The Boston Alternative Energy Facility Order 2023

• (3) The MMO must give notice of the determination of the variation to this licence within 13 weeks from the day immediately following that on which the variation was requested, or as soon as reasonably practicable after that date, subject to the undertaker providing an updated CEMP in accordance with condition 12 and adequately justifying the requested variation to the reasonable satisfaction of the MMO.

• (4) Where the MMO determines it is not reasonably practicable to make a determination in accordance with sub-paragraph (3) in 13 weeks, it must notify the undertaker as soon as reasonably practicable and provide confirmation in writing of the intended determination date.

SCHEDULE 10 — DOCUMENTS AND PLANS TO BE CERTIFIED

PART 1 — DOCUMENTS AND PLANS TO BE CERTIFIED

(1) Document name	(2) Document reference	(3) Revision number
Addendum to the outline ornithological compensation implementation and monitoring plan	9.116	0.0
Access and rights of way plans	4.5	0.0
Book of reference	3.3	2.0
Combined heat and power assessment	5.7	0.0
Compensation addendum	9.112	1.0
Compensation measures document	9.30	4.0
Design and access statement	5.3	0.0
Environmental statement	Volume 1, 6.2 Volume 2, 6.3 Volume 3, 6.4	1.0
Flood risk assessment	6.4.13	0.0
Harbour seal compensation measures document	9.110	0.0
Indicative generating station plans	4.9	2.0
Indicative wharf plans	4.11	0.0
Land plan and Crown land plan	4.2	0.0
Navigation Management Planning Process: Risk to Birds	9.70	0.0
Navigation management plan template	9.80	1.0
Navigation risk assessment	9.27	1.0
Outline air quality and dust management plan	9.39	0.0
Outline air quality deposition monitoring plan	9.51	2.0
Outline code of construction practice	7.1	0.0
Outline construction traffic management plan	7.2	0.0
Outline landscape and ecological mitigation strategy	7.4	4.0
Outline lighting strategy	7.5	0.0
Outline marine mammal mitigation protocol	9.12	3.0
Outline ornithology compensation implementation and monitoring plan	9.81	1.0
Outline surface and foul water drainage strategy	9.4	2.0
Outline written scheme of investigation	7.3	2.0
Register of environmental actions and commitments	7.6	2.0
Roman Bank plan	4.12	0.0
Works plans	4.3	2.0

PART 2 — ENVIRONMENTAL STATEMENT SUPPLEMENTS

(1) Document name	(2) Document reference	(3) Revision number
Addendum to Chapter 17 and Appendix 17.1 – Benthic Ecology, Fish and Habitats	9.15	0.0
Addendum to Environmental Statement Chapter 17 and Appendix 17.1 – Marine Mammals	9.14	1.0
Appendix 14.4 – Analysis of SO ₂ and O ₃ Concentrations to Justify Adoption of the Less Stringent Daily Mean NOx Critical Level for Protection of Vegetation	9.8	0.0
Appendix 14.5 – Human Health Risk Assessment	9.9	0.0
Appendix 14.6 – Abnormal Emissions Assessment	9.10	0.0
Chapter 17 Marine and Coastal Ecology and Appendix 17.1 – Habitats Regulations Assessment – Ornithology Addendum	9.13	0.0
Chapter 17 Marine and Coastal Ecology and Appendix 17.1 - Habitats Regulations Assessment Update	9.59	0.0
Habitats Regulations Assessment (HRA) Screening and Integrity Matrices	9.42	1.0
Indicative Construction Programme	9.18	0.0
Noise Modelling and Mapping Relating to Bird Disturbance at the Principal Application Site	9.50	0.0
Response to Environment Agency’s queries on Estuarine Processes	9.44	1.0
Updated Piling Noise Assessment	9.16	0.0
Wharf Construction Outline Methodology	9.17	0.0

SCHEDULE 11 — ORNITHOLOGY COMPENSATION MEASURES

1

In this Schedule—

• “addendum to the outline ornithological compensation implementation and monitoring plan” means the document certified by the Secretary of State as the addendum to the outline ornithology compensation implementation and monitoring plan for the purposes of this Order under article 47 (certification of documents, etc.);

