PART 7MISCELLANEOUS AND GENERAL

Disapplication of legislative provisions, etc.

53.—(1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and within any maintenance period defined in article 36(13), any maintenance of the authorised development—

(a)sections 66 to 75 of the 1968 Act except where paragraph (5) applies;

(b)sections 141 (restriction on planting of trees etc. in or near carriageway), 169 (control of scaffolding on highways), 171 (control of deposit of building materials and making of excavations in streets), and 172 (hoardings to be set up during building etc.) of the 1980 Act;

(c)the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 to the Water Resources Act 1991(1);

(d)sections 23 (prohibition of obstructions, etc. in watercourses), 30 (authorisation of drainage works in connection with a ditch) and 32 (variation of awards) of the Land Drainage Act 1991(2);

(e)the provisions of any byelaws made under section 66 (powers to make byelaws) of the Land Drainage Act 1991; and

(f)regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(3) in respect of a flood risk activity.

(2) The provisions of the Neighbourhood Planning Act 2017(4), insofar as they relate to temporary possession of, or entry onto, land under this Order, do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within the maintenance period defined in article 36(13), any maintenance of any part of the authorised development.

(3) Following the expiry of any maintenance period defined in article 36(13), the requirement under the 1968 Act to obtain a works licence under section 66 (licensing of works) of that Act does not apply to anything done within any structure forming part of the authorised development in connection with the operation or maintenance of the authorised development, or any other function of the undertaker in its capacity as a highway authority except where paragraph (4) applies.

(4) This paragraph applies where the undertaker seeks to carry out, construct or maintain any utility works beneath the riverbed of the river Thames which are not required directly or solely in connection with the construction, operation and maintenance of the highway that forms part of the authorised development.

(5) The provisions of the Allotments Act 1922(5) do not apply to the exercise by the undertaker of any functions under this Order.

(6) Despite the provisions of section 208 (liability) of the 2008 Act, for the purposes of regulation 6 (meaning of “development”) of the Community Infrastructure Levy Regulations 2010(6) any building comprised in the authorised development is deemed to be—

(a)a building into which people do not normally go; or

(b)a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.

(7) Nothing in this Order is to prejudice the operation of, and the exercise of powers and duties of the undertaker, a statutory undertaker or the Secretary of State under the 1980 Act, the 1991 Act, the 2000 Act and the Town and Country Planning (General Permitted Development) (England) Order 2015(7).

Designation of fen land

54.—(1) Unless otherwise agreed with the Secretary of State following consultation by the undertaker with Natural England and subject to paragraph (2), from the specified date Fen land A and Fen land B are to be treated as though they were a manorial waste for the purposes of section 193 (rights of the public over commons and waste lands) of the Law Property Act 1925(8) and this Order is to be treated as a scheme under section 193(1)(a) of that Act in connection with that manorial waste.

(2) Notwithstanding paragraph (1), the undertaker may restrict or regulate access to, or erect structures on, Fen land A or Fen land B where reasonably necessary for public safety or in the case of an emergency.

(3) In this article—

“emergency” means any circumstance whether existing or imminent, which the undertaker considers is likely to cause danger to persons or property.

“Fen land A” means the land identified as Area A shown in Appendix 2 of the outline LEMP;

“Fen land B” means the land identified as Area B shown in Appendix 2 of the outline LEMP;

“specified date” means—

Application of local legislation, etc.

55.—(1) The following local enactments, orders and local byelaws, and any byelaws or other provisions made under any of those enactments, orders or byelaws, are hereby excluded and do not apply insofar as inconsistent with a provision, of or a power conferred by, this Order—

(a)an Act for making and maintaining a navigable Canal, from the River Thames, near to the Town of Gravesend, in the County of Kent, to the River Medway, at a Place called Nicholson’s Ship Yard, in the Parish of Frindsbury, in the said County; and also a certain Collateral Cut, from White Wall in the said Parish, to the said River Medway(9);

(b)an Act for enabling the Company of Proprietors of the Thames and Medway Canal, to vary the Line of the said Canal, and to raise a further Sum of Money for completing the said Canal and the Works thereunto belonging; and for altering and enlarging the Powers of an Act, made in the Thirty-ninth and Fortieth Year of the Reign of His present Majesty, for making the said Canal and a Collateral Cut thereto(10);

