing by the MMO, the “MCMS” must be used for all licence returns or applications to vary this licence. The MCMS address is: https://marinelicensing.marinemanagement.org.uk/.
Details of licensed marine activities
2 Subject to the licence conditions at Part 2, this licence authorises the undertaker (and any agent or contractor acting on their behalf) to carry out the following licensable marine activities under section 66(1) (licensable marine activities) of the 2009 Act—
(a) the deposit at sea within the Order limits seaward of MHWS of the substances and articles specified in paragraph 4 below and within Work No. 1 when combined with the disposal authorised within the cable corridor disposal site by the deemed marine licence granted under Schedule 11 to the Order, of up to 22,374,371 cubic metres (being a maximum, not an approximate upper figure) of inert material of natural origin produced during construction drilling or seabed preparation for foundation works and cable installation preparation works within the array area disposal site (TH017 and TH018);
(b) the construction of works in or over the sea and/or on or under the seabed;
(c) dredging for the purposes of seabed preparation for foundation works, preparation for construction vessels and/or electrical circuit works;
(d) the removal of sediment samples for the purposes of informing environmental monitoring under this licence during pre-construction, construction and operation;
(e) boulder clearance works by displacement ploughing or subsea grab technique or any other comparable method;
(f) removal of static fishing equipment;
(g) wet storage; and
(h) site preparation works.
3 Such activities described in paragraph 2 are authorised in relation to the construction, maintenance and operation of—
Work No. 1—
(a) an offshore wind turbine generating station with a gross electrical output of over 100 megawatts comprising up to 79 wind turbine generators each fixed to the seabed by one of monopile foundations or mono suction caisson foundations, pin-piled jacket foundations or suction caisson jacket foundations;
(b) a network of subsea inter-array cables connecting to the offshore substations consented in Work No. 2 of Schedule 1 to the Order and licenced under the deemed marine licence set out in Schedule 11 to the Order, including cable crossings and cable protection; and
(c) floating buoys.
And in connection with Work No. 1 and to the extent that they do not otherwise form part of that work, further associated development within the meaning of section 115(2) (development for which development consent may be granted) of the 2008 Act comprising such other works as may be necessary or expedient for the purposes of or in connection with the relevant part of the authorised development and which fall within the scope of the work assessed by the environmental statement and the provisions of this licence including—
(a) scour protection around the foundations of the offshore structures;
(b) cable protection measures such as the placement of rock and/or concrete mattresses;
(c) the removal of material from the seabed required for the construction of Work No. 1; and
(d) temporary landing places, moorings or other means of accommodating or anchoring vessels in the construction and/or maintenance of the authorised development.
4 The substances or articles authorised for deposit at sea are—
(a) iron and steel, copper and aluminium;
(b) stone and rock;
(c) concrete and grout;
(d) sand and gravel;
(e) plastic, synthetic and rubber;
(f) material extracted from the seabed within the offshore Order limits during construction drilling or seabed preparation for foundation works, vessels and cable installation preparation works;
(g) anchors and weights used for the calibration of vessels, consisting of a hessian sack, metal shackles or chains; and
(h) marine coatings, other chemicals and timber.
5 The grid coordinates for that part of the authorised development comprising Work No. 1 are shown on the offshore Order limits and grid coordinates plan.
General provisions
6 This marine licence remains in force until the authorised development has been decommissioned in accordance with a programme approved by the Secretary of State under section 106 (approval of decommissioning programmes) of the 2004 Act, including any modification to the programme under section 108 (reviews and revisions of decommissioning programmes) of the 2004 Act, and the completion of such programme has been confirmed by the Secretary of State in writing.
7 The provisions of section 72 (variation, suspension, revocation and transfer) of the 2009 Act apply to this marine licence except that the provisions of section 72(7) and (8) relating to the transfer of the licence only apply to a transfer not falling within article 7 (benefit of the Order).
8 With respect to any condition which requires the licensed activities be carried out in accordance with the plans, protocols or statements approved under this Schedule, the approved details, plan or scheme are taken to include any amendments that may subsequently be approved in writing by the MMO.
9 Any amendments to or variations from the approved details, plan or scheme must be in accordance with the principles and assessments set out in the environmental statement. Such agreement may only be given in relation to changes where it has been demonstrated to the satisfaction of the MMO that it is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.
PART 2 Conditions
Design parameters
10 (1) The total number of wind turbine generators comprised in the authorised development must not exceed 79.
(2) Subject to sub-paragraph (3), each wind turbine generator forming part of the authorised scheme must not—
(a) exceed a height of 370 metres when measured from LAT to the tip of the vertical blade;
(b) exceed a rotor diameter of 340 metres;
(c) be less than 28 metres from MHWS to the lowest point of the rotating blade; and
(d) be less than 830 metres from the nearest wind turbine generator in all directions.
(3) The minimum distance in sub-paragraph (2)(d) between each wind turbine generator is to be measured from the centre point of the wind turbine generator.
(4) Wind turbine generator foundation structures forming part of the authorised development must be one of the following foundation options—
(a) monopile foundations;
(b) mono suction caisson foundations;
(c) pin-piled jacket foundations; or
(d) suction caisson jacket foundations.
(5) No wind turbine generator with a piled foundation may—
(a) employ more than 4 pin piles per foundation;
(b) in the case of monopile foundations, exceed a monopile diameter of 15 metres;
(c) in the case of a two or three pile foundation, exceed a pile diameter of 4 metres per pile; or
(d) in the case of a four pile foundation, exceed a pile diameter of 3.5 metres per pile.
(6) The total seabed footprint area for wind turbine generator foundations must not exceed—
(a) 99,274 square metres excluding scour protection; and
(b) 834,896 square metres including scour protection.
(7) The total volume of scour protection material for wind turbine generator foundations must not exceed 1,248,850 cubic metres.
11 The total length of the cables in Work No. 1(b) and the volume of their cable protection (including cable crossings) must not exceed the following—
Work | Length | Cable protection
Work No. 1 | 200 kilometres | 321,600 square metres 187,600 cubic metres
Maintenance of the authorised development
12 (1) The undertaker may at any time maintain the authorised development, except to the extent that this licence or an agreement made under this licence provides otherwise.
(2) Maintenance works include but are not limited to—
(a) major wind turbine components;
(b) painting and applying other coatings to wind turbine generators and foundations;
(c) bird waste and marine growth removal;
(d) cable remedial burial;
(e) cable repairs and replacement;
(f) cable protection replenishment;
(g) access ladder and boat landing replacement;
(h) wind turbine generator and platform anode replacement; and
(i) J-tube repair/replacement.
(3) In undertaking activities under condition 12(2)(d), (e) and (f) the undertaker must not reduce water depth by more than 5% unless agreed with the MMO in writing following consultation with the MCA.
(4) An operation and maintenance plan substantially in accordance with the outline offshore operations and maintenance plan must be submitted to the MMO for approval in consultation with the relevant SNCB and the MCA at least six months prior to the commencement of the operation of the licensed activities. All operation and maintenance activities must be carried out in accordance with the approved plan.
Vessels under the undertaker’s control
13 (1) The undertaker must issue to operators of vessels under its control operating within the Order limits a code of conduct in accordance with the provisions of the approved working in proximity to wildlife in the marine environment plan.
(2) The undertaker must ensure appropriate co-ordination of vessels within its control operating within the Order limits so as to reduce collision risk to other vessels including advisory safe passing distances for vessels.
Extension of time periods
14 Any time period given in this licence to either the undertaker or the MMO may be extended with the agreement of the other party in writing, such agreement not to be unreasonably withheld or delayed.
Notifications and inspections
15 (1) The undertaker must ensure that—
(a) a copy of this marine licence (issued as part of the grant of the Order) and any subsequent amendments or revisions to it is provided to—
(i) all agents and contractors notified to the MMO in accordance with condition 25; and
(ii) the masters and offshore operations managers responsible for the vessels notified to the MMO in accordance with condition 25;
(b) within 28 days of receipt of a copy of this marine licence and any subsequent variations to it, those persons referred to in sub-paragraph (1)(a) above must provide a completed confirmation form to the MMO confirming receipt of this marine licence.
(2) Only those persons and vessels notified to the MMO in accordance with condition 25 are permitted to carry out the licensed activities.
(3) Copies of this marine licence must also be available for inspection at the following locations—
(a) the undertaker’s registered address;
(b) any site office located at or adjacent to the construction site and used by the undertaker or its agents and contractors responsible for the loading, transportation or deposit of the authorised deposits; and
(c) on board each vessel and at the office of any offshore operations managers with responsibility for vessels from which authorised deposits or removals are to be made.
(4) The documents referred to in sub-paragraph (1)(a) must be available for inspection by an authorised enforcement officer at the locations set out in sub-paragraph (3)(b) above.
(5) The undertaker must ensure that a copy of this marine licence and any subsequent revisions or amendments has been read and understood by the masters of any vessel being used to carry on any licensed activity set out in condition 25(3), and that a copy of this marine licence is held on board any such vessel.
(6) The undertaker must provide access, and if necessary appropriate transportation, to the offshore construction site or any other associated works or vessels to facilitate any inspection that the MMO considers necessary to inspect the works during construction and operation of the authorised development.
(7) The undertaker must inform the MMO Local Office in writing at least 14 days prior to the commencement of the licensed activities and within five days of the completion of the licensed activity.
(8) The undertaker must inform the Kingfisher Information Service of Seafish details regarding the vessel routes, timings and locations relating to the construction of the authorised development or relevant stage thereof by notice via the Kingfisher Information Service portal https://kingfisherbulletin.org/submit-notice and by email sent to kingfisher@seafish.co.uk—
(a) at least fourteen days prior to the commencement of offshore activities, for inclusion in the Kingfisher Fortnightly Bulletin and offshore hazard awareness data; and
(b) as soon as reasonably practicable, and in any event no later than 24 hours after completion of construction of all offshore activities,
confirmation of notification must be provided to the MMO in writing within five days.
(9) The undertaker must ensure that a local notification to mariners is issued at least 14 days prior to the commencement of the authorised development or any relevant stage advising of the start date of Work No. 1 and the expected vessel routes from the construction ports to the relevant location. Copies of all notices must be provided to the MMO, MCA and UK Hydrographic Office within five days of issue.
(10) The undertaker must ensure that local notifications to mariners are updated and reissued at weekly intervals during construction activities and at least five days before any planned operations and maintenance works and the notices must be supplemented with VHF radio broadcasts agreed with the MCA in accordance with the project environmental management plan approved under condition 21(1)(d). Copies of all local notifications must be provided to the MMO and UK Hydrographic Office within five days of issue, save for in the case of a notice relating to operations and maintenance, which must be provided within 24 hours of issue.
(11) The undertaker must notify the UK Hydrographic Office of the commencement (within 14 days), progress and completion of construction (within 14days) of the licensed activities in order that all necessary amendments to nautical and aeronautical charts are made and the undertaker must send a copy of such notifications to the MMO and MCA within five days of the notification.
(12) In case of damage to, or destruction or decay of, the authorised development seaward of MHWS or any part thereof, excluding the exposure of cables, the undertaker must as soon as reasonably practicable and no later than 24 hours following the undertaker becoming aware of any such damage, destruction or decay, notify the MMO, the MCA, Trinity House, the Kingfisher Information Service and the UK Hydrographic Office.
(13) In case of exposure of cables on or above the seabed, the undertaker must within three days following identification of a potential cable exposure, notify mariners and inform the Kingfisher Information Service of the location and extent of exposure. Copies of all notices must be provided to the MMO, the MCA, Trinity House and the UK Hydrographic Office within five days.
(14) The undertaker must notify the MMO in writing a minimum of five days in advance of the commencement of each discrete incident of cable repair, replacement, or protection replenishment activity. Such a notification must include proposed timings and a description of proposed methodologies.
(15) The undertaker must ensure that the MMO, the MMO Local Office, local mariners, local fishermen’s organisations and the Source Data Receipt Team at the UK Hydrographic Office, Taunton, Somerset, TA1 2DN (sdr@ukho.gov.uk) are notified within five days of completion of each instance of cable repair, replacement or protection replenishment activity.
(16) Should the undertaker become aware that any of the information on which the granting of this licence was based was materially false or misleading, the undertaker must notify the MMO of this fact in writing as soon as is reasonably practicable. The undertaker must explain in writing what information was material false or misleading and must provide to the MMO the correct information.
Aids to navigation
16 (1) The undertaker must during the whole period from commencement of the licensed activities to completion of decommissioning of the authorised development seaward of MHWS exhibit such lights, marks, sounds, signals and other aids to navigation, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.
(2) The undertaker must during the period from the start of construction of the authorised scheme to completion of decommissioning of the authorised development seaward of MHWS keep Trinity House and the MMO informed in writing of progress of the authorised development seaward of MHWS including the following—
(a) notice of commencement of construction of the authorised development within 24 hours of commencement having occurred;
(b) notice within 24 hours of any aids to navigation being established by the undertaker; and
(c) notice within five days of completion of construction of the authorised development.
(3) The undertaker must provide reports to Trinity House on the availability of aids to navigation in accordance with the frequencies set out in the aid to navigation management plan agreed pursuant to condition 21(1)(g) using the reporting system provided by Trinity House.
(4) The undertaker must during the whole period from commencement of the licensed activities to completion of decommissioning of the authorised development seaward of MHWS notify Trinity House and the MMO in writing of any failure of the aids to navigation and the timescales and plans for remedying such failures, as soon as possible and no later than 24 hours following the undertaker becoming aware of any such failure.
(5) In the event that the provisions of condition 15(12) or 15(13) are invoked, the undertaker must lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as directed by Trinity House.
(6) Any jack up barges or vessels utilised during the licensed activities, when jacked up, must exhibit signals in accordance with the UK Standard Marking Schedule for Offshore Installations.
Colouring of structures
17 (1) The undertaker must colour all structures yellow (colour code RAL 1023) from at least highest astronomical tide to a height directed by Trinity House or must colour the structure as directed by Trinity House from time to time.
(2) Subject to sub-paragraph (1) above, unless the MMO otherwise directs, the undertaker must ensure that the wind turbine generators are painted light grey (colour code RAL 7035).
Aviation safety
18 (1) The undertaker must exhibit such lights, with such shape, colour and character as are required in writing by Air Navigation Order 2016 (with any reference to the territorial sea being read as a reference to the Renewable Energy Zone established under section 84 of the 2004 Act) and determined necessary for aviation safety as directed in writing by the Civil Aviation Authority, in consultation with the Defence Infrastructure Organisation Safeguarding. Lighting installed specifically to meet Ministry of Defence aviation safety requirements must remain operational for the life of the authorised development unless otherwise agreed in writing with the Ministry of Defence.
(2) The undertaker must notify the Defence Infrastructure Organisation Safeguarding, the Civil Aviation Authority and the MMO, at least 14 days prior to the commencement of the licensed activities, in writing of the following information—
(a) the date of the commencement of the licensed activities;
(b) the date any wind turbine generators are to be installed;
(c) the maximum height of any construction equipment or vessels to be used;
(d) the maximum heights of any wind turbine generator and offshore platform to be constructed (including any antennae);
(e) the latitude and longitude of each wind turbine generator and offshore platform to be constructed, and
the Defence Infrastructure Organisation Safeguarding and the Civil Aviation Authority must be notified of any changes to the information supplied under this paragraph of this condition and of the completion of the construction of the authorised development. Copies of notifications must be provided to the MMO.
Chemicals, drilling and debris
19 (1) Unless otherwise agreed in writing by the MMO all chemicals used in the construction of the authorised development must be selected from the List of Notified Chemicals approved for use by the offshore oil and gas industry under the Offshore Chemicals Regulations 2002 (as amended) as maintained by the Centre for Environment, Fisheries and Aquaculture Science.
(2) The undertaker must ensure that any coatings and/or treatments are suitable for use in the marine environment and are used in accordance with relevant guidelines approved by the Health and Safety Executive and, in so far as they are applicable, the Environment Agency Pollution Prevention Control Guidelines.
