PART 6Miscellaneous and general

Application and modification of legislative provisions

article 36 + 36.—(1) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation for the purpose of, or in connection with, the construction of the authorised development or any maintenance of any part of the authorised development—

article 36 1 a + (a)regulation 12 (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(1) in respect of a flood risk activity only;

article 36 1 b + (b)the provisions of any byelaws made under, or having effect as if made under, paragraphs 5, 6 or 6A of Schedule 25 (byelaw making powers of the appropriate agency) to the Water Resources Act 1991(2);

article 36 1 c + (c)the provisions of any byelaws made under section 66 (powers to make byelaws) of the Land Drainage Act 1991(3);

article 36 1 d + (d)sections 23 (prohibition on obstructions etc. in watercourses) and 30 (authorisation of drainage works in connection with a ditch) of the Land Drainage Act 1991; and

article 36 1 e + (e)the provisions of the Neighbourhood Planning Act 2017(4) in so far as they relate to the temporary possession of land under articles 32 (temporary use of land for carrying out the authorised development) and 33 (temporary use of land for maintaining the authorised development).

term development + (2) Notwithstanding 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(5) any building comprised in the authorised development must be deemed to be—

article 36 2 a + (a)a building into which people do not normally go; or

article 36 2 b + (b)a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.

Defence to proceedings in respect of statutory nuisance

article 37 + 37.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990(6) in relation to a nuisance falling within paragraphs (g) (noise emitted from premises so as to be prejudicial to health or a nuisance) and (ga) (noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road) 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) of that Act if the defendant shows that the nuisance—

article 37 1 a + (a)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 carrying out 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(7); or

article 37 1 b + (b)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 carrying out of the authorised development; or

article 37 1 c + (c)is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or

article 37 1 d + (d)is a consequence of complying with a requirement of this Order and that it cannot reasonably be avoided; or

article 37 1 e + (e)is a consequence of the use of the authorised development and that it cannot be reasonably avoided.

(2) For the purposes of paragraph (1) above, compliance with the controls and measures relating to noise described in the CEMP will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.

(3) Where a relevant planning authority is acting in accordance with section 60(4) and section 61(4) of the Control of Pollution Act 1974 in relation to the construction of the authorised development then the local authority must also have regard to the controls and measures relating to noise referred to in the CEMP approved under Schedule 2 (requirements).

(4) Section 61(9) 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.

term premises + (5) In this article “premises” has the same meaning as in section 79 of the Environmental Protection Act 1990.

Application of landlord and tenant law

article 38 + 38.—(1) This article applies to any agreement entered into by the undertaker under article 7 (benefit of the Order) so far as it relates to the terms on which any land is subject to a lease granted by or under that agreement.

(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 enactment or rule of law to which paragraph (2) applies is to apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

article 38 3 a + (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;

article 38 3 b + (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

article 38 3 c + (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.

Felling or lopping of trees and removal of hedgerows

article 39 + 39.—(1) The undertaker may fell or lop any tree or shrub, or cut back its roots, within or overhanging land within the Order limits if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

article 39 1 a + (a)from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

article 39 1 b + (b)from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must—

article 39 2 a + (a)do no unnecessary damage to any tree, shrub or hedgerow; and

article 39 2 b + (b)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 paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2), remove any hedgerow within the Order limits.

term hedgerow + (5) In this article “hedgerow” has the same meaning as in the Hedgerows Regulations 1997(8).

Trees subject to Tree Preservation Orders

article 40 + 40.—(1) The undertaker may fell, lop or prune any part of any tree which is within, over or under land within the Order limits or cut back its roots, if it reasonably believes it to be necessary in order to prevent the tree—

article 40 1 a + (a)from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

article 40 1 b + (b)from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1)—

article 40 2 a + (a)the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any damage arising from such activity; and

article 40 2 b + (b)the duty in section 206(1) (replacement of trees) of the 1990 Act will not apply.

(3) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(4) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, must be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Crown rights

article 41 + 41.—(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 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)—

article 41 1 a + (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;

article 41 1 b + (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

article 41 1 c + (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.

Protective provisions

article 42 + 42.  Schedule 9 (protective provisions) has effect.

Planning legislation

article 43 + 43.—(1) 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.