• “compensation addendum” means the document “Addendum to Without Prejudice Habitats Regulations Assessment Derogation Case: Compensation Measures (for The Wash SPA)” certified by the Secretary of State as the compensation addendum for the purposes of this Order under article 47 (certification of documents, etc.);

• “compensation measures document” means the document “Without Prejudice Habitats Regulations Assessment Derogation Case: Compensation Measures” certified by the Secretary of State as the compensation measures document for the purposes of this Order under article 47 (certification of documents, etc.) as supplemented by the compensation addendum;

• “hot commissioning of line 2 of Work No. 1A” means the first date on which waste is combusted to produce steam for more than 8 hours continuously in the second waste processing line of Work No. 1A during the commissioning phase of that line;

• “OCIMP” means the ornithology compensation implementation and monitoring plan for the delivery of measures to compensate for the predicted disturbance to roosting, bathing and loafing waterbirds from The Wash SPA and Ramsar Site (and functionally linked habitat) as a result of the authorised development;

• “OEG” means the Ornithology Engagement Group, which will include, as a minimum, the relevant statutory nature conservation body and the Royal Society for the Protection of Birds and which will oversee the implementation, management and monitoring of the compensation measures;

• “outline ornithology compensation implementation and monitoring plan” means the document certified by the Secretary of State as the outline ornithology compensation implementation and monitoring plan for the purposes of this Order under article 47 (certification of documents, etc.);

• “The Haven” means the part of the River Witham, known as The Haven; and

• “The Wash SPA and Ramsar Site” means the site designated as The Wash Special Protection Area and The Wash Ramsar Site.

2

The authorised development may not be commenced until a plan for the work of the OEG has been submitted to and approved by the Secretary of State, following consultation with the members of the OEG. Such plan must include—

• (a) terms of reference of the OEG;

• (b) details of the membership of the OEG;

• (c) details of the schedule of meetings, timetable for preparation of the OCIMP and reporting and review periods;

• (d) the dispute resolution mechanism; and

• (e) minutes from all consultations with the members of the OEG and copies of any written consultation responses from the OEG.

3

Following consultation with the OEG, the OCIMP must be submitted to and approved by the Secretary of State, following consultation with all members of the OEG and the local planning authority or authorities for the land containing the compensation measures, and the relevant statutory nature conservation body. The OEG must be consulted by the Secretary of State further as required during the approval process.

4

The OCIMP submitted for the approval of the Secretary of State must be substantially in accordance with the outline ornithology compensation implementation and monitoring plan as supplemented by the addendum to the outline ornithological compensation implementation and monitoring plan.

5

The OCIMP must include measures to compensate for the predicted disturbance to roosting, bathing and loafing waterbirds from The Wash SPA and Ramsar Site (and functionally linked habitat), must be based on the criteria set out in paragraph 3.5.5 of the compensation measures document, must contain the relevant matters set out in paragraph 4.10.4 of the compensation measures document and must include in particular—

• (a) details of location(s) where compensation measures will be delivered and the suitability of the site(s) to deliver the measures (including why the location is appropriate ecologically and likely to support successful compensation);

• (b) details of landowner agreements demonstrating how the land and/or rights have been or will be bought or leased and assurances that the land management will deliver the ecology objectives of the OCIMP;

• (c) details of designs of the compensation measures and how risks from avian or mammalian predation and unauthorised human access will be mitigated;

• (d) an implementation timetable for delivery of the compensation measures that ensures all compensation measures are in place prior to the impact occurring: for the compensation for disturbance by the increased number of vessels, the measures will be in place for at least two years prior to the hot commissioning of line 2 of Work No. 1A);

• (e) criteria for assessing the effectiveness of the compensation measures;

• (f) details of the proposed ongoing monitoring and reporting on the effectiveness of the measures, including: survey methods; success criteria; timescales for the monitoring and monitoring reports to be delivered; and details of the factors used to trigger alternative compensation measures and/or adaptive management measures;

