The Abergelli Power Gas Fired Generating Station Order 2019

Made: 19th September 2019

Coming into force: 10th October 2019

Accordingly, the Secretary of State, in exercise of the powers in sections 114, 115, and 120 of the 2008 Act, makes the following Order—

PART 1 — PRELIMINARY

Citation and commencement

1

This Order may be cited as the Abergelli Power Gas Fired Generating Station Order 2019 and comes into force on 10th October 2019.

Interpretation

2

• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961[^f00006];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00007];

• “the 1980 Act” means the Highways Act 1980[^f00008];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00009];

• “the 1986 Act” means the Gas Act 1986[^f00010]

• “the 1989 Act” means the Electricity Act 1989[^f00011]

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00012];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00013];

• “the 2008 Act” means the Planning Act 2008[^f00014];

• “Abergelli Power Limited” means Abergelli Power Limited (Company No. 8190497) whose registered office is at Drax Power Station, Drax, Selby, United Kingdom, YO8 8PH;

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

• “apparatus” has the same meaning as in Part 3 of the 1991 Act;

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

• “book of reference” means the book of reference with submission document reference number 4.3 and which is 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;

• “commence” means beginning to carry out any material operation, as defined in section 155 of the 2008 Act (which explains when development begins), comprised in or carried out for the purposes of the authorised development other than operations consisting of environmental surveys and monitoring, investigations for the purpose of assessing ground conditions (including investigations necessary for the discharge of requirements 14 (site investigation), 15 (mineral resources survey) and 16 (peat management plan)) receipt and erection of construction plant and equipment, erection of any temporary means of enclosure associated with and for the duration of the other works excluded from this definition of commence, the temporary display of site notices or advertisements and the words “commencement” and “commenced” and cognate expressions are to be construed accordingly;

• “commissioning” means the process of testing all systems and components of the authorised development (which are installed or in relation to which installation is near complete) in order to ensure that they, and the authorised development as a whole, functions in accordance with the plant design specifications and the undertaker’s operational and safety requirements;

• “date of completion of construction” means the date on which the construction of the authorised development is complete including rectification of any construction defects, landscaping and reinstatement works;

• “date of final commissioning” means the date on which the authorised development commences operation by generating power on a commercial basis but excluding the generation of power during commissioning;

• “design principles statement” means the design principles statement with submission document reference number 10.2 and certified as such by the Secretary of State for the purposes of this Order;

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

• “environmental statement” means the environmental statement submitted with submission document reference numbers 6.1, 6.2, 6.3, 6.4.0 and which is certified as such by the Secretary of State for the purposes of this Order;

• “exhaust gas emission flue stack” means the exhaust gas emission flue stack including ancillary support structures, sound proof cladding, and emissions monitoring platforms;

• “footpath” and “footway” have the same meaning as in the 1980 Act;

• “flood consequences assessment” means the flood consequences assessment contained in appendix 9.1 of the environmental statement and certified as the flood consequences assessment by the Secretary of State for the purposes of this Order;

• “gas turbine generator” means one gas turbine which drives a single electricity generator for the purposes of generating electricity including air inlet filter house, air inlet duct, exhaust diffuser, and auxiliaries such as lube oil system, air dryers, fuel gas filter package, instrument air system and compressor washing;

• “gross rated electrical output” means the aggregate of gross electrical power as measured at the terminals of the generator in accordance with standards agreed with the regulating authority under the Environmental Permitting (England and Wales) Regulations 2016[^f00015];

• “hedgerow plan” means the hedgerow plan with submission document reference 2.9 and which is certified as the hedgerow plan by the Secretary of State for the purposes of this Order;

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

• “land plans” means the plans with submission document reference number 2.2 and which are certified as the land plans by the Secretary of State for the purposes of this Order;

• “limits of deviation” means in respect of numbered works 1, 2 and 3 the outer limits of the corresponding numbered area shown on the works plans;

• “maintain” includes inspect, repair, adjust, alter, remove, refurbish, reconstruct, replace and improve any part, but not the whole of, the authorised development but only insofar as such activities are unlikely to give rise to any materially new or different environmental effects from those assessed in the environmental statement and for the avoidance of doubt “maintain” shall not entitle the undertaker to remove or reconstruct the whole of work no. 1, and “maintenance” and “maintaining” are to be construed accordingly;

• “National Grid” has the definition set out in paragraph 18 of Schedule 11 to this Order;

• “Order land” means the land which is required for, or is required to facilitate, or is incidental to, or is affected by, the authorised development shown on the land plans and described in the book of reference;

• “Order limits” means the limits shown on the works plans;

• “outline construction environment management plan” means the outline construction environment management plan revision 2 which is certified as the outline construction environmental management plan by the Secretary of State for the purposes of this Order;

• “outline construction staff travel plan” means the outline construction staff travel plan contained in appendix 3.3b of the environment statement and which is certified as the outline construction staff travel plan by the Secretary of State for the purposes of this Order;

• “outline construction traffic management plan” means the outline construction traffic management plan contained in appendix 3.3a of the environmental statement and which is certified as the outline construction traffic management plan by the Secretary of State for the purposes of this Order;