(3) The storage, handling, transport and use of fuels, lubricants, chemicals and other substances must be undertaken so as to prevent releases into the marine environment, including bunding of 110% of the total volume of all reservoirs and containers.
(4) The undertaker must inform the MMO of the location and quantities of material disposed of each month under the Order, by submission of a disposal return by 15 February each year for the months August to January inclusive, and by 15 August each year for the months February to July inclusive.
(5) The undertaker must ensure that only inert material of natural origin, produced during the drilling installation or seabed preparation for foundations, vessels or cables, and drilling mud is disposed of within the Order limits seaward of MHWS.
(6) The undertaker must ensure that any rock material used in the construction of the authorised scheme is from a recognised source, free from contaminants and containing minimal fines.
(7) In the event that any rock material used in the construction of the authorised development is misplaced or lost below MHWS, the undertaker must report the loss to the MMO Local Office in writing within 48 hours of becoming aware of it and if the MMO, in consultation with the MCA and Trinity House, reasonably considers such material to constitute a navigation or environmental hazard (dependent on the size and nature of the material) the undertaker must endeavour to locate the material and recover it at its own expense.
(8) The undertaker must ensure that no waste concrete slurry or wash water from concrete or cement works are discharged into the marine environment. Concrete and cement mixing and washing areas should be contained to prevent run off entering the marine environment through the freeing ports.
(9) The undertaker must ensure that any oil, fuel or chemical spill within the marine environment is reported in writing to the MMO, Marine Pollution Response Team in accordance with the marine pollution contingency plan agreed under condition 21(1)(d)(i)—
(a) debris or dropped objects which are considered a danger or hazard to navigation must be reports as soon as reasonably practicable but no later than six hours from the undertaker becoming aware of an incident, to the relevant HM Coastguard Maritime Rescue Co-ordination Centre by telephone and the UK Hydrographic Office email navwarnings@btconnect.com;
(b) all dropped objects within the Order limits, objects including those in sub-paragraph (a) must be reported to the MMO using the Dropped Object Procedure Form (including any updated form as provided by the MMO) as soon as reasonably practicable and in any event within 24 hours of the undertaker becoming aware of an incident unless otherwise agreed in writing by the MMO; and
(c) on receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side scan sonar) if reasonable to do so and the MMO may require obstructions to be removed from the seabed at the undertaker’s expense if reasonable to do so.
Force majeure
20 (1) If, due to stress of weather or any other cause the master of a vessel determines that it is necessary to deposit the authorised deposits within or outside of the Order limits because the safety of human life and/or of the vessel is threatened, within 48 hours full details of the circumstances of the deposit must be notified to the MMO in the manner provided in condition 19(9).
(2) The unauthorised deposits must be removed at the expense of the undertaker unless written approval is obtained from the MMO.
Pre-construction plans and documentation
21 (1) The licensed activities for each stage of construction of the authorised development must not commence until the following (insofar as relevant to that activity or stage of activity) has been submitted to and approved in writing by the MMO, in consultation with, where relevant, Trinity House, the MCA, UK Hydrographic Office and relevant SNCB—
(a) a design plan, prepared in accordance with the offshore project design principles at a scale of between 1:25,000 and 1:50,000, or in such other format as may be appropriate, including detailed representation on the most suitably scaled chart, which shows for the relevant stage—
(i) the proposed location, including grid co-ordinates of the centre point of the proposed location for each wind turbine generator, and offshore platform, subject to any micro-siting required due to anthropological constraints, environmental constraints or difficult ground conditions discovered post approval under this condition and choice of foundation types for all wind turbine generators;
(ii) the number, specifications and dimensions of the wind turbine generators to be installed;
(iii) the length and arrangement of cables comprising Work No. 1(b);
(iv) the type and dimensions of all foundations; and
(v) any exclusion zones or micro-siting requirements identified in any mitigation plan pursuant to sub-paragraph (2)(d) or relating to any habitats of principal importance identified as part of surveys undertaken in accordance with condition 26;
to ensure conformity with the description of Work No. 1 and compliance with conditions 10, 11 and 12 above;
(b) a construction programme for the relevant stage to include details of—
(i) the proposed construction start date;
(ii) proposed timings for mobilisation of plant delivery of materials and installation works; and
(iii) an indicative written construction programme for all wind turbine generators, offshore platforms and cable comprised in the works at paragraph 2 to 3(b) of Part 1 (licensed marine activities) of this Schedule (insofar as not shown in paragraph (ii) above), unless otherwise agreed in writing with the MMO;
(c) a construction method statement in accordance with the construction methods assessed in the environmental statement and including details for the relevant stage of—
(i) foundation installation methodology, including drilling methods and disposal of drill arisings and material extracted during seabed preparation for foundation and cable installation works and having regard to any mitigation scheme pursuant to sub-paragraph (1)(f);
(ii) cable installation works including cable protection;
(iii) contractors; and
(iv) associated ancillary works;
(d) a project environmental management plan in accordance with the outline project environmental management plan covering the period of construction for the relevant stage to include details of—
(i) a marine pollution contingency plan to address the risks, methods and procedures to deal with and report any spills and collision incidents of the authorised development in relation to all activities carried out;
(ii) a chemical risk register to include information regarding how and when chemicals are to be used, stored and transported in accordance with recognised best practice guidance;
(iii) a marine biosecurity plan detailing how the risk of introduction and spread of invasive non-native species will be minimised;
(iv) waste management and disposal arrangements;
(v) a working in proximity to wildlife in the marine environment plan, in accordance with the outline working in proximity to wildlife in the marine environment plan;
(e) details of proposed pre-construction monitoring surveys, construction monitoring, post-construction monitoring and related reporting in accordance with conditions 26, 27 and 29;
(f) in the event that driven or part-driven pile foundations are proposed to be used, a marine mammal mitigation protocol for that stage, in accordance with the outline marine mammal mitigation protocol, the intention of which is to prevent injury to marine mammals. The marine mammal mitigation protocol must include, following current best practice as advised by the relevant statutory nature conservation bodies, details of soft start procedures with specified duration periods and details of noise reduction methods through project design (primary measures) and deployment of noise abatement systems or noise reduction systems (secondary measures) that will be utilised to manage noise from those piling activities, including full details and justification for any mitigation chosen and / or excluded for deployment;
(g) an aids to navigation management plan to be agreed in writing by the MMO following consultation with Trinity House, to include details of how the undertaker will comply with the provisions of condition 16 relating to that stage for the lifetime of the authorised development;
(h) an offshore monitoring plan for the relevant stage which accords with the principles set out in the offshore in principle monitoring plan;
(i) a fisheries liaison and co-existence plan for the relevant stage which accords with the principles set out in the outline fisheries liaison and co-existence plan; and
(j) a sediment disposal management plan for the relevant stage which accords with the principles set out in the outline sediment disposal management plan.
(2) Subject to sub-paragraph (3), the licensed activities or any relevant stage of those activities must not commence unless, no later than six months prior to the commencement, a marine written scheme of archaeological investigation for the stage in construction has been submitted to and approved by the MMO in writing, in accordance with the outline marine written schemes of investigation, and in accordance with industry good practice, in consultation with the statutory historic body to include—
(a) details of responsibilities of the undertaker, archaeological consultant and contractor;
(b) a method statement for further site investigation including any specifications for geophysical, geotechnical and diver or remotely operated vehicle investigations;
(c) archaeological analysis of survey data, and timetable for reporting, which is to be submitted to the MMO within six months of any survey being completed;
(d) delivery of any mitigation including, where necessary, identification and modification of archaeological exclusion zones prior to construction;
(e) monitoring of archaeological exclusion zones during and post construction, including provision of a report on such monitoring;
(f) a requirement for the undertaker to ensure that a copy of any agreed archaeological report is deposited with the National Record of the Historic Environment, by submitting a Historic England OASIS (‘online access to the index of archaeological investigations’) form with a digital copy of the report within six months of completion of construction of the authorised development, and to notify the MMO that the OASIS form has been submitted to the National Record of the Historic Environment within two weeks of submission;
(g) a reporting and recording protocol, designed in reference to the Offshore Renewables Protocol for Reporting Archaeological Discoveries as set out by the Crown Estate and reporting of any wreck or wreck material during construction, operation and decommissioning of the authorised development; and
(h) a timetable for all further site investigations, which must allow sufficient opportunity to establish a full understanding of the historic environment within the offshore Order limits and the approval of any necessary mitigation required as a result of the further site investigations prior to commencement of licensed activities.
(3) Pre-construction archaeological investigations and pre-commencement material operations which involve intrusive seabed works must only take place in accordance with a method statement produced under the written scheme of investigation specific to the relevant pre-construction activities (which must accord with the details set out in the outline marine written schemes of investigation) which has been submitted to and approved by the MMO in consultation with the statutory historic body.
(4) In the event that driven or part-driven pile foundations are proposed to be used, the hammer energy used to drive or part-drive monopile foundations must not exceed 7,000kJ and the hammer energy used to drive or part-drive pin pile foundations must not exceed 3,000kJ.
(5) No more than two main installation vessels may be engaged at any time in activities related to piling for the licenced activities. There must only be a maximum installation of two monopiles foundations or 8 pin piles within a 24-hour period. It is possible for installation of two piled foundations to occur concurrently i.e. within a 24-hour period at up to two locations within the area of Work No. 1.
(6) Percussive piling associated with wind turbine generator foundations, together with cable laying or seabed preparation must not take place between 1 November to 24 January (inclusive) in any year within the southern array area for the protection of spawning herring unless otherwise agreed in writing by the MMO. For the purposes of this condition “southern array area” means the area identified as having medium to high confidence in terms of suitability for herring spawning within the heatmapping exercise detailed within the Fish and Shellfish Ecology Technical Baseline Report.
(7) The undertaker must, before submitting any pre-construction plans and documentation required under this condition, provide a copy of the plans and documentation to any other undertaker to whom part of the benefit of this Order has been transferred or leased pursuant to article 7 (benefit of the Order) of the Order.
(8) The undertaker to whom part of the benefit of the Order has been transferred or leased pursuant to article 7 (benefit of the Order) must provide any comments on the plans and documentation to the undertaker within 14 days of receipt.
(9) The undertaker must participate in liaison meetings as requested from time to time by the MMO in writing in advance and must consider such matters as are determined by the MMO relating to the efficient operation of a deemed marine licence issued under this Order (including as varied or transferred).
22 (1) Except where otherwise stated or agreed in writing with the MMO, each programme, statement, plan, protocol or scheme required to be approved under condition 21 (save for that required under condition 21(1)(e)) must be submitted for approval at least six months prior to the intended commencement of the relevant stage of the licensed activities.
(2) The pre-construction monitoring surveys, construction monitoring, post-construction monitoring and related reporting required under condition 21(1)(e), must be submitted in accordance with the following, unless otherwise agreed in writing with the MMO—
(a) at least six months prior to the first survey of the relevant stage, detail of any pre– construction surveys and an outline of all proposed monitoring;
(b) at least six months prior to construction, detail on construction monitoring; and
(c) at least six months prior to commissioning, detail of postconstruction (and operational) monitoring.
(3) The MMO must determine an application for approval made under condition 21 within a period of six months commencing on the date the application is received by the MMO, unless otherwise agreed in writing with the undertaker such agreement not to be unreasonably withheld or delayed.
(4) The licensed activities must be carried out in accordance with the approved plans, protocols, statements, schemes and details approved under condition 21, unless otherwise agreed in writing by the MMO.
(5) The plans, protocols, statements, schemes and details submitted under condition 21 must ensure that any residual effects fall within the scope of those predicted in the environmental statement.
Site Integrity Plan
23 (1) No piling activities can take place until a southern north sea special area of conservation site integrity plan (“SIP”), which accords with the principles set out in the outline southern north sea special area of conservation site integrity plan, has been submitted to, and approved in writing, by the MMO in consultation with the relevant statutory nature conservation body.
(2) The SIP submitted for approval must contain a description of the conservation objectives for the Southern North Sea Special Area of Conservation (“SNS SAC”) as well as any relevant management measures and it must set out the key statutory nature conservation body advice on activities within the SNS SAC relating to piling as set out within the JNCC Guidance and how this has been considered in the context of the authorised scheme.
(3) The SIP must be submitted in writing to the MMO no sooner than nine months and no later than six months prior to the commencement of piling activities.
(4) In approving the SIP the MMO must determine whether the authorised scheme at the preconstruction stage, in-combination with other plans and projects, would be in line with the JNCC Guidance.
(5) The approved SIP may be amended with the prior written approval of the MMO, in consultation with the relevant statutory nature conservation body, where the MMO determines that the authorised development, in-combination with other plans or projects at the pre-construction stage, is in line with the JNCC Guidance.
Offshore safety management
24 (1) No stage of the authorised development may commence until the MMO, in consultation with the MCA, has confirmed in writing that the undertaker has taken into account and adequately addressed all MCA recommendations as appropriate to the authorised development contained within MGN654 “Offshore Renewable Energy Installations (OREIs) – Guidance on UK Navigational Practice, Safety and Emergency Response Issues” and its annexes.
(2) No stage of the authorised development may commence until the MMO, in consultation with the MCA, has confirmed in writing that an emergency response co-operation plan has been prepared by the undertaker.
Reporting of engaged agents, contractors and vessels
25 (1) The undertaker must provide the following information to the MMO—
(a) the name, company number, address and function of any agent, contractor or subcontractor appointed to engage in the licensed activities not less than ten working days prior to such agent or contractor commencing any licensed activity; and
(b) each week during the construction of the authorised development a list of the vessels currently and to be used in relation to the licensed activities, including the master’s name, vessel type, vessel IMO number and vessel owner or operating company.
(2) Any changes to the supplied details must be notified to the MMO in writing not less than 24 hours prior to the agent, contractor or vessel engaging in the licensed activities.
(3) The undertaker must notify the MMO in writing not less than 24 hours prior to the commencement of major component exchanges, ladder replacements or cable related works—
(a) any agents, contractors or subcontractors that will carry out such works; and
(b) any vessel proposed to be used for such works, including the master’s name, vessel type, vessel IMO number and vessel owner or operating company.
Pre-construction monitoring and surveys
26 (1) The undertaker must in discharging condition 21(1)(e) for construction submit a monitoring plan in accordance with the offshore in-principle monitoring plan for written approval by the MMO in consultation with the relevant statutory bodies, which must contain details of proposed surveys, including methodologies and timings, and a proposed format and content for a pre-construction baseline report and—
(a) the survey proposals must be in accordance with the principles set out in the offshore in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the post-construction position or will enable the validation or otherwise of key predictions in the environmental statement; and
(b) the baseline report proposals must ensure that the outcome of the agreed surveys together with existing data and reports are drawn together to present a valid statement of the preconstruction position, with any limitations, and must make clear what post-construction comparison is intended and the justification for this being required.
(2) Subject to receipt from the undertaker of specific proposals pursuant to this condition, the pre-construction survey proposals must comprise, in outline—
(a) a full sea floor coverage swath–bathymetry survey that meets the requirements of IHO S44ed5 Order 1a, of the Order limits and a buffer outside to—
(i) determine the location, extent and composition of any biogenic or geogenic reef features, as set out within the offshore in-principle monitoring plan;
(ii) inform future navigation risk assessments; and
(iii) inform the identification of any archaeological exclusion zone and post consent monitoring of any such archaeological exclusion zone;
(b) a bathymetric survey that meets the requirements of IHO S44ed5 Order 1a of the area within the Order Limits within which it is proposed to carry out construction works.
(3) The pre-construction survey(s) carried out pursuant to sub-paragraphs (2)(a)(ii) and (2)(b) must fulfil the requirements of MGN654 and its supporting ‘Hydrographic Guidelines for Offshore Renewable Energy Developer’ (as relevant).
(4) The undertaker must carry out the surveys specified within the monitoring plan or plans in accordance with that plan or plans, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
(5) Following completion of a survey carried out pursuant to this condition and prior to construction of the relevant stage, the undertaker must provide a report and full density data of the survey outcomes to the MMO, the relevant statutory nature conservation body, the MCA and UK Hydrographic Office as relevant.