• (g) details of any adaptive management measures;

• (h) provision for annual reporting to the Secretary of State, to include details of the use of each site by waterbirds (split into species accounts) to identify barriers to success and target the adaptive management measures. This will include an account of the number of birds using each site; evidence of birds roosting, foraging and bathing around high tide periods and any evidence of continued disturbance from vessels at the authorised development and at the mouth of The Haven;

• (i) details of the management and maintenance prescriptions and a maintenance schedule appropriate to the habitats to be created at each compensation location; and

• (j) minutes from all consultations with the OEG and copies of any written consultation responses from the OEG on matters relating to the development of the OCIMP.

6

The undertaker must implement the measures as set out in the OCIMP approved by the Secretary of State, unless otherwise agreed in writing by the Secretary of State following consultation with all members of the OEG, the relevant statutory nature conservation body and the local planning authority or authorities. In particular—

• (a) for the compensation for disturbance by the increased number of vessels, no hot commissioning of line 2 of Work No. 1A may begin until two full years following the implementation of the relevant measures set out in the OCIMP have elapsed.

7

The undertaker must notify the Secretary of State of completion of implementation of the measures set out in the OCIMP.

8

Results from the monitoring scheme must be submitted at least annually to the Secretary of State and the relevant statutory nature conservation body and made publicly available. This must include details of any finding that the measures have been ineffective in creating suitable roosting site(s) to support any birds that have been displaced through disturbance by the increased numbers of vessels using The Haven as a result of the authorised development and, in such case, proposals to address this. Any proposals to address effectiveness must thereafter be implemented by the undertaker as approved in writing by the Secretary of State following consultation with the relevant statutory nature conservation body, the OEG and the local planning authority or authorities for the land containing the compensation measures.

9

Unless otherwise agreed in writing by the Secretary of State or unless the measures set out in the OCIMP have already been delivered, the undertaker must not commence construction of Work No. 1 until it has first—

• (a) provided a reasonable estimate of the cost of delivery of the compensation measures; and

• (b) put in place either—

• (i) a guarantee in respect of the reasonable estimate of costs associated with the delivery of the compensation measures; or

• (ii) an alternative form of security for that purpose,

that has been approved by the Secretary of State.

10

The compensation measures delivered under this Schedule must not be decommissioned without the written approval of the Secretary of State, following consultation with the relevant statutory nature conservation body and the OEG.

11

The OCIMP approved under this Schedule includes any amendments that may subsequently be agreed in writing by the Secretary of State, in consultation with the relevant statutory nature conservation body, the OEG and the local planning authority or authorities for the land containing the compensation measures. Any amendments to or variations of the approved OCIMP must be in accordance with the information set out in the compensation measures document and may only be approved where it has been demonstrated to the satisfaction of the Secretary of State that it is unlikely to give rise to any new or materially different environmental effects from those considered in the compensation measures document.

12

In the event of any conflict or inconsistency between the terms of the compensation measures document and the provisions of this Order, the provisions of this Order shall prevail.

SCHEDULE 12 — HARBOUR SEAL COMPENSATION MEASURES

1

In this Schedule—

• “harbour seal compensation measures document” means the document “Without Prejudice Habitats Regulations Assessment Derogation Case: Compensation Measures for Harbour Seal” certified by the Secretary of State as the harbour seal compensation measures document for the purposes of this Order under article 47 (certification of documents, etc.);

• “harbour seal compensation strategy” means a strategy for the provision of measures to compensate for predicted collision effects on harbour seals in the WNNC as a result of the authorised development;

• “harbour seal rehabilitation” means compensation to be provided which must be sufficient to rescue and rehabilitate five harbour seals per year, on average, for the duration of the operational period, with the harbour seals being released back into the WNNC if appropriate or otherwise into the same biogeographic region; and

• “WNNC” means the site designated as The Wash and North Norfolk Coast Special Area of Conservation.

2

No part of the authorised development may commence until a harbour seal compensation strategy has been submitted to and approved by the Secretary of State, following consultation with the relevant statutory nature conservation body.