• “outline drainage strategy” means the outline drainage strategy revision 1 which is certified as the outline drainage strategy by the Secretary of State for the purposes of this Order;

• “outline landscape and ecological mitigation strategy” means the outline landscape and ecological mitigation strategy revision 4 which is certified as the outline landscape and ecological mitigation strategy by the Secretary of State for the purposes of this Order;

• “outline lighting strategy” means the outline lighting strategy contained in appendix 3.5 of the environmental statement and which is certified as the outline lighting strategy by the Secretary of State for the purposes of this Order;

• “outline surface water management plan” means the outline surface water management plan in appendix 3.2 of the environmental statement and which is certified as the outline surface water management plan by the Secretary of State for the purposes of this Order;

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00016];

• “relevant planning authority” means the City and County of Swansea Council in relation to land in its area;

• “requirements” means those matters set out in Schedule 2 to this Order;

• “rights of way, streets and access plan” means the plan with submission document reference number 2.4 revision 1 and which is certified as the rights of way, streets and access plan by the Secretary of State for the purposes of this Order;

• “shut down period” means the period set out in requirement 23 during which construction workers may return to the site office to return safety and other equipment, attend debrief sessions, change clothing and prepare to leave site but during which period no plant or machinery may be operated other than site maintenance machinery and plant such as generators, wheel washes and road sweepers;

• “start–up period” means the period set out in requirement 23 during which construction workers may arrive at site, sign in, don personal protective equipment, attend safety and other briefings and mobilise on site but during which no plant or machinery may be operated;

• “statutory undertaker” means any person falling within section 127(8) of the 2008 Act and includes a public communications provider as defined by the Communications Act 2003[^f00017];

• “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 any footpath and “street” includes any part of a street;

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

• “traffic authority” has the same meaning as in the 1984 Act;

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

• “undertaker” means Abergelli Power Limited or the person who for the time being has the benefit of this Order in accordance with articles 6 and 7 of this Order;

• “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

• “works plans” means sheet 1 of 2 and sheet 2 of 2 of the plans with submission document reference number 2.3 and which are certified as the works plans by the Secretary of State for the purposes of this Order.

• (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 airspace above its surface and references in this Order to the imposition of restrictions are references to restrictive covenants over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or over which rights are created and acquired under this Order or is otherwise comprised in this Order.

• (3) All distances, directions and lengths referred to in this Order (save for the parameters set out in Table 2 of Schedule 2) are approximate and distances between lines or points on a numbered work comprised in the authorised development and shown on the works plan and rights of way, streets and access plan are to be taken to be measured along that work.

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

• (5) References in this Order to numbered works are references to the works comprising the authorised development as numbered in Schedule 1 (authorised development) and shown on the works plans.

• (6) A reference to numbered work 1 means 1A to 1F (inclusive) and a reference to numbered work 5 means 5A and 5B comprising part of the authorised development as numbered in Schedule 1 (authorised development).

• (7) References in this Order to points identified by letters or numbers are to be construed as points so lettered or numbered on the rights of way, streets and access plan.

• (8) The expression “includes” is to be construed without limitation.

• (9) References to any statutory body include that body’s successor bodies as from time to time have jurisdiction over the authorised development.

PART 2 — PRINCIPAL POWERS

Development consent etc. granted by the Order

3

• (1) 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.

• (2) Subject to paragraph (3), each numbered work may only be situated within the numbered area shown on the works plans.

• (3) In constructing each numbered work, the undertaker may deviate within the corresponding numbered area(s) shown on the works plans up to the limits of deviation.

Maintenance of authorised development

4

• (1) 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.

• (2) This article only authorises the carrying out of maintenance works within the Order limits.

Operation of authorised development

5

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

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

Benefit of this Order

6

Subject to article 7 (consent to transfer benefit of the Order), the provisions of this Order have effect solely for the benefit of Abergelli Power Limited.

Consent to transfer benefit of the Order

7

• (1) Subject to paragraph (4), the undertaker may—

• (a) transfer to another person (“the transferee”) any or all of the benefit of the provisions of this Order (including any of the numbered works) 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 between the undertaker and the lessee any or all of the benefit of the provisions of this Order which resides for the time being in the undertaker (including any of the numbered works) and such related statutory rights as may be so agreed in writing by the undertaker and lessee.

• (2) Where a transfer or grant has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraph (3) include references to the transferee or the lessee.

• (3) 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.

• (4) The consent of the Secretary of State is required for the exercise of the powers of paragraph (1) except where—

• (a) the transferee or lessee is the holder of a licence under section 6 of the 1989 Act or section 7 of the 1986 Act; or

• (b) the time limits for all 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 that have been made have all been compromised or withdrawn;

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

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

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

• (5) Where the consent of the Secretary of State is not required under paragraph (4), the undertaker must give notice to the Secretary of State in writing before transferring or granting a benefit referred to in paragraph (1).

• (6) The notice referred to in paragraph (5) must state—

• (a) the name and contact details of the person to whom the benefit of the powers will be transferred or granted;