(6) In the event that the reports provided to the MMO under sub-paragraph (5) identify impacts which are unanticipated and / or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and / or adaptive management must be implemented and monitored in full. In the event that this alternative and / or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approved alternative and / or adaptive management, the undertaker shall only be required to undertake the alternative and / or adaptive management once the consent is granted.
(7) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Construction monitoring
27 (1) The undertaker must, in discharging condition 21(1)(e), submit a construction monitoring plan or plans for that stage in accordance with the offshore in-principle monitoring plan for written approval by the MMO in consultation with the relevant statutory nature conservation body, which must include details of any proposed construction monitoring, including methodologies and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the pre-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement.
(2) Subject to receipt from the undertaker of specific proposals pursuant to this condition the construction monitoring plan must include, in outline—
(a) vessel traffic monitoring by automatic identification system for the duration of the construction period, with provision for a report to be submitted to the MMO, Trinity House, and the MCA annually during the construction period for the authorised development; and
(b) where driven or part-driven pile foundations are to be employed, unless otherwise agreed by the MMO in writing, details of proposed monitoring of the noise generated by the installation of at least four of the first 12 piled foundations of each piled foundation type to be installed collectively under this licence and the licence granted under Schedule 11 of the Order.
(3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
(4) In the event that the reports provided to the MMO under sub-paragraph (3) identify impacts which are unanticipated and / or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and / or adaptive management must be implemented and monitored in full. In the event that this alternative and / or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approved alternative and / or adaptive management, the undertaker shall only be required to undertake the alternative and / or adaptive management once the consent is granted.
(5) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Monitoring of underwater noise from piling
28 (1) In the event that driven or part-driven pile foundations are proposed, the monitoring plan submitted under condition 27(2)(b) must include measurements of noise generated by the installation of at least four of the first 12 piled foundations of each piled foundation type to be installed unless agreed in writing by the MMO, in consultation with the relevant statutory nature conservation bodies.
(2) The results of the initial noise measurements monitored in accordance with sub-paragraph (1) must be provided in writing to the MMO within six weeks of the installation (unless otherwise agreed) of the first four of each piled foundations monitored in accordance with sub-paragraph (1). The assessment of this report by the MMO will determine whether any further noise monitoring is required. If, in the reasonable opinion of the MMO in consultation with the relevant statutory nature conservation body, determines that the assessment shows impacts significantly in excess to those assessed in the environmental statement and / or that there have been failures in the mitigation deployed, all piling activity must cease until either contingency measures approved within the marine management mitigation protocol have been implemented or an update to the marine mammal mitigation protocol and further monitoring requirements have been agreed.
Post-construction monitoring
29 (1) The undertaker must, in discharging condition 21(1)(e), submit a post-construction monitoring plan or plans for that stage in accordance with the offshore in-principle monitoring plan for written approval by the MMO in consultation with the relevant statutory nature conservation body including details of proposed post-construction surveys, including methodologies (including appropriate buffers, where relevant) and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must be in accordance with the principles set out in the offshore in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the preconstruction position and/or will enable the validation or otherwise of key predictions in the environmental statement.
(2) Subject to receipt of specific proposals the post-construction survey plan or plans must include, in outline—
(a) a bathymetric survey to monitor the effectiveness of archaeological exclusion zones. The data will be analysed by an accredited archaeologist as defined in the marine written schemes of archaeological investigation required under condition 21(2); and
(b) vessel traffic monitoring by automatic identification system for a duration of three consecutive years following the completion of construction of the authorised development, unless otherwise agreed in writing by the MMO, with provision for a report to be submitted annually to the MMO, Trinity House, and the MCA.
(3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation body.
(4) Within 12 weeks of completion of any cable repair or replacement works, the undertaker must undertake a post installation survey along the section of cable that has undergone repair or replacement to demonstrate the successful burial of the cable, and submit a report to the MMO, the MCA, and Trinity House in writing on its findings.
(5) In the event that the reports provided to the MMO under sub-paragraphs (3) and (4) identify impacts which are unanticipated and / or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and / or adaptive management must be implemented and monitored in full. In the event that this alternative and / or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approved alternative and / or adaptive management, the undertaker shall only be required to undertake the alternative and / or adaptive management once the consent is granted.
(6) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Timing of monitoring report
30 Any monitoring report compiled in accordance with the monitoring plans provided under conditions 26, 27 and 29 must be provided to the MMO no later than four months following receipt by the undertaker of the results of monitoring to which it relates, unless otherwise agreed with the MMO in writing.
Reporting of impact pile driving
31 (1) In the event that driven or part–driven pile foundations are proposed to be used as part of the foundation installation the undertaker must provide the following information to the Marine Noise Registry—
(a) prior to the commencement of each stage of construction of the licensed activities, information on the expected location, start and end dates of impact pile driving to satisfy the Marine Noise Registry’s Forward Look requirements;
(b) at six month intervals following the commencement of pile driving, information on the locations and dates of impact pile driving to satisfy the Marine Noise Registry’s Close Out requirements; and
(c) within 12 weeks of completion of impact pile driving, information on the locations and dates of impact pile driving to satisfy the Marine Noise Registry’s Close Out requirements.
(2) The undertaker must notify the MMO in writing of the successful submission of Forward Look or Close Out data pursuant to sub-paragraph (1) above within 7 days of the submission.
(3) For the purpose of this condition, “Forward Look” and “Close Out” mean the requirements as set out in the UK Marine Noise Registry Information Document Version 1 (July 2015) as amended, updated or superseded from time to time.
Maintenance reporting
32 (1) An annual maintenance report must be submitted to the MMO in writing within one month following the first anniversary of the date of commencement of operations, and every year thereafter until the permanent cessation of operation.
(2) The report must provide a record of the licensed activities as set out in condition 12 during the preceding year, the timing of activities and methodologies used.
(3) Every fifth year, the undertaker must submit to the MMO in writing, within one month of that date, a consolidated maintenance report, which will—
(a) include a review of licensed activities undertaken during the preceding five years with reference to the reports submitted in accordance with sub-paragraph (1); and
(b) reconfirm the applicability of the methodologies and frequencies of the licensable activities permitted by this licence for the remaining duration of this licence.
Stages of construction
33 (1) The licenced activities must not be commenced until a written scheme setting out the stages of construction of the authorised development seaward of MHWS has been submitted to and approved by the MMO in writing.
(2) The scheme must be implemented as approved.
(3) The written scheme referred to in sub-paragraph (1) must be submitted to the MMO in writing four months prior to the planned commencement of the licenced activities.
Completion of construction
34 (1) The undertaker must submit a close out report in writing to the MMO and the relevant statutory nature conservation body within three months of the date of completion of construction. The close out report must confirm the date of completion of construction and must include the following details—
(a) the final number of installed wind turbine generators; and
(b) the installed wind turbine generator parameters relevant for ornithological collision risk modelling.
(2) Following completion of construction, no further construction activities can be undertaken under this licence.
35 The undertaker must submit a close out report to the MCA and the UK Hydrographic Office within three months of the date of completion of construction. The close out report must confirm the date of completion of construction and must include the following—
(a) the final number of installed wind turbine generators;
(b) a plan of the layout of installed wind turbine generators and offshore platform; and
(c) latitude and longitude coordinates of the centre point of the location of each wind turbine generator and offshore platform, provided as Geographical Information System data referenced to WGS84 datum.
Reporting of scour and cable protection;
36 (1) Not more than four months following completion of the construction of the authorised development, the undertaker must provide the MMO and the relevant statutory nature conservation bodies with a report setting out details of the cable protection and scour protection used for the authorised development.
(2) The report must include the following information—
(a) the location of cable protection and scour protection;
(b) the volume of cable protection and scour protection; and
(c) any other information relating to the cable protection and scour protection as agreed between the MMO and the undertaker.
Deployment of cable protection
37 Any cable protection authorised under this licence must be deployed within 10 years from the date of the grant of the Order unless otherwise agreed by the MMO in writing.
Article 5
PART 1 General
Licensed Marine Activities
1 (1) In this licence—
“the 2004 Act” means the Energy Act 2004;
“the 2008 Act” means the Planning Act 2008;
“the 2009 Act” means the Marine and Coastal Access Act 2009;
“2017 Regulations” means the Conservation of Offshore Marine Habitats and Species Regulations 2017;
“aids to navigation management plan” means the aids to navigation and management plan to be submitted to the MMO under the conditions of this licence;
“array area” means the area covered by Work No. 1 as shown on the works plan - offshore;
“array area disposal site” means the site to be used for disposal of inert material of natural origin produced during construction, drilling and seabed preparation for works associated with foundations, cables or installation vessels (including sandwave clearance) to be located within the array area;
“authorised deposits” means the substances and articles specified in paragraph 4 of Part 1 of this marine licence;
“authorised development” means Work Nos. 2, 2A and 3 described in paragraph 3 of Part 1 of this marine licence or any stage of that work;
“buoy” means any floating device used for navigational purposes or measurement purposes, including LiDAR buoys, wave buoys and guard buoys;
“cable” means cables for the transmission of electricity and includes fibre optic and other communications cables either within the cable or laid alongside;
“cable crossings” means a crossing of existing sub-sea cables or pipelines or other existing infrastructure by a cable or, where cables run together in parallel, a set of cables, authorised by this Order together with cable protection;
“cable protection” means physical measures for the protection of cables including but not limited to concrete mattresses, bagged solutions, and/or rock placement (including material used for cable crossings);
“cable protection replenishment” means the restoration to a former level or condition of cable protection lost by natural seabed processes or human activity;
“commence” means the first carrying out of any licensed marine activities authorised by this marine licence, save for pre-construction surveys and monitoring approved under this marine licence and the activities set out in paragraph 2 of Part 1 of this licence, and “commenced” and “commencement” must be construed accordingly;
“commissioning” means the process of assuring that all systems and components of the authorised development are tested to verify that they function and are operable in accordance with the design objectives, specifications and operational requirements of the undertaker;
“condition” means a condition in Part 2 of this licence;
“Defence Infrastructure Organisation Safeguarding” means Ministry of Defence Safeguarding, Defence Infrastructure Organisation and any successor body to its functions;
“Defra” means the Department for Environment, Food and Rural Affairs;
“dropped object procedure form” means the MMO notification proforma with reference MLDIR1 for reporting the loss or dumping of synthetic materials and other refuse at sea or any other format advised in writing by the MMO;
“emergency response co-operation plan” means the plan approved by the MCA the arrangements for liaison between the undertaker and HM Coastguard in the event of an emergency response;
“enforcement officer” means a person authorised to carry out enforcement duties under Chapter 3 (enforcement) of Part 4 (marine licensing) of the 2009 Act;
“environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of the Order under article 43 (certification of plans, etc.);
“habitats of principal importance” means a habitat designated as being of principal importance in accordance with section 41 (biodiversity lists and action (England)) of the Natural Environment and Rural Communities Act 2006;
“IHO S44ed5 Order 1a” means order 1a from the fifth edition of the International Hydrographic Organisation’s Standards for Hydrographics Surveys;
“inter-array cable” means the network of offshore subsea cables connecting the wind turbine generators in Work No. 1 and licenced under the deemed marine licence in Schedule 10 to the Order, and the offshore substations forming part of Work No. 2;
“jacket foundation” means a lattice type structure constructed of steel, which may include additional equipment such as, J-tubes, corrosion protection systems and access platforms;
“JNCC” means the Joint Nature Conservation Committee;
“JNCC Guidance” means the statutory nature conservation body ‘Guidance for assessing the significance of noise disturbance against Conservation Objectives of harbour porpoise SACs’ Joint Nature Conservation Committee Report No. 654, May 2020 published in June 2020 as amended, updated or superseded;
“Kingfisher Fortnightly bulletin” means the bulletin published by the Humber Seafood Institute or such other alternative publication approved in writing by the MMO for the purposes of this licence;
“Kingfisher Information Service” means the information service from non-departmental government body Seafish;
“LAT” means lowest astronomical tide;
“licensed activities” means the activities specified in Part 1 of this licence;
“maintain” includes inspect, upkeep, repair, adjust, and alter and further includes remove, reconstruct and replace (including replenishment of cable protection) to the extent assessed in the environmental statement, and “maintenance” must be construed accordingly;
“Margate and Long Sands SAC benthic mitigation plan” means the document certified as such by the Secretary of State for the purposes of the Order under article 43 (certification of plans, etc.);
“Marine Management Organisation” or “MMO” means the Marine Management Organisation, the body created under the 2009 Act and which is responsible for the monitoring and enforcement of this licence;
“Marine Noise Registry” means the database developed and maintained by JNCC on behalf of Defra to record the spatial and temporal distribution of impulsive noise generating activities in UK seas;
“MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;
“MHW” or “mean high water” means the highest level which spring tides reach on average over a period of time;
“MHWS” or “mean high water springs” means the boundary of the landward jurisdiction of the 2009 Act;
“monopile foundation” means a steel pile, typically cylindrical, driven and/or drilled into the seabed and associated equipment including J-tubes, corrosion protection systems and access platforms and equipment;
“offshore in principle monitoring plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“the offshore Order limits and grid co-ordinates plan” means the plan certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“offshore project design principles” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“Offshore Renewables Protocol for Reporting Archaeological Discoveries” means the Offshore Renewables Protocol for Reporting Archaeological Discoveries, issued by the Crown Estate (2014), prepared by Wessex Archaeology as amended, updated or superseded from time to time;
“offshore substation platform” means a structure above LAT and attached to the seabed by means of a foundation, with one or more decks and a helicopter platform (including bird deterrents), containing—
electrical equipment required to switch, transform, convert electricity generated at the wind turbine generators to a higher voltage and provide reactive power compensation; and
storage, workshop auxiliary equipment, radar and facilities for operating, maintaining and controlling the substation or wind turbine generators;
“operation” means the undertaking of the licensed activities which are not part of the construction, commissioning or decommissioning of the authorised development;
“Order” means the Five Estuaries Offshore Wind Farm Order 2025;
“the Order limits” means the limits shown on the offshore Order limits and grid co-ordinates plans and the onshore Order limits plan within which the authorised development may be carried out, the grid coordinates for the area of which seaward of MHWS are set out in Schedule 16;
“outline cable specification and installation plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline fisheries liaison and co-existence plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline marine mammal mitigation protocol” means the document certified as the outline marine mammal mitigation protocol - piling by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline marine written scheme of investigation” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline navigation and installation plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline offshore operations and maintenance plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline project environmental management plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline sediment disposal management plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline southern north sea special area of conservation site integrity plan” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.);
“outline working in proximity to wildlife in the marine environment plan” means the document certified as the working in proximity to wildlife in the marine environment plan by the Secretary of State in accordance with article 43 (certification of plans. etc.) and forming an appendix to the outline project environmental management plan;
“pin piles” means steel cylindrical piles driven and/or drilled into the seabed to secure jacket foundations;
“pin piled jacket” means a jacket attached to the seabed using pin piles;
“PLA” means the Port of London Authority;
“statutory historic body” means Historic England or its successor in function;
“statutory nature conservation body” means the appropriate nature conservation body as defined in Regulation 5 of the Conservation of Habitats and Species Regulations 2017 or its equivalent in the 2017 Regulations;
“suction caisson (or bucket)” means a steel cylindrical structure attached to the legs of a jacket foundation which partially or fully penetrates the seabed and remains in place using its own weight and hydrostatic pressure differential;
“suction caisson jacket” means a jacket attached to the seabed using suction caissons (typically one per leg);
“Trinity House” means the Corporation of Trinity House of Deptford Strond;
“UK Hydrographic Office” means the UK Hydrographic Office of Admiralty Way, Taunton, Somerset, TA1 2DN;
“UK Standard Marking Schedule for Offshore Installations” means the Standard Marking Schedule for Offshore Installations published by the Department of Energy & Climate Change with reference DECC 04/11;
“undertaker” means Five Estuaries Offshore Wind Farm Limited, incorporated under company number 12292474 and having its registered office at Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire, United Kingdom, SN5 6PB;
“vessel” means every description of vessel, however propelled or moved, and includes a non-displacement craft, a 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 water and which is at the time in, on or over water;
“working day” means a day which is not a weekend, bank holiday or public holiday in England; and
“works plan - offshore” means the document certified as such by the Secretary of State for the purposes of this Order under article 43 (certification of plans, etc.).