(c)an Act for enabling the Company of Proprietors of the Thames and Medway Canal to vary the Line of the said Canal; and for altering and enlarging the Powers of Two Acts passed in the Fortieth and Forty-fourth Years of His present Majesty, for making the said Canal and a Collateral Cut thereto(11);

(d)the 1825 Act;

(e)Commons Regulation (West Tilbury) Provisional Order Confirmation Act 1893(12);

(f)Medway and Thames Canal Act 1902(13);

(g)London Overground Wires Act 1933(14);

(h)London, Midland and Scottish Railway Act 1936(15);

(i)Thames Barrier and Flood Prevention Act 1972(16);

(j)County of Kent Act 1981(17);

(k)Greater London Council (General Powers) Act 1986(18);

(l)Essex Act 1987(19);

(m)Channel Tunnel Rail Link Act 1996(20);

(n)byelaws of the Rural District Council of Romford as to the nuisances in connection with the removal of offensive noxious matters 1899;

(o)byelaws of the Rural District Council of Romford for the prevention of nuisances 1902;

(p)byelaws of the Rural District Council of Romford with respect to the Drainage of Buildings 1908;

(q)Essex County Council byelaws for the Good Rule and Government 1938;

(r)Urban District of Hornchurch byelaws for Nuisances 1938;

(s)Urban District Council of Hornchurch byelaws as to removal through streets of offensive or noxious matter or liquid 1938;

(t)byelaws of the Urban District Council of Thurrock as to certain nuisances 1970;

(u)byelaws of Gravesham Borough Council in respect of pleasure grounds known as Thong Lane Sports Ground 1970;

(v)byelaws of the Borough of Medway in respect of pleasure grounds 1976;

(w)Thames Water Authority Land Drainage Byelaws 1981; and

(x)any other byelaws made under section 235 of the Local Government Act 1972(21).

(2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and insofar as (in particular)—

(a)it would make it an offence to take action, or not to take action, in pursuance of a power conferred by this Order;

(b)action taken in pursuance of a power conferred by this Order would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or

(c)action taken in pursuance of a power or duty under the provisions would or might interfere with the exercise of any work authorised by this Order.

(3) Where any person notifies the undertaker in writing that anything done or proposed to be done by the undertaker or by virtue of this Order would amount to a contravention of a statutory provision of local application, the undertaker must as soon as reasonably practicable, and at any rate within 14 days of receipt of the notice, respond in writing setting out—

(a)whether the undertaker agrees that the action taken or proposed does or would contravene the provision of local application;

(b)if the undertaker does agree, the grounds (if any) on which the undertaker believes that the provision is excluded by this article; and

(c)the extent of that exclusion.

(4) Section 42 (certain future local Acts, etc., to be subject to the planning enactments, etc., except as otherwise provided) of the Local Government (Miscellaneous Provisions) Act 1976(22)will not apply to the extent that it would make provisions of this Order authorising the construction, operation and maintenance of the authorised development subject to other provisions.

(5) Without prejudice to Part 10 (for the protection of Tilbury London Limited) of Schedule 14 (protective provisions), to the extent that there is any inconsistency or conflict between any works authorised under this Order, works carried out in connection with the authorised development, or the exercise by the undertaker of the functions conferred by this Order and all or any of the provisions of the Port of Tilbury (Expansion) Order 2019(23) (“the 2019 Order”) then, in respect of such inconsistency or conflict, there is deemed to be no breach, or non-compliance, of any provision or requirement of the 2019 Order by the Port of Tilbury London Limited or the undertaker.

Planning permission, etc.

56.—(1) If planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force of this Order that is—

(a)not itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or

(b)required to complete or enable the use or operation of any part of the development authorised by this Order,

then the construction, maintenance, use or operation of that development under the terms of the planning permission does not constitute a breach of the terms of this Order.

(2) Development consent granted by this Order is to be deemed as specific planning permission for the purposes of section 264(3) (cases in which land is not to be treated as operational land for the purposes of that Act) of the 1990 Act.

(3) To the extent any development carried out or used pursuant to a planning permission granted under section 57(24) (requirement of planning permission) of the 1990 Act or compliance with any conditions of that permission is inconsistent with the exercise of any power, right or obligation under this Order or the authorised development—

(a)that inconsistency is to be disregarded for the purposes of establishing whether any development which is the subject matter of that planning permission is capable of physical implementation; and

(b)in respect of that inconsistency, no enforcement action under the 1990 Act may be taken in relation to development carried out or used pursuant to that planning permission, or compliance with any conditions of that permission, whether inside or outside the Order limits.

