PART 7MISCELLANEOUS AND GENERAL
Application of landlord and tenant law
40.—(1) This article applies to—
(a)any agreement for leasing to any person the whole or any part of the authorised project 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 project, 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.
Operational land for purposes of the 1990 Act
41. Development consent granted by this Order is treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as not being operational land).
Felling or lopping of trees and removal of hedgerows
42.—(1) Subject to sub-paragraph 2 and article 43 (trees subject to tree preservation orders) the undertaker may fell or lop or cut back the roots of any tree or shrub within or overhanging land within the Order limits or near any part of the authorised project if the undertaker reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with onshore site preparation works, the construction, maintenance or operation of the authorised project or its decommissioning or any apparatus used in connection with the authorised project.
(2) In carrying out any activity authorised by sub-paragraph (1), the undertaker must not do any unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.
(3) Any dispute as to a person’s entitlement to compensation under sub-paragraph (2), or as to the amount of compensation, must be determined under Part 1(determination of questions of disputed compensation) of the 1961 Act.
(4) The undertaker may, for the purpose of the authorised project—
(a)subject to sub-paragraph (2) above, remove any hedgerows within the Order limits and specified in Schedule 13, Part 1 (removal of hedgerows) that may be required for the purposes of carrying out the authorised project; and
(b)remove the important hedgerows as are within the Order limits and specified in Schedule 13, Part 2 (removal of important hedgerows).
(5) In this article “hedgerow” and “important hedgerow” have the same meaning as in the Hedgerows Regulations 1997(1).
Trees subject to tree preservation orders
43.—(1) Subject to sub-paragraph (2), the undertaker must not fell or lop or cut back the roots of any tree which is the subject of a tree preservation order.
(2) The undertaker may fell or lop any tree within or overhanging land within the Order limits subject to a tree preservation order whensoever made or cut back its roots, if it reasonably believes it to be necessary to do so in order to prevent the tree from obstructing or interfering with onshore site preparation works the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project or its decommissioning.
(3) In carrying out any activity authorised by sub-paragraph (2)—
(a)the undertaker must not cause unnecessary damage to any tree and must pay compensation to any person for any loss or damage arising from such activity; and
(b)the duty contained in section 206(1) (replacement of trees) of the 1990 Act does not apply.
(4) The authority given by sub-paragraph (2) constitutes a deemed consent under the relevant tree preservation order.
(5) Any dispute as to a person’s entitlement to compensation under sub-paragraph (3), or as to the amount of compensation, must be determined under Part 1 (determination of questions of disputed compensation) of the 1961 Act.
Abatement of works abandoned or decayed
44. Where Work Nos 1 to 6 or all of them or any part of them, is abandoned or allowed to fall into decay the Secretary of State may, following consultation with the undertaker, by notice in writing require the undertaker at its own expense either to repair, make safe and restore one or any of those Works, or any relevant part of them, or to remove them and, without prejudice to any notice served under section 105(2) (Decommissioning programmes) of the 2004 Act(2) restore the site to a safe and proper condition, to such an extent and within such limits as may be specified in the notice.
Procedure in relation to certain approvals etc.
45. Schedule 14 (procedure for discharge of certain approvals) has effect in relation to all agreements or approvals granted, refused or withheld in relation to the requirements in Part 3 of Schedule 1 (requirements).
Arbitration
46.—(1) Subject to article 47 (saving provisions for Trinity House) any dispute or 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 15 (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 to be subject to arbitration.
Saving provisions for Trinity House
47. Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.
Crown rights
48.—(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 lessee or licensee to take, use, enter on 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) belonging to—
(a)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)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)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) Sub-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 sub-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.
Certification of plans and documents, etc.
49.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of the documents listed in Schedule 16 (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.
(3) Where a plan or document certified under sub-paragraph (1)—
(a)refers to a provision of this Order (including any specified requirement) when it was in draft form; and
(b)identifies that provision by number, or combination of numbers and letters, which is different from the number, or combination of numbers and letters by which the corresponding provision of this Order is identified in the Order as made,
the reference in the plan or document concerned must be construed for the purposes of this Order as referring to the provision (if any) corresponding to that provision in the Order as made.
Protective provisions
50. Schedule 10 (Protection Provisions) has effect.
Funding
51.—(1) The undertaker must not exercise the powers conferred by the provisions referred to in sub-paragraph (2) in relation to any land unless it has first put in place either—
(a)a guarantee, the form and the amount of that guarantee 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 pursuant to the provisions referred to in sub-paragraph (2); or
(b)an alternative form of security and the form amount of that security for that purpose 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 pursuant to the provisions referred to in sub-paragraph (2).
(2) The provisions are—
(a)article 22 (compulsory acquisition of land);
(b)article 24 (compulsory acquisition of rights and imposition of restrictive covenants);
(c)article 25 (private rights over land);
(d)article 26 (power to override easements and other rights);
(e)article 29 (acquisition of subsoil or airspace only);
(f)article 30 (rights under or over streets);
(g)article 31 (temporary use of land for carrying out the authorised project);
(h)article 32 (temporary use of land for maintaining the authorised project); and
(i)article 34 (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.
No double recovery
52. 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 different provisions of this Order.
Disregard of certain improvements, etc
53.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal must not take into account—
(a)any interest in land; or
(b)any enhancement of the value of any interest in land by reason of any building erected, works carried out or improvement or alteration made on the relevant land,
if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised project was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.
(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works constructed or the improvement or alteration made as part of the authorised project, directly or indirectly concerned.
Set-off for enhancement in value of retained land
54.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.
(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 24 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—
(a)any increase in the value of the land over which the new rights are required; and
(b)any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,
which will accrue to that person by reason of the construction of the authorised development.
(3) The 1961 Act has effect, subject to sub-paragraphs (1) and (2) as if this Order were a local enactment for the purposes of that Act.
Service of notices
55.—(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 sub-paragraphs (6) 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 of the Interpretation Act 1978(3) (references to service by post) 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 sub-paragraph (1) is, if that person has given an address for service, that address and otherwise—
(a)in the case of the secretary of clerk of that body corporate, the registered or principal office of that body; and
(b)in any other case, the last known address of that person at that 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 an 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 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 the 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)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 any 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 an electronic transmission by a person may be revoked by that person in accordance with sub-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 measures
56. Schedule 17 (Compensation to protect the coherence of the National Site Network) has effect.
Signed by authority of the Secretary of State for Energy Security and Net Zero