(2) A reference to any statute, order, regulation or similar instrument is construed as a reference to a statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.
(3) Unless otherwise indicated—
(a) all times are taken to be Greenwich Mean Time;
(b) all co-ordinates are taken to be latitude and longitude degrees and minutes to two decimal places.
(4) Except where otherwise notified in writing by the relevant organisation, the primary point of contact with the organisations listed below and the address for returns and correspondence are—
(a) Civil Aviation Authority
Aviation House
Beehive Ringroad
Crawley
West Sussex
RH6 0YR
(b) Historic England
East of England Regional Office
Brooklands
24 Brooklands Avenue
Cambridge
CB2 8BU
(c) Marine Management Organisation
Marine Licensing Team
Lancaster House Hampshire Court
Newcastle Business Park
Newcastle upon Tyne
NE4 7YH
Tel: 0300 123 1032
(d) Marine Management Organisation (Local Office)
Miranda House
The Quay
Harwich
CO12 3HH
(e) Maritime and Coastguard Agency
Navigation Safety Branch
Bay 2/20, Spring Place
105 Commercial Road
Southampton
SO15 1EG
Tel: 020 3817 2433
(f) Ministry of Defence (as requested by Defence Infrastructure Organisation – Safeguarding)
St George’s House
153
DIO Head Office
DMS Whittington
Lichfield
Staffordshire
WS14 9PY
(g) Natural England
Guildbourne House
Chatsworth Road
Worthing
BN11 1LD
Tel: 0300 060 4911
(h) Trinity House
Tower Hill
London
EC3N 4DH
Tel: 020 7481 6900
(i) Port of London Authority
London River House
Royal Pier Road
Gravesend
Kent
Tel: 01474 562200
(j) The United Kingdom Hydrographic Office
Admiralty Way
Taunton
Somerset
TA1 2DN
Tel: 01823 337 900
(5) Unless otherwise advised in writing by the MMO, the address for electronic communication with the MMO for the purposes of this licence is marine.consents@marinemanagement.org.uk, or where contact to the Local Office of the MMO is required, harwich@marinemanagement.org.uk.
(6) Unless otherwise advised in writing by the MMO, the Marine Case Management System (“MCMS”) must be used for all licence returns or applications to vary this licence. The MCMS address is: https://marinelicensing.marinemanagement.org.uk/.
Details of licensed marine activities
2 Subject to the licence conditions at Part 2, this licence authorises the undertaker (and any agent or contractor acting on their behalf) to carry out the following licensable marine activities under section 66(1) (licensable marine activities) of the 2009 Act—
(a) the deposit at sea within the Order limits seaward of MHWS of the substances and articles specified in paragraph 4 below and within—
(i) the array area disposal sites (TH017 and TH018), when combined with the disposal authorised by the deemed marine licence granted under Schedule 10 to the Order, of up to 22,374,371 cubic metres (being a maximum, not an approximate upper figure) of inert material of natural origin produced during construction drilling or seabed preparation for foundation works and cable installation preparation and excavation of horizontal directional drilling pits works within the parts of Work No. 2 that lie within the array area; and
(ii) the cable corridor disposal site (TH019) of up to 9,214,386 cubic metres (being a maximum, not an approximate upper figure) of inert material of natural origin produced during construction drilling or seabed preparation for foundation works and cable installation preparation and excavation of horizontal directional drilling pits works within Work Nos. 2, 2A and 3;
(b) the construction of works in or over the sea, and or on or under the seabed;
(c) dredging for the purposes of seabed preparation for installation of foundations, preparation for construction vessels and/or electrical circuit works;
(d) boulder clearance works by displacement ploughing or subsea grab technique or any other equivalent method;
(e) the removal of sediment samples for the purposes of informing environmental monitoring under this licence during pre-construction, construction and operation;
(f) removal of static fishing equipment;
(g) wet storage; and
(h) site preparation works.
3 Such activities described in paragraph 2 are authorised in relation to the construction, maintenance and operation of—
Work No. 2— Electrical export works comprising—
(a) up to two offshore substation platforms each fixed to the seabed by a foundation;
(b) up to two subsea cable circuits between the offshore platforms forming Work No. 2(a) including cable crossings and cable protection; and
(c) up to two subsea cable circuits between Work No. 2(a) and Work No. 3, cable protection and cable crossings.
Work No. 2A— Sheet piling works and creation of pits for trenchless installation techniques, including installation of up to two cable ducts, installation and use of temporary construction working areas, cable installation vessel anchoring and works to allow vessels to remain in place at low tide.
Work No. 3— Installation of up to two subsea cable circuits between Work No. 2 and Work No. 4, including up to two cable ducts, cable protection and cable crossings and further including—
(a) sheet piling works including creation of pits for trenchless installation techniques, trenchless installation technique works including the creation of entrance and exit pits; and
(b) installation and use of temporary construction working areas, cable installation vessel anchoring, works to allow vessels to remain in place at low tide and laydown area.
In connection with such Work Nos. 2, 2A and 3 and to the extent that they do not otherwise form part of any such work, further associated development within the meaning of section 115(2) (development for which development consent may be granted) of the 2008 Act comprising such other works as may be necessary or expedient for the purposes of or in connection with the relevant part of the authorised development and which fall within the scope of the work assessed by the environmental statement and the provisions of this licence, including—
(a) scour protection around the foundations of the offshore electrical installations;
(b) cable protection measures such as the placement of rock and/or concrete mattresses;
(c) the removal of material from the seabed required for the construction of Work Nos. 2 and 3; and
(d) temporary landing places, moorings or other means of accommodating or anchoring vessels in the construction and/or maintenance of the authorised development.
4 The substances or articles authorised for deposit at sea are—
(a) iron and steel, copper and aluminium;
(b) stone and rock;
(c) concrete and grout;
(d) sand and gravel;
(e) plastic, synthetic and rubber;
(f) material extracted from the seabed within the offshore Order limits during construction drilling or seabed preparation for foundation works cable installation preparation works and excavation of horizontal directional drilling pits;
(g) anchors and weights used for the calibration of vessels, consisting of a hessian sack, metal shackles or chains; and
(h) marine coatings, other chemicals and timber.
5 The grid coordinates for that part of the authorised development comprising Work Nos. 2, 2A and 3 are shown on the offshore Order limits and grid coordinates plan.
General provisions
6 This marine licence remains in force until the authorised development has been decommissioned in accordance with a programme approved by the Secretary of State under section 106 (approval of decommissioning programmes) of the 2004 Act, including any modification to the programme under section 108 (reviews and revisions of decommissioning programmes) of the 2004 Act, and the completion of such programme has been confirmed by the Secretary of State in writing.
7 The provisions of section 72 (variation, suspension, revocation and transfer) of the 2009 Act apply to this marine licence except that the provisions of section 72(7) and (8) relating to the transfer of the licence only apply to a transfer not falling within article 7 (benefit of the Order).
8 With respect to any condition which requires the licensed activities be carried out in accordance with the plans, protocols or statements approved under this Schedule, the approved details, plan or scheme are taken to include any amendments that may subsequently be approved in writing by the MMO.
9 Any amendments to or variations from the approved details, plan or scheme must be in accordance with the principles and assessments set out in the environmental statement. Such agreement may only be given in relation to changes where it has been demonstrated to the satisfaction of the MMO that it is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.
PART 2 Conditions
Design parameters
10 The dimensions of any offshore platform forming part of the authorised development (excluding stowed cranes, helidecks, masts and auxiliary structures) must not exceed—
(a) 105 metres in height when measured from LAT;
(b) 125 metres in length; and
(c) 100 metres in width.
11 (1) Offshore substation platform foundation structures forming part of the authorised scheme must be one of either monopile foundations or jacket foundations.
(2) No offshore substation platform with a piled foundation may—
(a) employ more than 6 piles per foundation;
(b) in the case of monopile foundations, exceed a monopile diameter of 15 metres; or
(c) in the case of a two or more pile foundation, exceed a pile diameter of 4 metres per pile.
12 (1) The total length of the cables in Work Nos. 2, 2A and 3, and the volume of their cable protection (including cable crossings) must not exceed the following—
Work | Length | Cable protection
Work Nos. 2, 2A and 3 | 196 kilometres | 321,600 square metres 187,600 cubic metres
(2) Within 1600 metres seawards of MHWS, cable protection measures and cable protection remediation carried out as part of the must not include any use of loose rock or gravel.
Maintenance of the authorised development
13 (1) The undertaker may at any time maintain the authorised development, except to the extent that this licence or an agreement made under this licence provides otherwise.
(2) Maintenance works include but are not limited to—
(a) offshore electrical components;
(b) painting and applying other coatings;
(c) bird waste and marine growth removal;
(d) cable remedial burial;
(e) cable repairs and replacement;
(f) cable protection replenishment;
(g) access ladder and boat landing replacement; and
(h) J-tube repair/replacement.
(3) In undertaking activities under sub-paragraphs (2)(d), (e) and (f), other than in areas shown shaded in yellow on the Deep Water Route Cable Installation Area (Future Dredging depths) plan where navigable depth may not be reduced to any extent, the undertaker must not reduce water depth by more than 5% referenced to Chart Datum unless agreed with the MMO in writing following consultation with the MCA.
(4) An operation and maintenance plan substantially in accordance with the outline offshore operations and maintenance plan, and, in so far as is relevant, the principles of the outline cable installation and maintenance plan, must be submitted to the MMO for approval in consultation with the relevant SNCB and the MCA at least six months prior to the commencement of the operation of the licensed activities. All operation and maintenance activities must be carried out in accordance with the approved plan.
Vessels under the undertaker’s control
14 (1) The undertaker must issue to operators of vessels under its control operating within the Order limits a code of conduct in accordance with the provisions of the working in proximity to wildlife in the marine environment plan.
(2) The undertaker must ensure appropriate co-ordination of vessels within its control operating within the Order limits so as to reduce collision risk to other vessels including advisory safe passing distances for vessels.
Extension of time periods
15 Any time period given in this licence to either the undertaker or the MMO may be extended with the agreement of the other party in writing such agreement not to be unreasonably withheld or delayed.
Notifications and inspections
16 (1) The undertaker must ensure that—
(a) a copy of this marine licence (issued as part of the grant of the Order) and any subsequent amendments or revisions to it is provided to—
(i) all agents and contractors notified to the MMO in accordance with condition 26; and
(ii) the masters and offshore operations managers responsible for the vessels notified to the MMO in accordance with condition 26;
(b) within 28 days of receipt of a copy of this marine licence and any subsequent variations to it those persons referred to in sub-paragraph (1)(a) above must provide a completed confirmation form to the MMO confirming receipt of this marine licence.
(2) Only those persons and vessels notified to the MMO in accordance with condition 26 are permitted to carry out the licensed activities.
(3) Copies of this marine licence must also be available for inspection at the following locations—
(a) the undertaker’s registered address;
(b) any site office located at or adjacent to the construction site and used by the undertaker or its agents and contractors responsible for the loading, transportation or deposit of the authorised deposits; and
(c) on board each vessel and at the office of any offshore operations managers with responsibility for vessels from which authorised deposits or removals are to be made.
(4) The documents referred to in sub-paragraph (1)(a) must be available for inspection by an authorised enforcement officer at the locations set out in sub-paragraph (3)(b) above.
(5) The undertaker must ensure that a copy of this marine licence and any subsequent revisions or amendments has been read and understood by the masters of any vessel being used to carry on any licensed activity set out in condition 26(3), and that a copy of this marine licence is held on board any such vessel.
(6) The undertaker must provide access, and if necessary appropriate transportation, to the offshore construction site or any other associated works or vessels to facilitate any inspection that the MMO considers necessary to inspect the works during construction and operation of the authorised development.
(7) The undertaker must inform the MMO Local Office in writing at least five days prior to the commencement of the licensed activities and within five days of the completion of the licensed activity.
(8) The undertaker must inform the Kingfisher Information Service of details regarding the vessel routes, timings and locations relating to the construction of the authorised development or relevant stage thereof by notice via the Kingfisher Information Service portal https://kingfisherbulletin.org/submit-notice) and by email sent to kingfisher@seafish.co.uk—
(a) at least fourteen days prior to the commencement of offshore activities, for inclusion in the Kingfisher Fortnightly Bulletin and offshore hazard awareness data; and
(b) as soon as reasonably practicable, and in any event no later than 24 hours after completion of construction of all offshore activities, confirmation of notification must be provided to the MMO in writing within five days.
(9) The undertaker must ensure that a local notification to mariners is issued at least 14 days prior to the commencement of the authorised development or any relevant stage advising of the start date of Work Nos. 2, 2A and 3 and the expected vessel routes from the construction ports to the relevant location. Copies of all notices must be provided to the MMO, MCA and UK Hydrographic Office within five days of issue.
(10) The undertaker must ensure that local notifications to mariners are updated and reissued at weekly intervals during construction activities and at least five days before any planned operations and maintenance works and the notices must be supplemented with VHF radio broadcasts agreed with the MCA in accordance with the project environmental management plan approved under deemed marine licence condition 22(1)(d) and monitoring plan approved under condition 22(1)(f). Copies of all local notifications must be provided to the MMO and UK Hydrographic Office within five days of issue, save for in the case of a notice relating to operations and maintenance, which must be provided within 24 hours of issue.
(11) The undertaker must notify the UK Hydrographic Office of the commencement (within 14 days), progress and completion of construction (within 14 days) of the licensed activities in order that all necessary amendments to nautical and aeronautical charts are made and the undertaker must send a copy of such notifications to the MMO, MCA and PLA within five days of the notification.
(12) In case of damage to, or destruction or decay of, the authorised development seaward of MHWS or any part thereof, excluding the exposure of cables, the undertaker must as soon as reasonably practicable and no later than 24 hours following the undertaker becoming aware of any such damage, destruction or decay, notify the MMO, the MCA, PLA, Trinity House, the Kingfisher Information Service and the UK Hydrographic Office.
(13) In case of exposure of cables on or above the seabed, the undertaker must within three days following identification of a potential cable exposure, notify mariners and inform the Kingfisher Information Service of the location and extent of exposure. Copies of all notices must be provided to the MMO, the MCA, Trinity House and the UK Hydrographic Office within five days.
(14) The undertaker must notify the MMO in writing a minimum of five days in advance of the commencement of each discrete incident of cable repair, replacement, or protection replenishment activity. Such a notification must include proposed timings and a description of proposed methodologies.
(15) The undertaker must ensure that the MMO, the MMO Local Office, local mariners, local fishermen’s organisations, PLA and the Source Data Receipt Team at the UK Hydrographic Office, Taunton, Somerset, TA1 2DN (sdr@ukho.gov.uk) are notified within five days of completion of each instance of cable repair, replacement or protection replenishment activity.
Aids to navigation
17 (1) The undertaker must during the whole period from commencement of the licensed activities to completion of decommissioning of the authorised development seaward of MHWS exhibit such lights, marks, sounds, signals and other aids to navigation, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.
(2) The undertaker must during the period from the start of construction of the authorised scheme to completion of decommissioning of the authorised development seaward of MHWS keep Trinity House and the MMO informed in writing of progress of the authorised development seaward of MHWS including the following—
(a) notice of commencement of construction of the authorised development within 24 hours of commencement having occurred;
(b) notice within 24 hours of any aids to navigation being established by the undertaker; and
(c) notice within five days of completion of construction of the authorised development.
(3) The undertaker must provide reports to Trinity House on the availability of aids to navigation in accordance with the frequencies set out in the aids to navigation management plan agreed pursuant to condition 22(1)(h) using the reporting system provided by Trinity House.
(4) The undertaker must during the whole period from commencement of the licensed activities to completion of decommissioning of the authorised development seaward of MHWS notify Trinity House and the MMO in writing of any failure of the aids to navigation and the timescales and plans for remedying such failures, as soon as possible and no later than 24 hours following the undertaker becoming aware of any such failure.