(4) Any development or any part of a development within the Order limits which is constructed or used under the authority of a permission granted under section 57 of the 1990 Act including permissions falling under paragraphs (1) or (3), is deemed not to be a breach of, or inconsistent with, this Order and does not prevent the authorised development being carried out or used or any other power or right under this Order being exercised.

(5) Any works carried out under this Order are deemed to be immediately required for the purpose of carrying out development authorised by planning permission granted under the 1990 Act for the purposes of section 9 (requirement of licence for felling)(25) of the Forestry Act 1967.

(6) In paragraph (3), “enforcement action” means any enforcement action provided for under Part 7 of the 1990 Act.

Application of landlord and tenant law

57.—(1) This article applies to—

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

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

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

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

(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Defence to proceedings in respect of statutory nuisance

58.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance)(26) of the Environmental Protection Act 1990 in relation to a nuisance falling within paragraph (d), (e), (fb), (g), and (ga) of section 79(1) (statutory nuisances and inspections therefor.) of that Act no order is to be made, and no fine may be imposed, under section 82(2)(27) of that Act if—

(a)the defendant shows that the nuisance—

(i)relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the construction or maintenance of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site)(28) of the Control of Pollution Act 1974; or

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

(b)the defendant shows that the nuisance is a consequence of the use or operation of the authorised development and that it cannot reasonably be avoided.

(2) For the purposes of paragraph (1), compliance with the controls and measures described in the Code of Construction Practice or any environmental management plan approved under paragraph 4 of Schedule 2 to this Order will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.

(3) Section 61(9)(29) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Protection of interests

59.  Schedule 14 (protective provisions) has effect.

Deemed marine licence

60.  The marine licence set out in Schedule 15 (deemed marine licence) is deemed to have been issued under Part 4 of the 2009 Act for the licensed activities set out in Part 1, and subject to the licence conditions set out in Part 2, of that licence.

SACR

61.—(1) The undertaker must when carrying out the authorised development implement the measures contained in Parts 1 to 3 of the SACR (including the amendments required by paragraph 30 (amendments to be made to the SACR) of Part 3 (amendments to be made to the control documents) of Schedule 2 (requirements)) unless—

(a)otherwise agreed in writing with the person with the benefit of the measure; or

(b)an application submitted by the undertaker for revocation, suspension or variation of the measure has been approved in writing by the Secretary of State, following consultation by the undertaker with the person(s) with the benefit of the measure and any other persons considered appropriate.

(2) When determining whether to approve a revocation, suspension or variation of a measure under paragraph (1)(b), the Secretary of State—

(a)must consider the safe and expeditious delivery of the authorised development and whether—

(i)the measure is capable of implementation;

(ii)the measure no longer serves a useful purpose; and

(iii)the purpose of the measure could be served equally well with any proposed revocation, suspension or variation, and

(b)may consider additional matters that the Secretary of State considers relevant.

(3) In relation to an application under paragraph (1)(b)—

(a)the SACR is deemed to be modified so as to give effect to any revocation, suspension or variation approved by the Secretary of State; and

(b)the undertaker must, as soon as reasonably practicable after the Secretary of State determines an application for the revocation, suspension or variation of a measure, notify the person(s) with the benefit of the measure of that determination.

(4) Paragraph 22 of Schedule 2 (requirements) applies to an application to the Secretary of State for revocation, suspension or variation under paragraph (1)(b) as though it were a consultation required under that Schedule.

(5) The undertaker must, as soon as practicable following the exercise of any power under this Order, establish and maintain for a period of 3 years following the completion of the authorised development a register in electronic form, suitable for inspection by members of the public, which sets out in relation to each measure secured under paragraph (1)—

(a)the status of the measure; and

(b)whether any approval has been given or agreement made under paragraph (1)(a) or (b).

Certification of documents, etc.

62.—(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents set out in Schedule 16 (documents to be certified) to the Secretary of State for certification that they are true copies of those plans and documents.

(2) Where any plan or document set out in Schedule 16 requires to be amended to reflect the terms of the Secretary of State’s decision to make the Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).

