PART 7MISCELLANEOUS AND GENERAL

Disapplication of legislative provisions

43.  The provisions of the Neighbourhood Planning Act 2017(1), in so far as they relate to the temporary possession of, or entry into, 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 34(13) (temporary use of land for maintaining the authorised development), any maintenance of any part of the authorised development.

Interaction with LLAOL planning permission

44.—(1) The undertaker may not, in accordance with this Order, operate the airport above the passenger cap permitted by the LLAOL planning permission until notice under this article has been served on Luton Borough Council by the undertaker.

(2) As soon as reasonably practicable following service of notice under paragraph (1), the undertaker must inform the following local authorities that such notice has been served—

(a)Central Bedfordshire Council;

(b)Dacorum Borough Council;

(c)Hertfordshire County Council; and

(d)North Hertfordshire District Council.

(3) Notwithstanding article 45(2) (application of the 1990 Act) of this Order, upon service of notice under paragraph (1)—

(a)the undertaker must operate the airport in accordance with the provisions of this Order; and

(b)subject to paragraphs (4) and (5), the conditions of the LLAOL planning permission cease to have effect and the LLAOL section 106 agreement is abrogated.

(4) Where one or more of the specified conditions of the LLAOL planning permission—

(a)require delivery of built development which has not been completed at the point of service of notice under paragraph (1), or relate to construction of that built development; or

(b)require post-completion monitoring or management of built development required to be delivered by the LLAOL planning permission,

the specified condition continues to have effect in relation to the built development in question after service of notice under paragraph (1) until the obligation in relation to the built development has been discharged, or Luton Borough Council certifies in writing that the obligation has been superseded by an equivalent obligation under this Order.

(5) Upon service of notice under paragraph (1), the LLAOL planning permission and the LLAOL section 106 agreement will not be enforceable except in respect of any breach that occurred prior to the undertaker serving notice under paragraph (1).

(6) Notwithstanding paragraph (1), the undertaker may exercise any other powers under this Order in respect of any part of the authorised development prior to or following service of notice under paragraph (1).

(7) In this article, “specified condition” means either—

(a)conditions 1, 4, 6, 7, 13-15, 17, 18 and 20 of planning permission reference 15/00950/VARCON; or

(b)if planning permission 21/00031/VARCON (APP/B0230/V/22/3296455) has been commenced, conditions 1-3, 5, 6, 10-12 and 14-16 of that permission,

including any variations thereto granted under section 96A(2) (power to make non-material changes to planning permission or permission in principle) or section 73 (determination of applications to develop land without compliance with conditions previously attached) of the 1990 Act.

Application of the 1990 Act

45.—(1) Development consent granted by this Order—

(a)which applies to land forming part of the airport; or

(b)which authorises works to apparatus of statutory undertakers on, under or over land,

is to be treated as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as not being operational) of the 1990 Act provided development which comprises the airport or apparatus belonging to a statutory undertaker is authorised under this Order and has been carried out on the land in question.

(2) To the extent that the LLAOL planning permission or the Green Horizons Park permission or compliance with any conditions of either of those permissions is inconsistent with authorised development which is carried out under this Order, then from the point at which that inconsistency arises—

(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;

(b)no enforcement action under the 1990 Act may be taken against development carried out in accordance with that planning permission by reason of such inconsistency, whether inside or outside the Order limits; and

(c)any conditions on that planning permission that are inconsistent with this Order or the authorised development cease to have effect.

(3) To the extent that development carried out, operated or used in accordance with the grant of planning permission under the 1990 Act that is inconsistent with the authorised development under this Order it is deemed not to constitute a breach of this Order and does not prevent the undertaker carrying out the authorised development granted development consent under this Order.

(4) Where the undertaker identifies an inconsistency between a planning permission and this Order which engages the provisions of paragraphs (2)or (3) as the case may be, it must notify the relevant planning authority as soon as reasonably practicable about the existence of the inconsistency, and how the undertaker is proceeding in view of that inconsistency in accordance with this article.