(5) In the event that the provisions of condition16(12) or16(13) are invoked, the undertaker must lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as directed by Trinity House.
(6) Any jack up barges or vessels utilised during the licensed activities, when jacked up, must exhibit signals in accordance with the UK Standard Marking Schedule for Offshore Installations.
Colouring of structures
18 The undertaker must colour all offshore substation platform foundations yellow (colour code RAL 1023) from at least highest astronomical tide to a height directed by Trinity House, or must colour the structure as directed by Trinity House from time to time.
Aviation safety
19 (1) The undertaker must exhibit such lights, with such shape, colour and character as are required in writing by Air Navigation Order 2016 (with any reference to the territorial sea being read as a reference to the Renewable Energy Zone established under section 84 of the 2004 Act) and determined necessary for aviation safety as directed in writing by the Civil Aviation Authority, in consultation with the Defence Infrastructure Organisation Safeguarding. Lighting installed specifically to meet Ministry of Defence aviation safety requirements must remain operational for the life of the authorised development unless otherwise agreed in writing with the Ministry of Defence.
(2) The undertaker must notify the Defence Infrastructure Organisation Safeguarding, the Civil Aviation Authority and the MMO, at least 14 days prior to the commencement of the licensed activities, in writing of the following information—
(a) the date of the commencement of the licensed activities;
(b) the date any offshore electrical installations are to be installed;
(c) the maximum height of any construction equipment or vessels to be used;
(d) the maximum heights of offshore electrical installations to be constructed (including any antennae);
(e) the latitude and longitude of each offshore electrical installations to be constructed,
and the Defence Infrastructure Organisation Safeguarding and the Civil Aviation Authority must be notified of any changes to the information supplied under this paragraph of this condition and of the completion of the construction of the authorised development. Copies of notifications must be provided to the MMO.
Chemicals, drilling and debris
20 (1) Unless otherwise agreed in writing by the MMO all chemicals used in the construction of the authorised development must be selected from the List of Notified Chemicals approved for use by the offshore oil and gas industry under the Offshore Chemicals Regulations 2002 (as amended) as maintained by the Centre for Environment, Fisheries and Aquaculture Science.
(2) The undertaker must ensure that any coatings and/or treatments are suitable for use in the marine environment and are used in accordance with relevant guidelines approved by the Health and Safety Executive.
(3) The storage, handling, transport and use of fuels, lubricants, chemicals and other substances must be undertaken so as to prevent releases into the marine environment, including bunding of 110% of the total volume of all reservoirs and containers.
(4) The undertaker must inform the MMO of the location and quantities of material disposed of each month under the Order, by submission of a disposal return by 31 January each year for the months August to January inclusive, and by 31 July each year for the months February to July inclusive.
(5) The undertaker must ensure that only inert material of natural origin, produced during the drilling installation of or seabed preparation for foundations, vessels or cables and drilling mud is disposed of within the Order limits seaward of MHWS.
(6) The undertaker must ensure that any rock material used in the construction of the authorised scheme is from a recognised source, free from contaminants and containing minimal fines.
(7) In the event that any rock material used in the construction of the authorised development is misplaced or lost below MHWS, the undertaker must report the loss to the MMO Local Office in writing within 48 hours of becoming aware of it and if the MMO, in consultation with the MCA and Trinity House, reasonably considers such material to constitute a navigation or environmental hazard (dependent on the size and nature of the material) the undertaker must endeavour to locate the material and recover it at its own expense.
(8) The undertaker must ensure that no waste concrete slurry or wash water from concrete or cement works are discharged into the marine environment. Concrete and cement mixing and washing areas should be contained to prevent run off entering the marine environment through the freeing ports.
(9) The undertaker must ensure that any oil, fuel or chemical spill within the marine environment is reported in writing to the MMO, Marine Pollution Response Team in accordance with the marine pollution contingency plan agreed under condition 22(1)(d)(i)—
(a) debris or dropped objects which are considered a danger or hazard to navigation must be reported as soon as reasonably practicable but no later than six hours from the undertaker becoming aware of the incident, to the relevant HM Coastguard Maritime Rescue Co-ordination Centre by telephone, and the UK Hydrographic Office email navwarnings@btconnect.com;
(b) all dropped objects within the Order limits including those in sub-paragraph (a) above must be reported to the MMO, UKHO and HMCG using the Dropped Object Procedure Form (including any updated form as provided by the MMO) as soon as reasonably practicable and in any event within 24 hours following the undertaker becoming aware of an incident unless otherwise agreed in writing; and
(c) on receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side scan sonar) if reasonable to do so and the MMO may require obstructions to be removed from the seabed at the undertaker’s expense if reasonable to do so.
Force majeure
21 (1) If, due to stress of weather or any other cause the master of a vessel determines that it is necessary to deposit the authorised deposits within or outside of the Order limits because the safety of human life and/or of the vessel is threatened, within 48 hours full details of the circumstances of the deposit must be notified to the MMO in the manner provided in condition 20(9).
(2) The unauthorised deposits must be removed at the expense of the undertaker unless written approval is obtained from the MMO.
Pre-construction plans and documentation
22 (1) The licensed activities for each stage of construction of the authorised development must not commence until the following (insofar as relevant to that activity or stage of activity) has been submitted to and approved in writing by the MMO, in consultation with, where relevant, Trinity House, the MCA, in so far as it affects the Deep Water Routes the PLA, in so far as it affects the intertidal area, Essex County Council as the discharging authority for the purposes of Requirement 9 in Part 1 of Schedule 2 to the Order, the UK Hydrographic Office and the relevant SNCB—
(a) a design plan, prepared in accordance with the offshore project design principles document at a scale of between 1:25,000 and 1:50,000, or in such other format as may be appropriate, including detailed representation on the most suitably scaled chart, which shows for the relevant stage—
(i) the proposed location, including grid co-ordinates of the centre point of the proposed location for each offshore substation platform, subject to any micro-siting required due to anthropological constraints, environmental constraints or difficult ground conditions discovered post approval under this condition and choice of foundation types for all offshore electrical installations;
(ii) the dimensions of all offshore electrical installations to be installed, including any antennae;
(iii) the length and arrangement of cables comprised in Work Nos. 2, 2A and 3;
(iv) the type and dimensions of all foundations for the offshore substation platforms;
(v) the proposed layout of all offshore electrical installations including any exclusion zones identified under sub-paragraph (2)(d); and
(vi) any exclusion zones or micro-siting requirements identified in any mitigation plan pursuant to sub-paragraph (2)(d) or relating to any habitats of principal importance identified as part of surveys undertaken in accordance with condition 27,
to ensure conformity with the description of Work Nos. 2, 2A and 3 and compliance with conditions 10, 11 and 12 above;
(b) a construction programme to include details of—
(i) the proposed construction start date;
(ii) proposed timings for mobilisation of plant delivery of materials and installation works; and
(iii) an indicative written construction programme for all offshore electrical installations and cable comprised in the works at paragraphs 2 and 3 of Part 1 (licensed marine activities) of this Schedule (insofar as not shown in sub-paragraph (ii) above),
unless otherwise agreed in writing with the MMO;
(c) a construction method statement in accordance with the construction methods assessed in the environmental statement and including details for the relevant stage of—
(i) foundation installation methodology, including drilling methods and disposal of drill arisings and material extracted during seabed preparation for foundation and cable installation works and having regard to any mitigation scheme pursuant to sub-paragraph (1)(f);
(ii) contractors; and
(iii) associated ancillary works;
(d) a project environmental management plan in accordance with the outline project environmental management plan covering the period of construction for the relevant stage to include details of—
(i) a marine pollution contingency plan to address the risks, methods and procedures to deal with and report any spills and collision incidents of the authorised development in relation to all activities carried out;
(ii) a chemical risk register to include information regarding how and when chemicals are to be used, stored and transported in accordance with recognised best practice guidance;
(iii) a marine biosecurity plan detailing how the risk of introduction and spread of invasive non-native species will be minimised;
(iv) waste management and disposal arrangements; and
(v) a working in proximity to wildlife plan in accordance with the outline working in proximity to wildlife plan and including details of a best practice protocol for the protection of red throated divers restricting the laying of the electrical export cables forming part of Work No. 2(c) within, and in a 2km proximity to, the Outer Thames Estuary Special Protection Area between 1st November and 31st March (inclusive) in any year unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body following the submission by the undertaker of a red-throated diver deep water route mitigation strategy;
(e) details of proposed pre-construction monitoring surveys, construction monitoring, post-construction monitoring and related reporting in accordance with conditions 27, 28 and 30;
(f) in the event that driven or part-driven pile foundations are proposed to be used, a marine mammal mitigation protocol for that stage, in accordance with the outline marine mammal mitigation protocol, the intention of which is to prevent injury to marine mammals. The marine mammal mitigation protocol must include, following current best practice as advised by the relevant statutory nature conservation bodies, details of soft start procedures with specified duration periods and details of noise reduction methods through project design (primary measures) and deployment of noise abatement systems or noise reduction systems (secondary measures) that will be utilised to manage noise from those piling activities, including full details and justification for any mitigation chosen and / or excluded for deployment;
(g) a cable specification and installation plan for the relevant stage which accords with the principles of the outline cable specification and installation plan, to include—
(i) technical specification of offshore cables (including fibre optic cable) below MHWS within that stage, including a desk-based assessment of cable burial depth in accordance with good industry practice;
(ii) a detailed cable laying plan for the Order limits within that stage, incorporating a burial risk assessment encompassing the identification of any cable protection that exceeds 5% of navigable depth referenced to Chart Datum and, in the event that any area of cable protection exceeding 5% of navigable depth is identified, details of any steps (to be determined following consultation with the MCA and Trinity House) to be taken to ensure existing and future safe navigation is not compromised or similar such assessment to ascertain suitable burial depths and cable laying techniques, including cable protection;
(iii) proposals for the volume and areas of cable protection to be used for each cable crossing, and proposals for timing and methodology for reporting on actual volumes and areas post construction;
(iv) proposals for the cable laying methodology, volume and areas of cable protection within the Margate and Long Sands special area of conservation, and proposals for timing and methodology for reporting on actual volumes and areas post construction, in accordance with the Margate and Long Sands SAC benthic mitigation plan; and
(v) proposals for monitoring offshore cables including cable protection during the operational lifetime of the authorised development which includes a risk based approach to the management of unburied or shallow buried cables;
(h) an aids to navigation management plan to be agreed in writing by the MMO following consultation with Trinity House, to include details of how the undertaker will comply with the provisions of condition 17 relating to that stage for the lifetime of the authorised development;
(i) an offshore monitoring plan for the relevant stage which accords with the principles set out in the offshore in-principle monitoring plan setting out the circumstances in which monitoring will be required and the monitoring to be carried out in such circumstances;
(j) a navigation and installation plan for the relevant stage which accords with the principles set out in the outline navigation and installation plan;
(k) a fisheries liaison and co-existence plan for the relevant stage which accords with the principles set out in the outline fisheries liaison and co-existence plan; and
(l) a sediment disposal management plan for the relevant stage which accords with the principles set out in the outline sediment disposal management plan.
(2) Subject to sub-paragraph (3), the licensed activities or any relevant stage of those activities must not commence unless no later than six months prior to the commencement a marine written scheme of archaeological investigation for the stage in construction has been submitted to and approved by the MMO in writing, in accordance with the outline marine written schemes of investigation, and in accordance with industry good practice, in consultation with the statutory historic body to include—
(a) details of responsibilities of the undertaker, archaeological consultant and contractor;
(b) a method statement for further site investigation including any specifications for geophysical, geotechnical and diver or remotely operated vehicle investigations;
(c) archaeological analysis of survey data, and timetable for reporting, which is to be submitted to the MMO within six months of any survey being completed;
(d) delivery of any mitigation including, where necessary, identification and modification of archaeological exclusion zones prior to construction;
(e) monitoring of archaeological exclusion zones during and post construction, including provision of a report on such monitoring;
(f) a requirement for the undertaker to ensure that a copy of any agreed archaeological report is deposited with the National Record of the Historic Environment, by submitting a Historic England OASIS (‘online access to the index of archaeological investigations’) form with a digital copy of the report within six months of completion of construction of the authorised development, and to notify the MMO that the OASIS form has been submitted to the National Record of the Historic Environment within two weeks of submission;
(g) a reporting and recording protocol, designed in reference to the Offshore Renewables Protocol for Reporting Archaeological Discoveries as set out by the Crown Estate and reporting of any wreck or wreck material during construction, operation and decommissioning of the authorised development; and
(h) a timetable for all further site investigations, which must allow sufficient opportunity to establish a full understanding of the historic environment within the offshore Order limits and the approval of any necessary mitigation required as a result of the further site investigations prior to commencement of licensed activities.
(3) Pre-construction archaeological investigations and pre-commencement material operations which involve intrusive seabed works must only take place in accordance with a method statement produced under the written scheme of investigation specific to the relevant pre-construction activities (which must accord with the details set out in the outline marine written schemes of investigation) which has been submitted to and approved by the MMO in consultation with the statutory historic body.
(4) In the event that driven or part-driven pile foundations are proposed to be used, the hammer energy used to drive or part-drive monopile foundations must not exceed 7,000kJ and the hammer energy used to drive or part-drive pin pile foundations must not exceed 3,000kJ.
(5) No more than two main vessels may be engaged at any time in activities related to piling for the licenced activities. There will only be a maximum installation of two monopile foundations or 8 pin piles within a 24-hour period. It is possible for installation of the two piled foundations to occur concurrently i.e. within a 24-hour period at up to two locations within the area of Work No. 2 or up to two locations within the array. The two piled foundation locations may also be piled sequentially.
(6) Percussive piling associated with wind turbine generator foundations, together with cable laying or seabed preparation must not take place between 1 November to 24 January (inclusive) in any year within the southern array area for the protection of spawning herring unless otherwise agreed in writing by the MMO. For the purposes of this condition “southern array area” means the area identified as having medium to high confidence in terms of suitability for herring spawning within the heatmapping exercise detailed within the Fish and Shellfish Ecology Technical Baseline Report.
(7) The undertaker must, before submitting any pre-construction plans and documentation required under this condition, provide a copy of the plans and documentation to any other undertaker to whom part of the benefit of this Order has been transferred or leased pursuant to article 7 (benefit of the Order) of the Order.
(8) The undertaker to whom part of the benefit of the Order has been transferred or leased pursuant to article 7 (benefit of the Order) must provide any comments on the plans and documentation to the undertaker within 14 days of receipt.
(9) The undertaker must participate in liaison meetings as requested from time to time by the MMO in writing in advance and must consider such matters as are determined by the MMO relating to the efficient operation of a deemed marine licence issued under this Order (including as varied or transferred).
23 (1) Except where otherwise stated or agreed in writing with the MMO, each programme, statement, plan, protocol or scheme required to be approved under condition 22 (save for that required under condition 22(1)(f)) must be submitted for approval at least six months prior to the intended commencement of the relevant stage of the licensed activities.
(2) The pre-construction monitoring surveys, construction monitoring, post-construction monitoring and related reporting required under condition 22(1)(f) must be submitted in accordance with the following, unless otherwise agreed in writing with the MMO—
(a) at least six months prior to the first survey of the relevant stage, detail of any pre– construction surveys and an outline of all proposed monitoring;
(b) at least six months prior to construction, detail on construction monitoring; and
(c) at least six months prior to commissioning, detail of postconstruction (and operational) monitoring.
(3) The MMO must determine an application for approval made under condition 22 within a period of six months commencing on the date the application is received by the MMO, unless otherwise agreed in writing with the undertaker, such agreement not to be unreasonably withheld or delayed.
(4) The licensed activities must be carried out in accordance with the approved plans, protocols, statements, schemes and details approved under condition 22, unless otherwise agreed in writing by the MMO.
(5) The plans, protocols, statements, schemes and details submitted under condition 22 must ensure that any residual effects fall within the scope of those predicted in the environmental statement.
Site Integrity Plan
24 (1) No piling activities can take place until a southern north sea special area of conservation site integrity plan (“SIP”), which accords with the principles set out in the outline southern north sea special area of conservation site integrity plan has been submitted to, and approved in writing, by the MMO in consultation with the relevant statutory nature conservation body.
