The Willington C Gas Pipeline Order 2014

Made: 16th December 2014

Coming into force: 7th January 2015

Accordingly, the Secretary of State, in exercise of the powers in sections 114 and 120 of the 2008 Act, makes the following Order:

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Willington C Gas Pipeline Order 2014 and comes into force on 7th January 2015.

Interpretation

2

• (1) In this Order—

• “1961 Act” means the Land Compensation Act 1961[^f00003];

• “1965 Act” means the Compulsory Purchase Act 1965[^f00004];

• “1980 Act” means the Highways Act 1980[^f00005];

• “1990 Act” means the Town and Country Planning Act 1990[^f00006];

• “1991 Act” means the New Roads and Street Works Act 1991[^f00007];

• “1997 Regulations” means the Hedgerows Regulations 1997[^f00008];

• “2008 Act” means the Planning Act 2008;

• “address” includes any number or address used for the purposes of electronic transmission;

• “authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development) and any other development authorised by this Order that is development within the meaning of section 32 of the 2008 Act;

• “book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

• “building” includes any structure or erection or any part of a building, structure or erection;

• “carriageway” has the same meaning as in the 1980 Act[^f00009];

• “commence” means begin to carry out any material operation (as defined in section 56(4) of the 1990 Act[^f00010]) forming part of the authorised development other than operations consisting of—ecological or archaeological investigations;investigations for the purpose of assessing ground conditions;remedial work in respect of any contamination or other adverse ground conditions;the diversion and laying of services;the erection of any temporary means of enclosure;the temporary display of site notices or advertisements; andfor the purpose of the operations referred to in sub-paragraphs (a) to (f), the cutting of vegetation, other than the cutting of vegetation authorised by article 32 (felling or lopping of trees, etc.);and “commencement” must be construed accordingly;

• “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act[^f00011];

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form;

• “environmental statement” means the environmental statement certified by the Secretary of State as the environmental statement for the purposes of this Order;

• “highway” has the same meaning as in the 1980 Act[^f00012];

• “land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order;

• “limits of deviation” means the areas shown on the works plans (within a broken red line) and referred to in article 7 (limits of deviation);

• “local highway authority” means Staffordshire County Council or Derbyshire County Council as appropriate for the area in which the land to which the provisions of this Order apply is situated or any successors to their statutory functions as highway authorities;

• “maintain” (except as provided in Part 5 of Schedule 9) includes inspect, maintain, adjust, alter, repair, test, cleanse, re-lay, divert (in accordance with articles 5 (maintenance and diversion of authorised development) and 7 (limits of deviation)), make safe, decommission, reconstruct, demolish, abandon, replace, remove and improve the authorised development or any of its parts (but not so as to vary from the description of the authorised development in Schedule 1); and any derivative of “maintain” must be construed accordingly;

• “National Grid Electricity” means National Grid Electricity Transmission plc (company registration number 02366977) or any successor company performing the same functions;

• “National Grid Gas” means National Grid Gas plc (company registration number 02006000) or any successor company performing the same functions;

• “NG works” means those works to be constructed, owned and operated by National Grid Gas and described in Part 1 of Schedule 1 as (a) Works No.2 (shown on sheet 1 of the works plans) and (b) those works within Works No.3 which comprise National Grid Gas’s part of the above-ground installation, and are shown within the turquoise bounded area on the Yoxall AGI plan;

• “Order land” means the land shown on the land plans that is within the limits of land to be acquired or used and described in the book of reference;

• “Order limits” means the limits (including the limits of deviation, the works limits and any additional land to be used) shown by a blue line on the works plans within which the authorised development may be carried out;

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00013];

• “relevant planning authority” means South Derbyshire District Council or East Staffordshire Borough Council as appropriate for the area in which the land to which the provisions of this Order apply is situated;

• “Requirement” means a Requirement set out in Part 2 of Schedule 1; and a reference to a numbered Requirement is a reference to the Requirement set out in the paragraph of the same number in that Part;

• “statutory undertaker” means any person falling within sections 127(8) and 138(4A) of the 2008 Act[^f00014] or who has the benefit of the protective provisions in Schedule 9;