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

(4) The undertaker must, following certification of the plans or documents in accordance with paragraph (1), make those plans or documents available in electronic form for inspection by members of the public.

Service of notices

63.—(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)(30) 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 will 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 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender will 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 will be final and will take effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article is not to be taken to exclude the employment of any method of service not expressly provided for by it.

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

Arbitration

64.—(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed in writing between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

(2) Subject to article 65 (financial arrangements for the Kent Downs National Landscape), any matter for which the consent or approval of the Secretary of State is required under any provision of this Order is not subject to arbitration.

Financial arrangements for the Kent Downs National Landscape

65.—(1) The undertaker, Natural England and the Kent Downs National Landscape Unit (“the parties”) are to agree in writing the financial contribution to be made available by the Applicant for the benefit of the Kent Downs National Landscape having regard to the amended duty under section 85 of the Countryside and Rights of Way Act 2000(31).

(2) The agreement referred to in paragraph (1) is to be made prior to the commencement of the authorised development or the tunnel being open for use, whichever is the earlier.

(3) The financial contribution referred to in paragraph (1) is not to duplicate previously agreed mitigation or compensation measures already recorded in the SACR.

(4) The financial contribution referred to in paragraph (1) is to be used in accordance with the Kent Downs AONB Management Plan or any superseding document.

(5) If agreement is not reached regarding the financial contribution, the parties are to agree that the matter is referred to an agreed independent assessor or arbitrator, or failing agreement to be appointed on the application of any of the parties (after giving notice to the other parties) by the President of the Institution of Civil Engineers (“the President”).

(6) The parties are to agree a timetable with, and the provision of papers and documents to, the agreed independent assessor or arbitrator or with the arbitrator appointed by the President.

(7) The costs of the consideration of the financial contribution (referred to in paragraph (1)) by the agreed independent assessor or arbitrator, or the arbitrator appointed by the President, is to be paid by the undertaker.

(8) The reasonable costs of the Kent Downs National Landscape Unit is to be agreed between the parties and paid by the undertaker.

(9) The agreed independent assessor or arbitrator or the arbitrator appointed by the President is to prepare a recommendation regarding the appropriate level of the financial contribution referred to in paragraph (1).The recommendation referred to in paragraph (7) is to be submitted to the Secretary of State by the undertaker together with any supporting papers and documents provided to the agreed independent assessor or arbitrator or arbitrator appointed by the President.

(10) In relation to the recommendation, the Secretary of State may—

(a)approve the recommendation;

(b)refuse the recommendation; or

(c)modify the recommendation in such way as the Secretary of State thinks fit.

(11) The undertaker is required to amend the SACR so as to record—

(a)the written agreement regarding the financial contribution referred to in paragraph (1); or

(b)the outcome of the approved or modified recommendation,

before it is submitted for certification to the Secretary of State in accordance with article 62

Power to override easements and other rights

66.—(1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

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

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

(2) The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by the virtue of a contract.

(3) Subject to article 67 (no double recovery), where any interest, right or restriction to which this article applies is interfered with or breached under paragraph (1), unless otherwise agreed, compensation—

(a)is payable under section 7 (measure of compensation in case of severance) or section 10 (further provision as to compensation for injurious affection)(32) of the 1965 Act; and

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

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

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

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

(a)is liable to pay compensation by virtue of paragraph (3); and

(b)fails to discharge that liability,

the liability is enforceable against the undertaker.

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

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

(a)the erection, construction or maintenance of any part of the authorised development;

(b)the exercise of any power authorised by this Order; or

(c)the use of any land (including the temporary use of land).

No double recovery

67.  Compensation will not be 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 articles of this Order.

Interface with waste operation permits

68.—(1) Before the undertaker carries out an authorised activity which would give rise to inconsistency or conflict with an existing permit, it may—

(a)consult the Environment Agency and the permit holder on a draft environmental scheme;

(b)amend that scheme as appropriate to take into account of representations received; and

(c)submit the final scheme to the Environment Agency, and serve a copy of that scheme on the permit holder,

but if the undertaker decides not to submit an environmental scheme, it must give reasonable notice to any permit holder to enable appropriate steps to be taken to ensure it continues to be able to comply with its permit.