(2) The SIP submitted for approval must contain a description of the conservation objectives for the Southern North Sea Special Area of Conservation (“SNS SAC”) as well as any relevant management measures and it must set out the key statutory nature conservation body advice on activities within the SNS SAC relating to piling as set out within the JNCC Guidance and how this has been considered in the context of the authorised scheme.
(3) The SIP must be submitted in writing to the MMO no sooner than nine months and no later than six months prior to the commencement of piling activities.
(4) In approving the SIP the MMO must determine whether the authorised scheme at the preconstruction stage, in-combination with other plans and projects, would be in line with the JNCC Guidance.
(5) The approved SIP may be amended with the prior written approval of the MMO, in consultation with the relevant statutory nature conservation body, where the MMO determines that the authorised development, in-combination with other plans or projects at the pre-construction stage, is in line with the JNCC Guidance.
Offshore safety management
25 (1) No stage of the authorised development may commence until the MMO, in consultation with the MCA, has confirmed in writing that the undertaker has taken into account and adequately addressed all MCA recommendations as appropriate to the authorised development contained within MGN654 “Offshore Renewable Energy Installations (OREIs) – Guidance on UK Navigational Practice, Safety and Emergency Response Issues” and its annexes.
(2) No stage of the authorised development may commence until the MMO, in consultation with the MCA, has confirmed in writing that an emergency response co-operation plan has been prepared by the undertaker.
Reporting of engaged agents, contractors and vessels
26 (1) The undertaker must provide the following information to the MMO—
(a) the name, company number, address and function of any agent, contractor or subcontractor appointed to engage in the licensed activities not less than ten working days prior to such agent or contractor commencing any licensed activity; and
(b) each week during the construction of the authorised development a list of the vessels currently and to be used in relation to the licensed activities, including the master’s name, vessel type, vessel IMO number and vessel owner or operating company.
(2) Any changes to the supplied details must be notified to the MMO in writing prior to the agent, contractor or vessel engaging in the licensed activities.
(3) The undertaker must notify the MMO in writing not less than 24 hours prior to the commencement of major component exchanges, ladder replacements or cable related works—
(a) any agents, contractors or subcontractors that will carry out such works; and
(b) any vessel proposed to be used for such works, including the master’s name, vessel type, vessel IMO number and vessel owner or operating company.
Pre-construction monitoring and surveys
27 (1) The undertaker must in discharging condition 22(1)(e) for construction submit a monitoring plan in accordance with an offshore in principle monitoring plan for written approval by the MMO in consultation with the relevant statutory bodies, which must contain details of proposed surveys, including methodologies and timings, and a proposed format and content for a pre-construction baseline report and—
(a) the survey proposals must be in accordance with the principles set out in the offshore in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the post-construction position or will enable the validation or otherwise of key predictions in the environmental statement; and
(b) the baseline report proposals must ensure that the outcome of the agreed surveys together with existing data and reports are drawn together to present a valid statement of the preconstruction position, with any limitations, and must make clear what post-construction comparison is intended and the justification for this being required.
(2) Subject to receipt from the undertaker of specific proposals pursuant to this condition, the pre-construction survey proposals must comprise, in outline—
(a) (a full sea floor coverage swath–bathymetry survey that meets the requirements of IHO S44ed5 Order 1a, of the Order limits and a buffer outside to—
(i) determine the location, extent and composition of any biogenic or geogenic reef features, as set out within the offshore in-principle monitoring plan;
(ii) inform future navigation risk assessments as part of the cable specification and installation plan; and
(iii) inform the identification of any archaeological exclusion zone and post consent monitoring of any such archaeological exclusion zone;
(b) a bathymetric survey that meets the requirements of IHO S44ed5 Order 1a of the area within the Order Limits within which it is proposed to carry out construction works.
(3) The pre-construction survey(s) carried out pursuant to sub-paragraphs (2)(a)(ii) and (2)(b) must fulfil the requirements of MGN654 and its supporting ‘Hydrographic Guidelines for Offshore Renewable Energy Developer’ (as relevant).
(4) The undertaker must carry out the surveys specified within the monitoring plan or plans in accordance with that plan or plans, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
(5) Following completion of a survey carried out pursuant to this condition and prior to construction of the relevant stage, the undertaker must provide a report and full density data of the survey outcomes to the MMO, the relevant statutory nature conservation body, the MCA, the PLA and UK Hydrographic Office as relevant.
(6) In the event that the reports provided to the MMO under sub-paragraph (5) identify impacts which are unanticipated and/or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and/or adaptive management must be implemented and monitored in full. In the event that this alternative and/or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approve alternative and/or adaptive management, the undertaker shall only be required to undertake the alternative and/or adaptive management once the consent is granted.
(7) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Construction monitoring
28 (1) The undertaker must, in discharging condition 22(1)(e), submit a construction monitoring plan or plans for that stage in accordance with the offshore in principle monitoring plan for written approval by the MMO in consultation with the relevant statutory nature conservation body, which must include details of any proposed construction monitoring, including methodologies and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the pre-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement.
(2) Subject to receipt from the undertaker of specific proposals pursuant to this condition the construction monitoring plan must include, in outline—
(a) vessel traffic monitoring by automatic identification system for the duration of the construction period, with provision for a report to be submitted to the MMO, Trinity House, and the MCA annually during the construction period for the authorised development; and
(b) where driven or part-driven pile foundations are to be employed, unless otherwise agreed by the MMO in writing, details of proposed monitoring of the noise generated by the installation of at least four of the first 12 piled foundations of each piled foundation type to be installed collectively under this licence and the licence granted under Schedule 10 of the Order.
(3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
(4) In the event that the reports provided to the MMO under sub-paragraph (3) identify impacts which are unanticipated and/or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and/or adaptive management must be implemented and monitored in full. In the event that this alternative and/or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approve alternative and/or adaptive management, the undertaker shall only be required to undertake the alternative and/or adaptive management once the consent is granted.
(5) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Monitoring of underwater noise from piling
29 (1) In the event that driven or part-drive pile foundations are proposed, the monitoring plan submitted under condition 28(1) must include measurements of noise generated by the installation of at least four of the first twelve piled foundations of each piled foundation type to be installed unless agreed in writing by the MMO, in consultation with the relevant statutory nature conservation bodies.
(2) The results of the initial noise measurements monitored in accordance with sub-paragraph (1) must be provided in writing to the MMO within six weeks of the installation (unless otherwise agreed) of the first four of each piled foundation monitored in accordance with sub-paragraph (1). The assessment of this report by the MMO will determine whether any further noise monitoring is required. If in the reasonable opinion the MMO in consultation with the relevant statutory nature conservation body, determines that the assessment shows impacts significantly in excess to those assessed in the environmental statement and/or that there has been failures in the mitigation deployed, all piling activity must cease until either contingency measures approved within the marine management mitigation protocol have been implemented or an update to the marine mammal mitigation protocol and further monitoring requirements have been agreed.
Post-construction monitoring
30 (1) The undertaker must, in discharging condition 22(1)(e), submit a post-construction monitoring plan or plans for that stage in accordance with an offshore in principle monitoring plan for written approval by the MMO in consultation with the relevant statutory nature conservation body including details of proposed post-construction surveys, including methodologies (including appropriate buffers, where relevant) and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must be in accordance with the principles set out in the offshore in principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the preconstruction position and/or will enable the validation or otherwise of key predictions in the environmental statement.
(2) Subject to receipt of specific proposals the post-construction survey plan or plans must include, in outline—
(a) a bathymetric survey to monitor the effectiveness of archaeological exclusion zones. The data will be analysed by an accredited archaeologist as defined in the marine written scheme of archaeological investigation required under condition 22(2); and
(b) vessel traffic monitoring by automatic identification system for a duration of three consecutive years following the completion of construction of the authorised development, unless otherwise agreed in writing by the MMO, with provision for a report to be submitted annually to the MMO, Trinity House, and the MCA.
(3) The undertaker must carry out the surveys agreed under sub-paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation body.
(4) Within 12 weeks of completion of any cable repair or replacement works, the undertaker must undertake a post installation survey along the section of cable that has undergone repair or replacement to demonstrate the successful burial of the cable, and submit a report to the MMO, the MCA, and Trinity House in writing on its findings.
(5) In the event that the reports provided to the MMO under sub-paragraphs (3) and (4) identify impacts which are unanticipated and/or in the view of the MMO in consultation with the relevant statutory nature conservation body are significantly beyond those predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, an adaptive management plan to reduce effects to within what was predicted within the Environmental Statement, the Habitats Regulations Assessment, and the Marine Conservation Zone Assessment, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body, must be submitted by the undertaker. The adaptive management plan, intended to reduce effects to an agreed suitable level, must be approved in writing by the MMO in consultation with the relevant statutory nature conservation body. Any such approved alternative and/or adaptive management must be implemented and monitored in full. In the event that this alternative and/or adaptive management requires a separate consent, the undertaker must apply for such consent. Where a separate consent is required to undertake the approve alternative and/or adaptive management, the undertaker shall only be required to undertake the alternative and/or adaptive management once the consent is granted.
(6) Any monitoring report compiled in accordance with the monitoring schemes required under sub-paragraph (1) must be made publicly available and submitted (where relevant) to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre, and any relevant environmental recording schemes no later than six months following completion of the monitoring, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.
Timing of monitoring report
31 Any monitoring report compiled in accordance with the monitoring plans provided under conditions 27, 28 and 30 must be provided to the MMO no later than four months following receipt by the undertaker of the results of monitoring to which it relates, unless otherwise agreed with the MMO in writing.
Reporting of impact pile driving
32 (1) In the event that driven or part–driven pile foundations are proposed to be used as part of the foundation installation the undertaker must provide the following information to the Marine Noise Registry—
(a) prior to the commencement of each stage of construction of the licensed activities, information on the expected location, start and end dates of impact pile driving to satisfy the Marine Noise Registry’s Forward Look requirements;
(b) at six month intervals following the commencement of pile driving, information on the locations and dates of impact pile driving to satisfy the Marine Noise Registry’s Close Out requirements; and
(c) within 12 weeks of completion of impact pile driving, information on the locations and dates of impact pile driving to satisfy the Marine Noise Registry’s Close Out requirements.
(2) The undertaker must notify the MMO in writing of the successful submission of Forward Look or Close Out data pursuant to sub-paragraph (1) above within 7 days of the submission.
(3) For the purpose of this condition, “Forward Look” and “Close Out” mean the requirements as set out in the UK Marine Noise Registry Information Document Version 1 (July 2015) as amended, updated or superseded from time to time.
Maintenance reporting
33 (1) An annual maintenance report must be submitted to the MMO in writing within one month following the first anniversary of the date of commencement of operations, and every year thereafter until the permanent cessation of operation.
(2) The report must provide a record of the licensed activities as set out in condition 13 during the preceding year, the timing of activities and methodologies used.
(3) Every fifth year, the undertaker must submit to the MMO in writing, within one month of that date, a consolidated maintenance report, which will—
(a) include a review of licensed activities undertaken during the preceding five years with reference to the reports submitted in accordance with sub-paragraph(1) of this licence; and
(b) reconfirm the applicability of the methodologies and frequencies of the licensable activities permitted by this licence for the remaining duration of this licence.
Stages of construction
34 (1) The licenced activities must not be commenced until a written scheme setting out the stages of construction of the authorised development seaward of MHWS has been submitted to and approved by the MMO in writing.
(2) The scheme must be implemented as approved.
(3) The written scheme referred to in sub-paragraph (1) must be submitted to the MMO in writing four months prior to the planned commencement of the licenced activities.
Completion of construction
35 (1) The undertaker must submit a close out report in writing to the MMO and the relevant statutory nature conservation body within three months of the date of completion of construction. The close out report must confirm the date of completion of construction and must include the final number of installed offshore electrical installations.
(2) Following completion of construction, no further construction activities can be undertaken under this licence.
36 The undertaker must submit a close out report to the MCA and the UK Hydrographic Office within three months of the date of completion of construction. The close out report must confirm the date of completion of construction and must include the following—
(a) the final number of installed offshore electrical installations;
(b) a plan of the layout of installed offshore electrical installations; and
(c) latitude and longitude coordinates of the centre point of the location of each offshore electrical installation, provided as Geographical Information System data referenced to WGS84 datum.
Reporting cable protection
37 (1) Not more than four months following completion of the construction of the authorised development, the undertaker must provide the MMO and the relevant statutory nature conservation bodies with a report setting out details of the cable protection used for the authorised development.
(2) The report must include the following information—
(a) the location of cable protection;
(b) the volume of cable protection; and
(c) any other information relating to the cable protection as agreed between the MMO and the undertaker.
Deployment of cable protection
38 Any cable protection authorised under this licence must be deployed within 10 years from the date of the grant of the Order unless otherwise agreed by the MMO in writing.
Article 48
PART 1 Lesser Black Backed Gull
1 In this Part of this Schedule—
“the AOE SPA” means the site designated as the Alde-Ore Estuary Special Protection Area;
“compensation measure” means a measure which creates, improves, or restores LBBG habitat, and improves breeding success through predator control;
“LBBG” means lesser black-backed gulls (Larus fuscus);
“LIMP” means the lesser black-backed gull implementation and monitoring plan for the delivery of measures to compensate for the loss of lesser black-backed gulls from the AOE SPA as a result of the authorised development which shall accord with the principles identified in the outline LIMP;
“OOEG” means an Offshore Ornithology Engagement Group which has been or shall be established to assist, through consultation, the undertaker in the delivery of the compensation measure;
“outline LIMP” means the outline lesser black-backed gull implementation and monitoring plan certified as such by the Secretary of State for the purpose of this Order under article 43 (certification of plans, etc.).
2 No offshore works are to commence until a plan for the work of the OOEG has been submitted to and approved by the Secretary of State. Such a plan must include—
(a) the identify of, or the arrangements for the establishment of, the OOEG;
(b) the terms of reference of the OOEG;
(c) the membership of the OOEG, having regard to the requirements in paragraph 3;
(d) details of the proposed schedule of meetings, reporting and review periods;
(e) the dispute resolution mechanism and confidentiality provisions; and
(f) a schedule of preparation and delivery for the work of the OOEG.
3 (1) The undertaker must invite representatives from the following organisations to participate in the OOEG—
(a) the Marine Management Organisation;
(b) the relevant statutory nature conservation body;
(c) the relevant local planning authority for the area in which the compensation measure(s) is to be provided; and
(d) the landowner(s) of the site in which the compensation measure(s) is to be provided.
(2) The undertaker must invite representatives from the following organisations to participate as advisory members of the OOEG—
(a) the Royal Society for the Protection of Birds; and
(b) the relevant Wildlife Trust.
4 Prior to submitting the LIMP to the Secretary of State for approval under paragraph 6, the undertaker must carry out seasonally appropriate ecological surveys. The findings of these surveys must be submitted to and approved by the Secretary of State, in consultation with the relevant statutory nature conservation body and the relevant local planning authority for the area in which the compensation measure(s) is to be provided.
5 The surveys required under paragraph 4 must include—
(a) detailed surveys of the habitat, fauna, and flora within the red line boundary of the proposed compensation measure and suitable buffer area, including access points, undertaken at the optimal time(s) for each relevant species or habitat; and
(b) following analysis of findings, development of any necessary additional mitigation measures required to inform the LIMP, including monitoring post-installation to determine the success of the mitigation.
6 Following consultation with the OOEG, the LIMP must be submitted to and approved by the Secretary of State in consultation with the statutory nature conservation body and the relevant local planning authority for the area in which the compensation measure is to be provided.