• “street” means a street within the meaning of section 48 of the 1991 Act[^f00015], together with land on the verge of a street or between two carriageways, and includes part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act[^f00016];

• “tribunal” means the Lands Chamber of the Upper Tribunal;

• “undertaker” means RWE Generation UK plc[^f00017] (company registration number 03892782) or a successor body, or any other person, to whom RWE Generation UK plc transfers or grants any or all of the benefit of this Order in accordance with article 9 (consent to transfer benefit of Order);

• “watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain;

• “works limits” means the limits of land shown by a broken green line on the works plans within which the authorised development can be carried out and maintained;

• “works plans” means the plans certified as the works plans by the Secretary of State for the purposes of this Order;

• “Yoxall AGI plan” means the plan certified as the Yoxall AGI plan by the Secretary of State for the purposes of this Order;

• “Yoxall AGI site” means the land hatched blue on sheet 1 of the works plans and shown on the Yoxall AGI plan.

• (2) References in this Order to rights over land include references to rights to do or to place and maintain, anything in, on or under land or in the air-space above its surface.

• (3) All distances, directions and lengths referred to in this Order are approximate.

• (4) All areas described in the book of reference are approximate.

• (5) References in this Order to a numbered Work are references to a work numbered in Part 1 of Schedule 1.

Application and modification of legislative provisions

3

• (1) Regulation 6(1) of the 1997 Regulations applies to the development consent granted by this Order except that it is modified so as to read for the purposes of this Order only as if there were inserted after sub-paragraph (e) the following—

(ea) for the carrying out of development for which development consent has been granted under the Planning Act 2008.

• (2) Section 78(1) of the 1990 Act[^f00018] applies to the development consent granted by this Order and to the Requirements except that it is modified so as to read for the purposes of this Order only as if there were inserted after paragraph (b) the following—

(ba) refuse an application for any consent, agreement or approval of that authority required by a requirement imposed on a grant of development consent or contained in a development consent order, or grant it subject to conditions; (bb) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on any consent, agreement or approval of that authority given pursuant to a requirement imposed on a grant of development consent or contained in a development consent order; (bc) fail to give notice to the applicant of their decision on an application of the kind referred to in (ba) or (bb), within the time prescribed by a development order or such extended time as may at any time be agreed in writing between the applicant and the planning authority; or

• (3) Sections 78 and 79 of the 1990 Act[^f00019] have effect in relation to any appeal under section 78(1) as so applied.

• (4) Regulation 16 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012[^f00020] applies to any application to discharge a Requirement as if the Requirement were a condition attached to the grant of planning permission.

• (5) Any orders, rules or regulations that apply to applications pursuant to conditions or the subject matter of section 78 of the 1990 Act apply to any application or appeal made under that section as modified by this article, insofar as those provisions are not inconsistent with the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and any orders, rules or other regulations made under the 2008 Act.

• (6) Appeals by the undertaker under section 78 of the 1990 Act as modified by this article must be dealt with by the Secretary of State and appropriate Minister as if the appeal were made by a statutory undertaker against a determination of an application to which section 266(1) of the 1990 Act applies, provided that the undertaker making the appeal holds a licence under section 6 of the Electricity Act 1989[^f00021].

PART 2 — PRINCIPAL POWERS

Development consent granted by Order

4

Subject to the provisions of this Order and to the Requirements, the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

Maintenance and diversion of the authorised development

5

• (1) The undertaker may at any time maintain the authorised development within the works limits and, in so far as a diversion would not be contrary to section 21 of the 2008 Act, divert the authorised development within the limits of deviation.

• (2) Any diversion of the authorised development is subject to the provisions of this Order and the Requirements.

• (3) No maintenance works whose likely significant effects on the environment are not described in the environmental statement may take place, except for maintenance works associated with an emergency.

Operation and use of authorised development

6

The undertaker may at any time operate and use the authorised development, except to the extent that this Order or an agreement made under this Order provides otherwise.