(5) In this article—

(a)“Green Horizon Park permission” means planning permission reference 17/02300/EIA or any variation of this permission granted under section 96A (power to make non-material changes to planning permission or permission in principle) or section 73(3) (determination of applications to develop land without compliance with conditions previously attached) of the 1990 Act;

(b)“inconsistency” and “cognate expressions” means a circumstance in which a physical conflict exists, or one in which development is no longer capable of being physically implemented or otherwise operated in accordance with the permission or consent granted; and

(c)“planning permission” means planning permission granted under the 1990 Act including planning permission deemed to be granted under article 3 (permitted development) and Classes F, G, I, J, K, L, M and N of Part 8 (Transport related development) of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015(4).

Application of landlord and tenant law

46.—(1) This article applies to—

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

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

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

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

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

47.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990(5) in relation to a nuisance falling within paragraph (d), (e), (g) and (ga) of section 79(1)(6) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2)(7) 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 sites), or a consent given under section 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974(8); 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 relating to noise, vibration, dust or lighting described in the code of construction practice will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.

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

(4) In this this article “premises” has the same meaning as in section 79(7)(9) of the Environmental Protection Act 1990.

No double recovery

48.  Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or deed or any rule of law, or under two or more different provisions of this Order.

Protection of interests

49.  Schedule 8 (protective provisions) has effect.

Certification of documents, etc.

50.—(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 9 (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 9 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) Notwithstanding paragraph (2), the Secretary of State expects the undertaker to provide an updated GCG Framework so that this document—

(a)consistent refers to “within six months of new legal limits being published”; and

(b)reflects the revised control needed to take account of paragragh 29 (annual air traffic movement cap for the authorised development) in Schedule 2 (requirements) which secure an annual movement limit of 209,410 movements.

(4) 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.

Service of notices

51.—(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(10) 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 does not exclude the employment of any method of service not expressly provided for by it.

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

Arbitration

52.—(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed 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 resolved in accordance with this article.

(2) The parties must use reasonable endeavours to settle any difference to which paragraph (1) applies through negotiations undertaken in good faith by senior representatives of the parties.

(3) Any difference which is not resolved to the satisfaction of the parties under paragraph (2) within ten working days of the dispute arising (or such longer period as may be agreed) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State.

Guarantees in respect of payment of compensation

53.—(1) The undertaker must not exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any land comprised in part of the authorised development unless it has first put in place for that land either—

(a)a guarantee, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land; or

(b)an alternative form of security, the form and amount of which has been approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land.

(2) The provisions are—

• article 24 (compulsory acquisition of land);

• article 27 (compulsory acquisition of rights and imposition of restrictive covenants);

• article 28 (private rights over land);

• article 31 (acquisition of subsoil or airspace only);

• article 32 (rights under or over streets);

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

• article 34 (temporary use of land for maintaining the authorised development); and

• article 36 (statutory undertakers).

(3) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the guarantor or person providing the alternative form of security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.

(4) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.

Enhancement and conservation of the Chilterns National Landscape

54.—(1) Having regard to the duty under section 85 of the Countryside and Rights of Way Act 2000, upon service of the notice referred to in article 44(1), the undertaker will make a funding contribution to the Chilterns Conservation Board in the sum of £250,000.

(2) The Chilterns Conservation Board is to allocate the funding contribution referred to in paragraph (1) to one or more projects which—

(a)further the purposes of conserving or enhancing the Chilterns National Landscape; and

(b)are consistent with the Chilterns AONB Management Plan 2019-2024 (or any superseding or equivalent document).

(3) Upon any allocation of funding in accordance with paragraph (2), the Chilterns Conservation Board is to notify the undertaker about the project which is in receipt of the funding and provide the undertaker with such information about the project as the undertaker may reasonably request.

(4) In this article, the “Chilterns Conservation Board” includes any successor body which performs its functions and duties.