PART 2PRINCIPAL POWERS
Benefit of the Order
article 5 5.—(1) Subject to this article, the provisions of this Order have effect solely for the benefit of the undertaker.
(2) Subject to sub-paragraphs (5) and (6), the undertaker may with the written consent of the Secretary of State—
article 5 2 a (a)term the transferee transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order (excluding the deemed marine licences referred to in sub-paragraph (3) below) and such related statutory rights as may be agreed between the undertaker and the transferee; and
article 5 2 b (b)term the lessee grant to another person (“the lessee”) for a period agreed between the undertaker and the lessee any or all of the benefit of the provisions of the Order (excluding the deemed marine licences) and such related statutory rights as may be so agreed,
except where sub-paragraph (8) applies, in which case no consent of the Secretary of State is required.
(3) Subject to sub-paragraph (5), the undertaker may with the written consent of the Secretary of State—
article 5 3 a (a)where an agreement has been made in accordance with paragraph (2)(a), transfer to the transferee the whole of any of the deemed marine licences granted under Schedules 11 or 12 of this Order and such related statutory rights as may be agreed between the undertaker and the transferee; or
article 5 3 b (b)where an agreement has been made in accordance with paragraph (2)(b), grant to the lessee, for the duration of the period mentioned in paragraph (2)(b), the whole of any of the deemed marine licences granted under Schedules 11 or 12 of this Order and such related statutory rights as may be so agreed,
except where sub-paragraph (8) applies, in which case no consent of the Secretary of State is required.
(4) Where an agreement has been made in accordance with sub-paragraph (2) or (3) references in this Order to the undertaker, except in sub-paragraphs (7), (9) and (12), is to include references to the transferee or lessee.
(5) The undertaker must consult the Secretary of State before making an application for consent under this article by giving notice in writing of the proposed application.
(6) On receipt of a request under sub-paragraph (3) the Secretary of State must consult the MMO, and must have regard to any response received from the MMO within 28 days of notification before giving consent to the transfer or grant to another person of the benefit of the provisions of the deemed marine licences.
(7) Where the undertaker has transferred any benefit, or for the duration of any period during which the undertaker has granted any benefit, under sub-paragraphs (2) or (3)—
article 5 7 a (a)the benefit transferred or granted (“the transferred benefit”) is to include any rights that are conferred, and any obligations that are imposed, by virtue of the provisions to which the benefit relates;
article 5 7 b (b)the transferred benefit is to reside exclusively with the transferee or, as the case may be, the lessee and the transferred benefit is not enforceable against the undertaker save in the case of a deemed marine licence transferred or granted in respect of any breach of an obligation by the undertaker which occurs prior to such transfer or grant or which occurs as a result of any activity carried out by the undertaker on behalf of the transferee; and
article 5 7 c (c)the exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under sub-paragraphs (2) or (3) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.
(8) The consent of the Secretary of State is required for the exercise of powers under sub-paragraphs (2) or (3) except where—
article 5 8 a (a)the transferee or lessee is the holder of a licence under section 6 of the 1989 Act (licences authorising supply etc.);
article 5 8 b (b)the time limits for claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—
article 5 8 b i (i)no such claims have been made;
article 5 8 b ii (ii)any such claim has been made and has been compromised or withdrawn;
article 5 8 b iii (iii)compensation has been paid in final settlement of any such claim;
article 5 8 b iv (iv)payment of compensation into court has taken place in lieu of settlement of any such claim; or
article 5 8 b v (v)it has been determined by a tribunal or court of competent jurisdiction in respect of any such claim that no compensation is payable.
(9) Prior to any transfer or grant under this article taking effect the undertaker must give notice in writing to the Secretary of State, and if such transfer or grant relates to the exercise of powers in their area, to the MMO and/or the relevant planning authority.
(10) A notice required under sub-paragraphs (5) and (9) must—
article 5 10 a (a)state—
article 5 10 a i (i)the name and contact details of the person to whom the benefit of the provisions will be transferred or granted;
article 5 10 a ii (ii)subject to sub-paragraph (11), the date on which the transfer will take effect;
article 5 10 a iii (iii)the provisions to be transferred or granted;
article 5 10 a iv (iv)the restrictions, liabilities and obligations that, in accordance with sub-paragraph (7)(c), will apply to the person exercising the powers transferred or granted; and
article 5 10 a v (v)where sub-paragraph (8)(c) does not apply, confirmation of the availability and adequacy of funds for compensation associated with the compulsory acquisition of the Order land; and
article 5 10 b (b)be accompanied by—
article 5 10 b i (i)where relevant, a plan showing the works or areas to which the transfer or grant relates; and
article 5 10 b ii (ii)a copy of the document effecting the transfer or grant signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted.
(11) The date specified under sub-paragraph (10)(a)(ii) in respect of a notice served in respect of sub-paragraph (9) must not be earlier than the expiry of 14 days from the date of the Secretary of State’s receipt of the notice.
(12) The notice given under sub-paragraph (9) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice.
(13) Section 72(7) and (8) of the 2009 Act (Variation, suspension, revocation and transfer) do not apply to a transfer or grant of the benefit of the provisions of any of the deemed marine licences to another person by the undertaker pursuant to this article.