Limits of deviation

7

In carrying out, maintaining or diverting the authorised development, the undertaker may—

• (a) deviate Works No. 1, 2, 3(f), 3(k), 4, 5 and 6 laterally from the lines or situations of the authorised development shown on the works plans within the extent of the limits of deviation shown on those plans; and

• (b) deviate Works No. 1 and 2 vertically—

• (i) upwards to a limit of not less than 1.1 metres below the surface of the ground; and

• (ii) to any extent downwards as may be found to be necessary or practical to a maximum depth of 70metres below the surface of the ground,

except that sub-paragraph (i) does not apply to those parts of Works No. 1 and 2 that are built within the Yoxall AGI site, where such works may deviate upwards to a limit of 2.8 metres above ground level;

• (c) deviate or place Works No. 3, 4, 5 and 6 vertically upwards or above ground level to the height limits set for each of these works in Part 1 of Schedule 1.

Benefit of Order

8

Subject to article 9 (consent to transfer benefit of Order), this Order is for the benefit of the undertaker.

Consent to transfer benefit of Order

9

• (1) The undertaker may, with the consent of the Secretary of State,—

• (a) transfer to another person (the “transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed in writing between the undertaker and the transferee; or

• (b) grant to another person (the “lessee”) for a period agreed in writing between the undertaker and the lessee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed,

except where paragraph (3) applies, in which case no such consent is required.

• (2) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by RWE Generation UK plc.

• (3) This paragraph applies to a transfer or grant to National Grid Gas of any part of the benefit of the provisions of this Order and any related statutory rights which relate to, or may be necessary or expedient for, the construction, operation, maintenance and diversion of the NG works or any works carried out pursuant to Part 5 of Schedule 9.

PART 3 — STREETS

Street works

10

• (1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 2 (streets subject to street works) as are within the works limits and may—

• (a) break up or open the street, or any sewer, drain or tunnel under it;

• (b) tunnel or bore under the street;

• (c) place apparatus in or under the street;

• (d) maintain apparatus in or under the street or change its position; and

• (e) execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d).

• (2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

• (3) Sections 54 to 106 of the 1991 Act[^f00022] apply to any street works carried out under paragraph (1).

• (4) In this article, “apparatus” has the same meaning as in Part 3 of the 1991 Act[^f00023].

Public rights of way

11

• (1) The undertaker may create an alternative public right of way to the section of footpath named the Yoxall 59 footpath (shown by a broken orange line between the points A and C on the Yoxall AGI plan) between the points A, B and C (shown by a broken purple line on the Yoxall AGI plan).

• (2) With effect from the date of certification by the local highway authority that the agreed alternative right of way has been created in accordance with the implementation plan and specification approved under Requirement 8, the original right of way (shown by the broken orange line between the points A and C on the Yoxall AGI plan) is extinguished.

Access to works

12

The undertaker may, for the purposes of the authorised development,—

• (a) form and lay out means of accesses or improve existing means of access in the indicative locations specified in columns (1) and (2) of Schedule 3 (access to works) as shown coloured pink on sheets 1 to 7, 9 and 10 of the works plans; and

• (b) form and lay out such other means of access or improve existing means of access at such locations within the works limits as the undertaker reasonably requires for the purposes of the authorised development.

Agreements with street authorities

13

• (1) A street authority and the undertaker may enter into agreements with respect to the carrying out in or under the street of any of the works referred to in article 10(1) (street works).

• (2) Such an agreement may, without limiting paragraph (1),—

• (a) make provision for the street authority to carry out any function under this Order that relates to the street in question;

• (b) include an agreement between the undertaker and street authority specifying a reasonable time for the completion of the works; and

• (c) contain such terms as to payment and otherwise as the parties consider appropriate.

PART 4 — SUPPLEMENTAL POWERS

Discharge of water

14

• (1) The undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out or maintenance of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the works limits, make openings into, and connections with, that watercourse, public sewer or drain.

• (2) Any dispute arising from the making of connections to or the use of a public sewer or drain by the undertaker pursuant to paragraph (1) must be determined as if it were a question arising under section 106 of the Water Industry Act 1991[^f00024] (right to communicate with public sewers).

• (3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

• (4) The undertaker must not make any opening into any public sewer or drain except—

• (a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

• (b) where that person has been given the opportunity to observe the making of the opening.

• (5) The undertaker must not, in carrying out or maintaining works pursuant to this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.