(2) Any planning permission which has been initiated prior to the commencement of the authorised development pursuant to this Order may continue to be lawfully implemented thereafter notwithstanding any physical incompatibility with the authorised development or inconsistency with any provision of this Order.

(3) As from the date on which the authorised development is commenced, any conditions of a planning permission granted pursuant to Part 3 (control over development) of the 1990 Act (whether express or otherwise) which relate to land within the Order limits or land adjacent to the Order limits cease to have effect to the extent they are inconsistent with the authorised development or with anything done or approved under the requirements in Schedule 2 (requirements).

(4) As from the date of this Order where planning permission (whether express or otherwise) is granted (whether prior to the date of this Order or after) pursuant to Part 3 of the 1990 Act in respect of land within the Order limits for development not forming part of the authorised development, the carrying out of development pursuant to such planning permission is not to operate to prevent the undertaker from carrying out further works for the development of the authorised development pursuant to the terms of this Order.

(5) Nothing in this Order restricts the undertaker from seeking or implementing, or the relevant planning authority from granting, planning permission for development within the Order limits.

Certification of plans, etc.

article 44 + 44.—(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of—

article 44 1 a + (a)the access and rights of way plans (consisting of a key plan and sheets 1 to 36 inclusive) (document number 4.20);

article 44 1 b + (b)the land plans (consisting of a key plan and sheets 1 to 36 inclusive) (document number 4.3);

article 44 1 c + (c)the crown land plans (consisting of a key plan and sheets 1 to 2 inclusive) (document number 4.4);

article 44 1 d + (d)the special category land plans (consisting of a key plan and sheets 1 to 4 inclusive) (document number 4.5);

article 44 1 e + (e)the works plans (consisting of a key plan and sheets 1 to 36 inclusive) (document number 4.2);

article 44 1 f + (f)the general arrangement plans comprising the Immingham Facilities Plot Plan (document number 4.6); Theddlethorpe Facility Plot Plan (document number 4.7); Washingdales Lane Block Valve Station plan (document number 4.14); Thoroughfare Block Valve Station plan (document number 4.15); Louth Road Block Valve Station plan (document number 4.16);

article 44 1 g + (g)the book of reference (document number 3.3);

article 44 1 h + (h)the environmental statement (consisting of 4 volumes) (document numbers 6.1 to 6.4.20.1);

article 44 1 i + (i)the outline construction environment management plan (document number 6.4.3.1);

article 44 1 j + (j)the outline landscape and ecological management plan (document number 6.8);

article 44 1 k + (k)the outline construction traffic management plan (document number 6.4.12.5);

article 44 1 l + (l)the outline drainage strategy (document number 6.4.11.3);

article 44 1 m + (m)the outline archaeological written scheme of investigation (document number 6.4.8.3);

article 44 1 n + (n)outline operational phase mitigation plan (document number 6.4.3.6); and

article 44 1 o + (o)any other plans or documents referred to in this Order as requiring certification,

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.

Service of notices

article 45 + 45.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

article 45 1 a + (a)by post;

article 45 1 b + (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

article 45 1 c + (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(9) 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—

article 45 3 a + (a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

article 45 3 b + (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—

article 45 4 a + (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

article 45 4 b + (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—

article 45 5 a + (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;

article 45 5 b + (b)the notice or document is capable of being accessed by the recipient;

article 45 5 c + (c)the notice or document is legible in all material respects; and

article 45 5 d + (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 must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic transmission 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—

article 45 8 a + (a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

article 45 8 b + (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.

term legible in all material respects + (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.

No double recovery

article 46 + 46.  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.

Requirements, appeals, etc.

article 47 + 47.—(1) Where an application is made to, or a request is made of, the relevant planning authority or any other relevant person for any agreement or approval required or contemplated by any of the provisions of this Order, such agreement or approval must, if given, be given in writing and must not be unreasonably withheld or delayed.

(2) Part 2 (procedure for discharge of requirements) of Schedule 2 has effect in relation to all agreements or approvals granted, refused or withheld in relation to the requirements included in Part 1 of that Schedule.

Arbitration

article 48 + 48.—(1) Any difference under any provision of this Order, unless otherwise provided for, is be referred to and settled in arbitration in accordance with the rules at Schedule 10 (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) 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.