7 The LIMP must be based on the strategy for LBBG compensation set out in the outline LIMP and must include—
(a) details of the location(s) where the compensation measure will be delivered and the suitability of that location (including details of its ability to provide the compensation quantum, as determined by the Secretary of State, of 127 breeding pairs of LBBG needed to compensate for the impact of the authorised development on the population of the AOE SPA);
(b) confirmation that the necessary landowner agreement(s), licences and approvals are in place;
(c) an implementation timetable for delivery of the compensation measure;
(d) details of maintenance programmes and biosecurity measures;
(e) details of ongoing monitoring and reporting of the effectiveness of the compensation measure including—
(i) survey methods;
(ii) survey programmes for LBBG and predators;
(iii) success criteria; and
(iv) timescales for the monitoring reports to be delivered to the OOEG and the Secretary of State under paragraph 11;
(f) details of any adaptive management measures, including details of the factors used to trigger any alternative and/or adaptive management measures;
(g) details of data-sharing including how monitoring and reporting data will be provided to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre(s), and relevant ecological recording schemes; and
(h) confirmation as to how it has had regard to the output of consultation with the OOEG and the provision of a signed OOEG agreement log.
8 The undertaker must implement the measures set out in the LIMP as approved by the Secretary of State, unless otherwise agreed by the Secretary of State in consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure(s) is to be provided.
9 No operation of any wind turbine generator forming part of the authorised development may begin until the LIMP has been implemented and completed (where appropriate) for at least three full breeding seasons. For the purposes of this paragraph each breeding season is 1 April to 31 August of each year (inclusive).
10 The undertaker must notify the Secretary of State of implementation of the compensation measure(s).
11 Results from the monitoring and reporting scheme referred to in paragraph 7(e)(iv) must be made publicly available and submitted at least annually to the Secretary of State and members of the OOEG. This must include details of the effectiveness of the compensation measure(s) delivered. If the undertaker, or on receipt of a monitoring report, the Secretary of State, determines that the compensation measure(s) delivered has been ineffective the undertaker must provide proposals agreed by the OOEG for any alternative and/or adaptive management measures to address this. Any proposals to address the ineffectiveness of the compensation measure(s) must thereafter be implemented by the undertaker as approved in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
12 The compensation measure(s) as approved in the LIMP must be maintained by the undertaker (or at its expense) for the operational lifetime of the authorised development and only decommissioned following approval in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
13 The LIMP approved under this Part of this Schedule includes any amendments that may subsequently be approved in writing by the Secretary of State. Any amendments to or variations of the approved LIMP must be in accordance with the principles set out in the outline LIMP and may only be approved where it has been demonstrated to the satisfaction of the Secretary of State that it is unlikely to give rise to any new or materially different environmental effects from those considered in the outline LIMP.
PART 2 Kittiwake
1 In this Part of this Schedule—
“compensation measure” means an onshore artificial nesting structure, designed to provide a suitable nesting environment for kittiwake;
“the FFC SPA” means the site designated as the Flamborough and Filey Coast Special Protection Area;
“KIMP” means the kittiwake implementation and monitoring plan for the delivery of measures to compensate for the loss of kittiwake from the FFC SPA as a result of the authorised development which shall accord with the principles identified in the outline KIMP;
“Marine Recovery Fund” means the fund to be established and operated pursuant to section 292 of the Energy Act 2023 for the implementation of strategic compensation or any equivalent fund established by a Government body for that purpose;
“Marine Recovery Fund Payment” means a contribution to the Marine Recovery Fund to compensate for the loss of kittiwake from the FFC SPA as a result of the authorised development, the sum of which will be agreed with Defra or other organisation responsible for the operation of the Marine Recovery Fund;
“OOEG” means an Offshore Ornithology Engagement Group which has been or shall be established to assist, through consultation, the undertaker in the delivery of the compensation measure; and
“outline KIMP” means the outline kittiwake implementation and monitoring plan certified as such by the Secretary of State for the purpose of this Order under article 43 (certification of plans, etc.).
2 (1) No offshore works are to commence until the undertaker has confirmed in writing to the Secretary of State that—
(a) it will make a Marine Recovery Fund Payment wholly in substitution for the kittiwake compensation measure and that it has received confirmation from Defra or the Marine Recovery Fund operator that suitable measures are available; or
(b) it will submit a KIMP to the Secretary of State for approval.
(2) If the undertaker confirms that it intends to make a Marine Recovery Fund Payment under sub-paragraph (1)(a) then no offshore works are to commence until the Secretary of State has provided consent in writing to the Marine Recovery Fund Payment being made in substitution for the kittiwake compensation measure.
Marine Recovery Fund
3 (1) Where the undertaker elects to make a Marine Recovery Fund Payment under paragraph 2(1)(a), no operation of any wind turbine generator forming part of the authorised development may begin until—
(a) the Marine Recovery Fund Payment has been quantified and the undertaker has entered into a contract to make a Marine Recovery payment to provide the compensation quantum, as determined by the Secretary of State, of 15.9 breeding pairs of kittiwake for the impact to the kittiwake feature of the FFC SPA;
(b) an implementation and monitoring plan has been submitted to and approved by the Secretary of State; and
(c) the full payment or the first payment in a series of instalments in accordance with the contract in sub-paragraph (a) has been made by the undertaker and the Secretary of State has confirmed in writing that such payment fulfils the requirement for compensation measures.
(2) Following receipt of the approvals under sub-paragraph (1) the undertaker shall not be required to implement any further compensation measures for kittiwake pursuant to this Part of this Schedule but this does not obviate the undertaker from its obligation to continue to comply with any payment schedule or any other conditions that form part of the contract entered into by the undertaker under paragraph 3(1)(a).
KIMP
4 Where the undertaker elects to submit a KIMP under paragraph 2(1)(b) no offshore works are to commence until a plan for the work of the OOEG has been submitted to and approved by the Secretary of State. Such a plan must include—
(a) the identify of, or the arrangements for the establishment of, the OOEG;
(b) the terms of reference of the OOEG;
(c) the membership of the OOEG, having regard to the requirements in paragraph 5;
(d) details of the proposed schedule of meetings, reporting and review periods;
(e) the dispute resolution mechanism and confidentiality provisions; and
(f) a schedule of preparation and delivery for the work of the OOEG.
5 (1) The undertaker must invite representatives from the following organisations to participate in the OOEG—
(a) the Marine Management Organisation;
(b) the relevant statutory nature conservation body;
(c) the relevant local planning authority for the area in which the compensation measure is to be provided; and
(d) the landowner(s) of the site in which the compensation measure is to be provided.
(2) The undertaker must invite representatives from the following organisations to participate as advisory members of the OOEG—
(a) the Royal Society for the Protection of Birds; and
(b) the relevant Wildlife Trust.
6 Following consultation with the OOEG, the KIMP must be submitted to and approved by the Secretary of State in consultation with the relevant statutory nature conservation body and the relevant local planning authority for the area in which the compensation measure is to be provided.
7 The KIMP (if required) must be based on the strategy for kittiwake compensation set out in the outline KIMP and must include—
(a) details of the location where the compensation will be delivered and the suitability of that location (including details of its ability to accommodate the number of breeding pairs of kittiwake needed to compensate for the impact of the authorised development on the population of the FFC SPA);
(b) confirmation that the necessary landowner agreement(s), licences and approvals are in place;
(c) an implementation timetable for delivery of the compensation measure, including any arrangements made with a third party for implementation of the compensation measure;
(d) details of maintenance and biosecurity programmes including any contribution to be made to a third party for the ongoing management and maintenance of the compensation measure delivered in collaboration with a third party;
(e) details of ongoing monitoring and reporting of the effectiveness of the compensation measure including—
(i) survey methods;
(ii) survey programmes for kittiwake and predators;
(iii) success criteria; and
(iv) timescales for the monitoring reports to be delivered to the OOEG and the Secretary of State under paragraph 13;
(f) details of any adaptive management measures, including details of the factors used to trigger any alternative and/or adaptive management measures;
(g) details of data-sharing including how monitoring and reporting data will be provided to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre(s), and relevant ecological recording schemes; and
(h) confirmation as to how it has had regard to the output of consultation with the OOEG and the provision of a signed OOEG agreement log.
8 Where the KIMP identifies the provision of an artificial nesting structure in collaboration with one or more other offshore wind farm projects, the KIMP must, in addition to the information set out in paragraph 7, identify how the effectiveness of the compensation measures and any requirement for adaptive management measures are to be attributed to the authorised development.
9 The undertaker must implement the measures set out in the KIMP as approved by the Secretary of State, unless otherwise agreed by the Secretary of State in consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure is to be provided.
10 No operation of any wind turbine generator forming part of the authorised development may begin until the KIMP has been implemented and completed (where appropriate) for at least three full breeding seasons. For the purposes of this paragraph each breeding season is 1 March to 31 August of each year (inclusive).
11 The undertaker must notify the Secretary of State of implementation of the compensation measure.
12 The compensation measure as approved in the KIMP must be maintained by the undertaker (or at its expense) for the operational lifetime of the authorised development and only decommissioned following approval in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
13 Results from the monitoring and reporting scheme referred to in paragraph 7(e)(iv) must be made publicly available and submitted at least annually to the Secretary of State and members of the OOEG. This must include details of the effectiveness of the compensation measure delivered. If the undertaker, or on receipt of a monitoring report, the Secretary of State, determines that the compensation measure delivered has been ineffective the undertaker must provide proposals agreed by the OOEG for any alternative and/or adaptive management measures to address this. Any proposals to address the ineffectiveness of the compensation measure must thereafter be implemented by the undertaker as approved in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
14 The KIMP approved under this Part of this Schedule includes any amendments that may subsequently be approved in writing by the Secretary of State. Any amendments to or variations of the approved KIMP must be in accordance with the principles set out in the outline KIMP and may only be approved where it has been demonstrated to the satisfaction of the Secretary of State that it is unlikely to give rise to any new or materially different environmental effects from those considered in the outline KIMP.
PART 3 Guillemot
1 In this Part of this Schedule—
“compensation measure” means the funding, provision or support of management measures at guillemot colonies in the southwest of England including: recreational disturbance reduction; wardening; signage; education; visitor access statements; and engagement with local businesses and organisations;
“the FFC SPA” means the site designated as the Flamborough and Filey Coast Special Protection Area;
“GCIMP” means a guillemot compensation implementation and monitoring plan for the delivery of measures to compensate for the loss of guillemot from the FFC SPA and Farne Islands Special Protection Area;
“Marine Recovery Fund” means the fund to be established and operated by Defra pursuant to section 292 of the Energy Act 2023 for the implementation of strategic compensation or any equivalent fund established by a Government body for that purpose;
“Marine Recovery Fund Payment” means a contribution to the Marine Recovery Fund to compensate for the loss of adult guillemot and razorbill from the FFC SPA and Farne Islands Special Protection Area as a result of the authorised development, the sum of which will be agreed with Defra or other organisation responsible for the operation of the Marine Recovery Fund;
“OOEG” means an Offshore Ornithology Engagement Group which has been or shall be established to assist, through consultation, the undertaker in the delivery of the compensation measure; and
“outline GRIMP” means the outline guillemot and razorbill implementation and monitoring plan certified as such by the Secretary of State for the purpose of this Order under article 43 (certification of plans, etc.).
2 (1) No offshore works are to commence until the undertaker has confirmed in writing to the Secretary of State that—
(a) it will make a Marine Recovery Fund Payment wholly in substitution for the guillemot compensation measure and that it has received confirmation from Defra or the Marine Recovery Fund operator that suitable measures are available; or
(b) it will submit the GCIMP(s) to the Secretary of State for approval.
(2) If the undertaker confirms that it intends to make a Marine Recovery Fund Payment under sub-paragraph (1)(a) then no offshore works are to commence until the Secretary of State has provided consent in writing to the Marine Recovery Fund Payment being made in substation for the guillemot compensation measure.
(3) If the undertaker confirms that it intends to submit GCIMP(s) under sub-paragraph (1)(b) then a separate GCIMP must be submitted for each site on which the compensation measure is to be delivered.
Marine Recovery Fund
3 (1) Where the undertaker elects to make a Marine Recovery Fund Payment under paragraph 2(1)(a), no operation of any wind turbine generator forming part of the authorised development may begin until—
(a) the Marine Recovery Fund Payment has been quantified and the undertaker has entered into a contract to make a Marine Recovery payment to provide the compensation quantum, as determined by the Secretary of State, of 30.23 breeding pairs of guillemot for the FFC SPA and 25.59 breeding pairs of guillemot for the Farne Islands Special Protection Area;
(b) an implementation and monitoring plan has been submitted to and approved by the Secretary of State; and
(c) the full payment or the first payment in a series of instalments in accordance with the contract under sub-paragraph (a) has been made by the undertaker and the Secretary of State has confirmed in writing that such payment fulfils the requirement for compensation measures.
(2) Following receipt of the approvals under sub-paragraph (1) the undertaker shall not be required to implement any further compensation measures for guillemot pursuant to this Part of this Schedule but this does not obviate the undertaker from its obligation to continue to comply with any payment schedule or any other conditions that form part of the contract entered into by the undertaker in accordance with paragraph 3(1)(a).
GCIMP(s)
4 Where the undertaker elects to submit one or more GCIMP(s) under paragraph 2(1)(b) no offshore works are to commence until a plan for the work of the OOEG has been submitted to and approved by the Secretary of State. Such a plan must include—
(a) the identify of, or the arrangements for the establishment of, the OOEG;
(b) the terms of reference of the OOEG;
(c) the membership of the OOEG, having regard to the requirements in paragraph 5;
(d) details of the proposed schedule of meetings, reporting and review periods;
(e) the dispute resolution mechanism and confidentiality provisions; and
(f) a schedule of preparation and delivery for the work of the OOEG.
5 (1) The undertaker must invite representatives from the following organisations to participate in the OOEG—
(a) the Marine Management Organisation;
(b) the relevant statutory nature conservation body;
(c) the relevant local planning authority for the area in which the compensation measure is to be provided; and
(d) the landowner(s) of the site in which the compensation measure is to be provided.
(2) The undertaker must invite representatives from the following organisations to participate as advisory members of the OOEG—
(a) the Royal Society for the Protection of Birds; and
(b) the relevant Wildlife Trust.
6 Following consultation with the OOEG, the GCIMP(s) must be submitted to and approved by the Secretary of State in consultation with the relevant statutory nature conservation body and the relevant local planning authority for the area in which the compensation measure is to be provided.
7 The GCIMP(s) (if required) must be based on the strategy for guillemot compensation set out in the outline GRIMP and each must include—
(a) details of the location(s) where the relevant compensation measure will be delivered and the suitability of that location (including details of its ability to accommodate the number of breeding pairs of guillemot needed to compensate for the impact of the authorised development on the population of the FFC SPA and Farne Islands Special Protection Area);
(b) confirmation that the necessary landowner agreement(s), licences and approvals are in place;
(c) an implementation timetable for delivery of the relevant compensation measure, including any arrangements made with a third party for implementation of the measures provided;
(d) details of maintenance and biosecurity programmes including any contribution to be made to a third party for the ongoing management and maintenance of the compensation measure delivered in collaboration with a third party;
(e) details of ongoing monitoring and reporting of the effectiveness of the compensation measure including—
(i) survey methods;
(ii) survey programmes for guillemot and predators;
(iii) success criteria; and
(iv) timescales for the monitoring reports to be delivered to the OOEG and the Secretary of State under paragraph 13;
(f) details of any adaptive management measures, including details of the factors used to trigger any alternative and/or adaptive management measures;
(g) details of data-sharing including how monitoring and reporting data will be provided to The Crown Estate Marine Data Exchange, the relevant Local Environmental Records Centre(s), and relevant ecological recording schemes; and
(h) confirmation as to how it has had regard to the output of consultation with the OOEG and the provision of a signed OOEG agreement log.
8 Where the GCIMP(s) identify the funding, provision or support of management measures at guillemot colonies in collaboration with one or more other offshore wind farm projects, the GCIMP(s) must, in addition to the information set out in paragraph 7, identify how the effectiveness of the compensation measures and any requirement for adaptive management measures are to be attributed to the authorised development.
9 The undertaker must implement the measures set out in the GCIMP(s) as approved by the Secretary of State, unless otherwise agreed by the Secretary of State in consultation with the relevant statutory nature conservation body and the local planning authority for the area in which the compensation measure is to be provided.
