The Knottingley Power Plant Order 2015

Made: 10th March 2015

Coming into force: 1st April 2015

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 120 and 147 of the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Knottingley Power Plant Order 2015 and comes into force on 1st April 2015.

Interpretation

2

• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961[^f00004];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00005];

• “the 1980 Act” means the Highways Act 1980[^f00006];

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00007];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00008];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00009];

• “the 2008 Act” means the Planning Act 2008;

• “access to works plan” means the plan certified as the access to works plan by the Secretary of State for the purposes of the Order and submitted with the application (drawing number KPL-APFP_5_2_K-2.8, sheet 1 revision F, sheet 2 revision E, sheet 3 revision D, sheet 4 revision E, sheet 5 revision E);

• “authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development), which is development within the meaning of section 32 of the 2008 Act;

• “the 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;

• “CCS” means carbon capture and storage;

• “the Coal Authority” means the Coal Authority established under the Coal Industry Act 1994;

• “commence”, unless otherwise provided for, means beginning to carry out any material operation (as defined in section 155 of the 2008 Act) forming the relevant part of the authorised development other than operations consisting of preliminary works, site clearance, demolition work, archaeological investigations, environmental surveys, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, diversion and laying of services, erection of any temporary means of enclosure, the temporary display of site notices or advertisements and “commencement” is construed accordingly;

• “commissioning” means the process of assuring that all systems and components of the authorised development (which are installed or installation is near to completion) are tested to verify that they function and are operable in accordance with the design objectives, specifications and operational requirements of the undertaker;

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

• “environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of this Order and submitted with the application together with any supplementary or further environmental information submitted by the undertaker in support of the application;

• “flood risk assessment” means section K.1 of the environmental statement’s Appendix 1 (“Flood Risk Assessment”); section 20.8 of the environmental statement (“Assessment of Flood Risk”); and the Flood Risk Assessment Addendum (cooling water pipeline and pump house) (reference JL30840-NHY-RP-001 Rev D dated 4th April 2014);

• “highway” and “highway authority” have the same meaning as in the 1980 Act;

• “indicative AGI layout drawings” means the drawings certified as the indicative above ground installation layout drawings by the Secretary of State for the purposes of the Order and submitted with the application (drawing number 3511480B/KN-CDR/2012/401, revision M);

• “indicative generating station layout drawings” means the drawings certified as the indicative generating station layout drawings by the Secretary of State for the purposes of the Order and submitted with the application (drawing number ESBI/KPL/PL/01, revision C);

• “indicative overhead lines and pylons layout drawings” means the drawings certified as the indicative overhead lines layout drawings by the Secretary of State for the purposes of the Order and submitted with the application (drawing number 90NG475/12/01, revision D, drawing number 90NG475/10/01, revision B, drawing number 90NG475/10/02, revision B);

• “indicative pump house layout drawing” means the drawing certified as the indicative pump house layout drawing by the Secretary of State for the purposes of the Order and submitted with the application (drawing number PP-DT-00077-D505-012, revision 1);

• “ISO Conditions” means ambient temperature of 15° Celsius, relative humidity 60% and ambient pressure of 1 bar;

• “land” includes land covered by water and any interest or right in, to or over land;

• “the land plan” means the plan certified as the land plan by the Secretary of State for the purposes of this Order (key plan drawing number Land/001 revision 9, sheet 1 drawing number Land/002 revision 9, sheet 2 drawing number Land/003 revision 9, sheet 3 drawing number Land /004 revision 9, sheet 4 drawing number Land/005 revision 9, sheet 5 drawing number Land/006 revision 9, sheet 6 drawing number Land/007 revision 9, sheet 7 drawing number Land/008 revision 9);

• “maintain” includes, to the extent assessed in the environmental statement, inspect, maintain, repair, adjust, alter, refurbish, improve, clear, and remove; and “maintenance” is construed accordingly;

• “operational phase” means the period of time that the relevant part of the authorised development is in operation after construction and commissioning is complete, which begins on the date specified in the operational phase notice and “operational” and “operation” should be construed accordingly;

• “operational phase notice” means a written notice served by the undertaker on the relevant planning authority and the Environment Agency confirming that the operational phase is about to be begin or has begun, in accordance with Requirement 35 in Part 2 of Schedule 1;

• “the Order land” means the land shown on the land plan which is within the limits of land to be acquired and described in the book of reference;

• “the Order limits” means the limits shown on the works plan within which the authorised development may be carried out;

• “owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981[^f00010];

• “preliminary works” means landscaping and creative conservation, providing these operations do not require the delivery to or removal from the site of bulk filling materials; surveys, including geotechnical surveys; provision of wheel cleansing facilities; erection of temporary fencing; site security; preparation of contractor’s laydown areas; and any other works agreed in writing with the relevant planning authority to constitute permitted preliminary works;

• “public rights of way temporary closures and permanent stopping up plan” means the document certified as the public rights of way temporary closures and permanent stopping up plan by the Secretary of State for the purposes of the Order and submitted with the application (drawing number KPL-APFP_5_2_k-2.9, sheet 1 revision G, sheet 2 revision D, sheet 3 revision D, sheet 4 revision D, sheet 5 revision G);