(2) The Environment Agency must within 56 days (or such other period as the undertaker and the Environment Agency may agree) of receipt of the final scheme under paragraph (1)(c) make a regulator initiated variation to the relevant existing permit.

(3) The Environment Agency must, subject to its duties under the 2016 Regulations, ensure that the regulator initiated variation referred to in paragraph (2)—

(a)allows the authorised activity to be carried out in accordance with the environmental scheme; and

(b)minimises the need for any future variations to the existing permit arising from an authorised activity.

(4) In relation to a regulator initiated variation made pursuant to this article, the 2016 Regulations are to be construed so that—

(a)regulation 20(2) (variation of an environmental permit) does not apply where the Environment Agency (or, in the case of an appeal, the appropriate authority) agrees that the conditions in paragraph 14(1)(a) and (b) (surrender applications) of Part 1 of Schedule 5 to the 2016 Regulations are satisfied by the environmental scheme;

(b)where a regulator initiated variation made pursuant to this article includes provision to reduce the extent of the site of a regulated facility, an application for a surrender of a permit in respect of land which, by virtue of that variation, is no longer the site of a regulated facility will not be required;

(c)paragraph 8 (public participation in relation to certain applications) of Part 1 of Schedule 5 to the 2016 Regulations does not apply;

(d)paragraph 9 (consultation: conditions mentioned in regulation 15(1)) of Part 1 of Schedule 5 to 2016 Regulations does not apply so as to require notice to be served on the undertaker;

(e)both the undertaker and the permit holder have a right of appeal under regulation 31(1)(c)(i) (applications to an appropriate authority);

(f)if the Environment Agency fails to comply with paragraph (2), the undertaker may serve a notice under paragraph 2(1) (making an appeal) of Schedule 6 of the 2016 Regulations and the undertaker may then appeal under regulation 31(1)(a), as if the failure were a refusal of an application under the Regulations;

(g)the appropriate authority for the purposes of regulation 31 is the Secretary of State for Transport;

(h)the permit holder must be served with a copy of an appeal made by the undertaker within 14 days of it being lodged and will have the right to make representations and appear at the appeal as an interested party; and

(i)no requirements relating to publicity of an appeal apply.

(5) Charges that would otherwise apply to a regulator initiated variation under the charging scheme are substituted by a requirement for the undertaker to pay to the Environment Agency its reasonable costs incurred in connection with paragraphs (1) to (3) of this article.

(6) Regulation 25 (application for the surrender of an environmental permit) of the 2016 regulations is to be construed to allow the undertaker to make an application, following consultation with the permit owner and the Environment Agency, to surrender in whole or in part an existing permit in respect of land which has been, or is proposed to be, compulsorily acquired by the undertaker under this Order.

(7) If a surrender application is made under paragraph (6) the undertaker must pay the surrender application charge that would otherwise have been payable by the permit holder under the charging scheme and regulation 31 of the 2016 Regulations is construed so that the undertaker may exercise the appeal rights associated with the application in place of the permit holder.

(8) In the case of a surrender application under paragraph (6) or a determination under paragraph 4(a) the requirement in paragraph 14(1)(b) of Part 1 of Schedule 5 to the 2016 Regulations is to be construed so that regard is also had to the use of the site subject to the application in connection with an authorised activity.

(9) Nothing in this article affects—

(a)the requirement under the 2016 Regulations for a regulated facility to be authorised by an environmental permit; or

(b)the right of a permit holder to make an application for a variation or surrender of an environmental permit under the 2016 regulations.

(10) In this article—

“the 2016 Regulations” means the Environmental Permitting (England and Wales) Regulations 2016(33) and unless otherwise specified, expressions used in this article have the same meaning as in those Regulations;

“authorised activity” means any works or activities authorised by this Order, works carried out in connection with the authorised development, or the exercise by the undertaker of functions conferred by this Order;

“charging scheme” means the Environment Agency (Environmental Permitting and Abstraction Licensing) (England) Charging Scheme 2022(34), and includes any subsequent amendment to that scheme or any new scheme;

“environmental scheme” means a written scheme containing appropriate measures to ensure—

“existing permit” means any environmental permit in respect of a waste operation whether granted under the 2016 Regulations (or any predecessor or substituted regulations) before or after the coming into force of this Order granted by the Environment Agency on or over the Order limits, excluding any environmental permit obtained by the undertaker.