10 No operation of any wind turbine generator forming part of the authorised development may begin until the GCIMP(s) have been implemented and completed (where appropriate).
11 The undertaker must notify the Secretary of State of implementation of the compensation measure.
12 The compensation measure as approved in the GCIMP(s) must be maintained by the undertaker (or at its expense) for the operational lifetime of the authorised development and only decommissioned following approval in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
13 Results from the monitoring and reporting scheme referred to in paragraph 7(e)(iv) must be made publicly available and submitted at least annually to the Secretary of State and members of the OOEG. This must include details of the effectiveness of the compensation measure delivered. If the undertaker, or on receipt of a monitoring report, the Secretary of State, determines that the compensation measure delivered has been ineffective the undertaker must provide proposals agreed by the OOEG for any alternative and/or adaptive management measures to address this. Any proposals to address the ineffectiveness of the compensation measure must thereafter be implemented by the undertaker as approved in writing by the Secretary of State in consultation with the relevant statutory nature conservation body.
14 The GCIMP(s) approved under this Part of this Schedule includes any amendments that may subsequently be approved in writing by the Secretary of State. Any amendments to or variations of the approved GCIMP(s) must be in accordance with the principles set out in the outline GRIMP in relation to guillemot and may only be approved where it has been demonstrated to the satisfaction of the Secretary of State that it is unlikely to give rise to any new or materially different environmental effects from those considered in the outline GRIMP.
PART 4 Benthic
1 In this Part of this Schedule—
“Marine Recovery Fund” means the fund to be established and operated pursuant to section 292 of the Energy Act 2023 for the implementation of strategic compensation or any equivalent fund established by a Government body for that purpose;
“Marine Recovery Fund Payment” means a contribution to the Marine Recovery Fund to compensate for impacts on protected features of the MLS SAC as a result of the authorised development, the sum of which will be agreed with Defra or other organisation responsible for the operation of the Marine Recovery Fund; and
“the MLS SAC” means the site designated as the Margate and Long Sands Special Area of Conservation.
2 No installation of cable protection measures forming part of the offshore works within the MLS SAC are to commence until—
(a) the undertaker has received confirmation from Defra or the operator of the Marine Recovery Fund that suitable measures are available to provide the compensation quantum, as determined by the Secretary of State, of 5,400m2 for the impact to the sandbanks which are slightly covered by seawater all the time, feature of the MLS SAC;
(b) the Marine Recovery Fund Payment has been quantified and the undertaker has entered into a contract to make a Marine Recovery Fund payment;
(c) an implementation and monitoring plan has been submitted to and approved by the Secretary of State; and
(d) the full payment or the first payment in a series of instalments in accordance with the contract under sub-paragraph (b) has been made by the undertaker and the Secretary of State has confirmed in writing that such payment fulfils the requirement for compensation measures under this Part of this Schedule.
3 Following receipt of the approvals under paragraph 2 the undertaker shall not be required to implement any further compensation measures for the impacts to the MLS SAC pursuant to this Part of this Schedule but this does not obviate the undertaker from its obligation to continue to comply with any payment schedule or any other conditions that form part of the contract by the undertaker under paragraph 2(a).
Article 47
Primary objective
1 (1) The primary objective of these arbitration rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within four months from the date the arbitrator is appointed pursuant to article 47 (arbitration) of the Order.
(2) The parties must first use their reasonable endeavours to settle a dispute amicably through negotiations undertaken in good faith by the senior management of the parties. Any dispute which is not resolved amicably by the senior management of the parties within twenty business days of the dispute arising, or such longer period as agreed in writing by the parties, will be subject to arbitration in accordance with the terms of this Schedule.
(3) The arbitration will be deemed to have commenced when a party (the “claimant”) serves a written notice of arbitration on the other party (the “respondent”).
Time periods
2 (1) All time periods in these arbitration rules will be measured in business days and this will exclude weekends and bank holidays.
(2) Time periods will be calculated from the day after the arbitrator is appointed which will be either—
(a) the date the arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or
(b) the date the arbitrator is appointed by the Secretary of State.
Timetable
3 (1) The timetable for the arbitration will be that set out in sub-paragraphs (2) to (4) below unless amended in accordance with paragraph 5(3).
(2) Within 15 days of the arbitrator being appointed, the claimant must provide both the respondent and the arbitrator with—
(a) a written statement of claim which describes the nature of the difference between the parties, the legal and factual issues, the claimant’s contentions as to those issues, and the remedy it is seeking; and
(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.
(3) Within 15 days of receipt of the claimant’s statements under sub-paragraph (2) by the arbitrator and respondent, the respondent must provide the claimant and the arbitrator with—
(a) a written statement of defence responding to the claimant’s statement of claim, its statement in respect of the nature of the difference, the legal and factual issues in the claimant’s claim, its acceptance of any element(s) of the claimant’s claim, its contentions as to those element(s) of the claimant’s claim it does not accept;
(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports; and
(c) any objections it wishes to make to the claimant’s statements, comments on the claimant’s expert report(s) (if submitted by the claimant) and explanations for the objections.
(4) Within five days of the respondent serving its statements sub-paragraph (3), the claimant may make a statement of reply by providing both the respondent and the arbitrator with—
(a) a written statement responding to the respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;
(b) all statements of evidence and copies of documents in response to the respondent’s submissions;
(c) any expert report in response to the respondent’s submissions;
(d) any objections to the statements of evidence, expert reports or other documents submitted by the respondent; and
(e) its written submissions in response to the legal and factual issues involved.
Procedure
4 (1) The arbitrator must make an award on the substantive difference based solely on the written material submitted by the parties unless the arbitrator decides that a hearing is necessary to explain or resolve any matters.
(2) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.
(3) Within five days of receiving the last submission, the arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.
(4) Within ten days of the arbitrator advising the parties that he will hold a hearing, the date and venue for the hearing must be fixed by agreement with the parties, save that if there is no agreement the arbitrator must direct a date and venue which he considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the arbitrator’s direction confirming the date and venue of the hearing.
(5) A decision must be made by the arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the arbitrator, then any expert(s) attending the hearing may be asked questions by the arbitrator.
(6) There will be no process of examination and cross-examination of experts, but the arbitrator will invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the arbitrator’s questions. Prior to the hearing the procedure for the expert(s) will be that—
(a) at least 20 days before a hearing, the arbitrator will provide a list of issues to be addressed by the expert(s);
(b) if more than one expert is called, they will jointly confer and produce a joint report or reports within ten days of the issues being provided; and
(c) the form and content of a joint report will be as directed by the arbitrator and must be provided at least five days before the hearing.
(7) Within ten days of a hearing or a decision by the arbitrator that no hearing is to be held the parties may by way of exchange provide the arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The arbitrator must take these submissions into account in the award.
(8) The arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which they are appointed, unless both parties otherwise agree to an extension to the date for the award.
(9) If a party fails to comply with the timetable, procedure or any other direction then the arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before them attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction.
(10) The arbitrator’s award must include reasons. The parties will accept that the extent to which reasons are given is to be proportionate to the issues in dispute and the time available to the arbitrator to deliver the award.
Arbitrator’s powers
5 (1) The arbitrator has all the powers of the Arbitration Act 1996, including the non-mandatory sections, save where modified by these rules.
(2) There will be no discovery or disclosure, except that the arbitrator has the power to order the parties to produce such documents as are reasonably requested by another party no later than the statement of reply, or by the arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing.
(3) Any time limits fixed in accordance with this procedure or by the arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the arbitrator. In the absence of agreement, the arbitrator may vary the timescales and/or procedure—
(a) if the arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice; and then
(b) only for such a period that is necessary to achieve fairness between the parties.
(4) On the date the award is made, the arbitrator must notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the arbitrator’s fees and expenses.
Costs
6 (1) The costs of the arbitration must include the fees and expenses of the arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the arbitration.
(2) Subject to sub-paragraph (3), the arbitrator will award recoverable costs on the general principle that each party should bear its own costs.
(3) The arbitrator may depart from the general principle in sub-paragraph (2) and make such other costs award as it considers reasonable where a party has behaved unreasonably as defined within the National Planning Practice Guidance or such other guidance as may replace it.
Confidentiality
7 (1) Subject to sub-paragraphs (2) and (3), any arbitration hearing and documentation shall be open to and accessible by the public.
(2) The arbitrator may direct that the whole or part of a hearing is to be private or any documentation to be confidential where it is necessary in order to protect commercially sensitive information.
(3) Nothing in this paragraph prevents any disclosure of a document by a party pursuant to an order of a court in England and Wales or where disclosure is required under any enactment.
Article 43
The following documents in Table 1 of this schedule are the list referred to in article 43
Table 1
Document Number | Name | Version | Date
2.1 | Location plan - Onshore | Revision B | September 2024
2.2 | Location plan - Offshore | Revision B | September 2024
2.3 | Land plans (Onshore) | Revision G | July 2025
2.4 | Special Category Land Plans | Revision D | June 2025
2.5 | Works Plans - Onshore | Revision D | February 2025
2.6 | Works plans - Offshore | Revision B | October 2024
2.7 | Offshore Order Limits and Grid Coordinates Plan | Revision B | September2024
2.8 | Street Works and Access Plan | Revision C | January 2025
2.9 | Temporary closure of Public Rights of Way Plan | Revision D | February 2025
2.10 | Tree Preservation Order and Hedgerow Plan | Revision B | September 2024
2.11 | Historic Environment Plan - Onshore | Revision B | September2024
2.12 | Historic Environment Plan - Offshore | Revision A | March 2024
2.13 | Statutory or Non-Statutory Sites and Features of Nature Conservation -Onshore | Revision B | September2024
2.14 | Statutory or Non-Statutory Sites and Features of Nature Conservation - Offshore | Revision A | March 2024
2.15 | Water Bodies in a River Basin Management Plan | Revision B | October 2024
2.16 | Crown Land Plan - Offshore | Revision A | March 2024
2.17 | Crown Land Plan (Onshore) | Revision E | June2025
2.18 | Temporary Speed Reduction Plan | Revision C | December 2024
4.1 | Book of Reference | Revision H | July 2025
5.4.5 | Lesser Black Backed Gull Habitats Regulation Assessment | Revision D | March 2025
5.5.6 | Lesser Black-Backed Gull Implementation and Monitoring Plan | Revision E | August 2025
5.5.7 | Kittiwake Implementation and Monitoring Plan | Revision F | October 2025
5.5.8 | Guillemot and Razorbill Implementation and Monitoring Plan | Revision F | September 2025
8.1 | Cable Statement | Revision A | March 2024
8.2 | Safety Zone Statement | Revision A | March 2024
9.3 | Offshore Project Design Principles | Revision A | March 2024
9.4 | Onshore Substation Design Principles Document | Revision C | March 2025
9.12 | Outline Cable Specification and Installation Plan | Revision D | March 2025
9.13 | Margate and Long Sands SAC Benthic Mitigation Plan | Revision H | September 2025
9.14.1 | Outline Marine Mammal Mitigation Protocol - Piling | Revision E | August 2025
9.14.2 | Outline Marine Mammal Mitigation Protocol - UXO | Revision F | August 2025
9.15 | Outline Southern North Sea Special Area of Conservation Site Integrity Plan | Revision B | February 2025
9.16 | Outline Fisheries Liaison and Co-existence Plan | Revision D | February 2025
9.17 | Outline Offshore Operations and Maintenance Plan | Revision A | March 2024
9.18 | Outline Project Environmental Management Plan | Revision A | March 2024
9.18.1 | Working in proximity to Wildlife in the Marine Environment | Revision C | August 2025
9.19 | Outline Marine Written Schemes of Investigation | Revision C | December 2024
9.20 | Outline Navigation and Installation Plan | Revision D | March 2025
9.21 | Code of Construction Practice | Revision G | October 2025
9.22 | Outline Landscape and Ecological Management Plan | Revision H | October 2025
9.23 | Outline Onshore Written Scheme of Investigation | Revision B | March 2025
9.24 | Outline Construction Traffic Management Plan | Revision F | March 2025
9.25 | Outline Public Access Management Plan | Revision D | March 2025
9.26 | Outline Workforce Travel Plan | Revision C | March 2024
9.27 | Outline Skills and Employment Strategy | Revision A | March 2024
9.32 | Offshore In-Principle Monitoring Plan | Revision I | October 2025
10.30 | Outline Sediment Disposal Management Plan | Revision D | March 2025
10.47 | Archaeological mitigation strategy | Revision B | March 2025
10.51 | Deep Water Route Cable Installation Area (Future Dredging depths) | Version 3 | February 2025
10.65 | Outline groundwater monitoring plan | Revision A | March 2025
Environmental Statement
6.1.1 | Introduction | Revision A | March 2024
6.1.2 | Policy & Legislation | Revision A | March 2024
6.1.3 | EIA Methodology | Revision A | March 2024
6.1.3.1 | Cumulative Effects Assessment Methodology | Revision B | December 2024
6.1.3.2 | Transboundary Screening | Revision A | March 2024
6.1.4 | Site Selection and Alternatives | Revision A | March 2024
6.1.5 | Non-Technical Summary | Revision A | March 2024
6.1.6 | Scoping Report and Scoping Opinion | Revision A | March 2024
6.2.1 | Offshore Project Description | Revision A | March 2024 (for avoidance of doubt because of a discrepancy of cover sheet showing 2023)
6.2.1.1 | Detailed Offshore Project Design Envelope | Revision A | March 2024
6.2.2 | Marine Geology, Oceanography and Physical processes | Revision A | March 2024
6.2.3 | Marine Water and Sediment Quality | Revision A | March 2024
6.2.4 | Offshore Ornithology | Revision A | March 2024
6.2.5 | Benthic and Intertidal Ecology | Revision B | September 2025
6.2.6 | Fish and Shellfish Ecology | Revision B | September 2025
6.2.7 | Marine Mammal Ecology | Revision A | March 2024
6.2.8 | Commercial Fisheries | Revision A | March 2024
6.2.9 | Shipping and Navigation | Revision A | March 2024
6.2.10 | Seascape, Landscape and Visual | Revision A | March 2024
6.2.11 | Offshore Archaeology and Cultural Heritage | Revision A | March 2024
6.2.12 | Infrastructure and Other Marine Users | Revision B | September 2024
6.2.13 | Military and Civil Aviation | Revision A | March 2024
6.3.1 | Onshore Project Description | Revision C | October 2024
6.3.2 | Onshore Landscape and Visual Impact Assessment | Revision A | March 2024
6.3.3 | Socio-Economic, Tourism and Recreation | Revision A | March 2024
6.3.4 | Onshore Biodiversity and Nature Conservation | Revision B | September 2025
6.3.5 | Ground Conditions and Land Use | Revision A | March 2024
6.3.6 | Hydrology, Hydrogeology and Flood Risk | Revision A | March 2024
6.3.7 | Archaeology and Cultural Heritage | Revision A | March 2024
6.3.8 | Traffic and Transport | Revision D | March 2025
6.3.9 | Airborne Noise and Vibration | Revision A | March 2024
6.3.10 | Air Quality | Revision A | March 2024
6.4.1 | Climate Change | Revision A | March 2024
6.4.1.1 | Greenhouse Gas Assessment | Revision A | March 2024
6.4.2 | Human Health and Major Disasters | Revision B | April 2024
6.4.3 | Inter-Relationships | Revision A | March 2024
6.6.4.18 | Onshore Biodiversity Net Gain Indicative Design Stage Report | Revision B | February 2025
6.8.1 | Lesser Black Backed Gull Compensatory Areas Environmental Assessment | Revision C | December 2024
6.8.1.1 | Lesser Black Backed Gull Compensatory Areas Flood Risk Assessment | Revision B | October 2024
6.8.1.2 | Lesser Black Backed Gull Landscape and Visual Impact Assessment | Revision B | October 2024
6.8.1.3 | Lesser Blacked Backed Gull Compensation Site - Ecological Impact Assessment | Revision C | December 2024
10.75 | Supplementary Operations and Maintenance Assessment | Revision A | August 2025
10.76 | Technical Memo on Revised Environment Agency Flood Mapping | Revision A | August 2025