• “relevant highway authority” means the highway authority for the area in which the land to which the relevant provision of this Order applies is situated;

• “relevant local authority” means the local authority for the area in which the land to which the relevant provision of this Order applies is situated;

• “relevant planning authority” means the planning authority for the area in which the land to which the relevant provision of this Order applies is situated;

• “Requirements” means those matters set out in Part 2 (Requirements) of Schedule 1;

• “statutory undertaker” means any person falling within section 127(8), 128(5) or 129(2) of the 2008 Act;

• “street” means a street within the meaning of section 48 of the 1991 Act, 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;

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

• “undertaker” means Knottingley Power Limited (company number 05902446);

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

• “the works plan” means the plan certified as the works plan by the Secretary of State for the purposes of this Order (drawing number KPL-APFP_5_2_J-2.3, sheet 1 revision F, sheet 2 revision D, sheet 3 revision D, sheet 4 revision D, sheet 5 revision D).

• (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 and distances between points on a work comprised in the authorised development are taken to be measured along that work.

• (4) Any reference in this Order to a work identified by the number of the work is to be construed as a reference to the work of that number authorised by this Order, described in Part 1 of Schedule 1 and shown on the works plan.

• (5) The expression “includes” shall be construed without limitation.

• (6) All areas described in square metres in the book of reference are approximate.

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

3

Subject to the provisions of this Order and to the Requirements in Part 2 of Schedule 1, the undertaker is granted development consent for the authorised development in Part 1 of Schedule 1 to be carried out within the Order limits, and Schedule 1 (authorised development) has effect for that purpose.

Power to maintain authorised development

4

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

PART 3 — OPERATIONS

Operation of generating station

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• (1) The undertaker is hereby authorised to operate the generating station and associated plant comprised in the authorised development.

• (2) This article does not relieve the undertaker of any requirement to obtain any permit or licence under any other legislation that may be required from time to time to authorise the operation of an electricity generating station.

Limits of deviation

6

In carrying out the authorised development the undertaker may—

• (a) deviate laterally from the lines or situations of the authorised development shown on the works plan to the extent of the limits of deviation shown on that plan; and

• (b) deviate vertically to any extent downwards as may be found necessary or convenient.

Benefit of the Order

7

• (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 between the undertaker and the transferee; or

• (b) 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 this Order and such related statutory rights as may be so agreed

except where paragraph (5) applies in which case no such consent is required.

• (2) Consent under paragraph (1) may not be unreasonably withheld or delayed.

• (3) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (4), include references to the transferee or lessee.

• (4) 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 the undertaker.

• (5) This paragraph applies where—

• (a) the transferee or lessee is a person who holds a licence under section 6 of the Electricity Act 1989[^f00011] or section 7 of the Gas Act 1986[^f00012]; or

• (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—

• (i) no such claims have been made;

• (ii) any such claims have been made and have been compromised or withdrawn;

• (iii) compensation has been paid in final settlement of any such claims;

• (iv) payment of compensation into court has taken place in lieu of settlement of any such claims; or

• (v) it has been determined by the tribunal or court of competent jurisdiction in respect of any such claims that no compensation is payable.

• (6) The provisions of articles 10 (street works), 12 (public rights of way), 18 (compulsory acquisition of land), 21 (compulsory acquisition of rights and imposition of restrictive covenants), 27 (temporary use of land for carrying out the authorised development) and 28 (temporary use of land for maintaining the authorised development) have effect only for the benefit of the named undertaker and a person who is a transferee or lessee and also holds a licence under section 6 of the Electricity Act 1989 or section 7 of the Gas Act 1986.

• (7) The provisions of article 10 (street works) in addition only have effect for the benefit of the named undertaker and a person who is a transferee or lessee and is also a street authority.

Application and modification of legislative provisions

8

Regulation 6 of the Hedgerows Regulations 1997[^f00013] is modified so as to read for the purposes of this Order only as if there were inserted after paragraph (1)(j) the following—

(k) or for carrying out development which has been authorised by development consent made pursuant to the Planning Act 2008.

Defence to proceedings in respect of statutory nuisance

9

• (1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990[^f00014] (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order may be made, and no fine may be imposed, under section 82(2)[^f00015] 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 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) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974[^f00016]; 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—

• (i) relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development which is being used in compliance with a noise management scheme approved by the relevant planning authority under Requirement 23 (control of noise – operational phase); or

• (ii) is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

• (2) Section 61(9) (consent for work on construction site to include statement that it does not itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), 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.

PART 4 — 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 Order limits and may—

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

• (b) drill, tunnel or bore under the street;

• (c) place apparatus in the street;

• (d) maintain apparatus in 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) The provisions of sections 54 to 106 of the 1991 Act [^f00017] 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.

Stopping up of street

11

• (1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the streets specified in column (2) of Schedule 3 (streets to be stopped up) to the extent specified.

• (2) No street specified in column (2) of Schedule 3 (being a street to be stopped up for which a substitute is to be provided) may be wholly or partly stopped up under this article unless—