3

The strategy submitted for approval must be based on the measures set out in the harbour seal compensation measures document and must include—

• (a) details of the harbour seal rehabilitation compensation measures to be provided, including the timeframe for delivery, which must allow for the harbour seal rehabilitation to commence prior to the operational period and/or prior to any impact to harbour seals as a result of any part of the authorised development occurring, whichever is the earlier;

• (b) evidence of how the harbour seal rehabilitation is to be funded and the legal mechanisms in place to ensure that harbour seal rehabilitation is funded over the specified timeframe for delivery;

• (c) an implementation plan for the harbour seal rehabilitation which must include a requirement for the undertaker to enter into a binding legal contract with Skegness Natureland Limited or any other such company or charity which is able to provide the harbour seal rehabilitation; and

• (d) details of the proposed scheme for ongoing monitoring and reporting of the effectiveness of the harbour seal rehabilitation compensation measures and any adaptive management measures.

4

The undertaker must implement the measures set out in the harbour seal compensation strategy approved under this Schedule unless otherwise agreed by the Secretary of State in writing, following consultation with the relevant statutory nature conservation body.

5

The harbour seal compensation strategy approved under this Schedule includes any amendments that may subsequently be agreed in writing by the Secretary of State, following consultation with the relevant statutory nature conservation body.

6

Results from the monitoring scheme specified in paragraph 3(d) must be submitted at least every five years, starting from the beginning of the operational period, to the Secretary of State and the relevant statutory nature conservation body and made publicly available. This must include details of any findings that the harbour seal compensation strategy has been ineffective and, in such case, proposals to address this. Any proposals to address effectiveness must thereafter be implemented by the undertaker as approved in writing by the Secretary of State following consultation with the relevant statutory nature conservation body.

Signed

Signed by the authority of the Secretary of State for Department for Energy Security and Net Zero

David Wagstaff — Deputy Director, Energy Infrastructure Planning — Department for Energy Security and Net Zero — 5th July 2023

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order grants development consent for, and authorises Alternative Use Boston Projects Ltd (“AUBP”) (referred to in this Order as the undertaker) to construct, operate and maintain a generating station with a capacity of over 50 megawatts but below 300 megawatts.

The Order also permits the undertaker to acquire, compulsorily or by agreement, land and rights in land and to use land for this purpose.

A copy of the documents referred to in Schedule 10 (documents and plans to be certified) to this Order and certified in accordance with article 47 of the Order (certification of documents, etc.) may be inspected free of charge during working hours at the offices of AUBP, 25 Priestgate, Peterborough PE1 1JL.

Footnotes

[^f00001]: 2008 c. 29. Parts 1 to 7 were amended by Chapter 6 of Part 6 of, and Schedule 13 to, the Localism Act 2011 (c. 20).

[^f00002]: S.I. 2009/2264.

[^f00003]: Section 61 was amended by section 128(2) and Schedule 13, paragraph 18 to the Localism Act 2011 (c. 20) and by section 26 of the Infrastructure Act 2015 (c. 7).

[^f00004]: Section 65 was amended by Schedule 13, paragraph 22(2) and Schedule 25, paragraph 1 to the Localism Act 2011 (c. 20) and by section 27(1) of the Infrastructure Act 2015 (c. 7).

[^f00005]: S.I. 2010/103, amended by S.I. 2012/635.

[^f00006]: S.I. 2017/572.

[^f00007]: 2008 c. 29. Section 127 was amended by section 23(2)(a), 23(2)(b) and 23(2)(c) of the Growth and Infrastructure Act 2013 (c. 27) and by paragraph 64(2) of Schedule 13(1) to the Localism Act 2011 (c. 20).

[^f00008]: 1961 c. 33.

[^f00009]: 1965 c. 56.

[^f00010]: 1980 c. 66.

[^f00011]: 1981 c. 66.

[^f00012]: 1984 c. 27.

[^f00013]: 1990 c. 8.

[^f00014]: 1991 c. 22.

[^f00015]: 2008 c. 29.

[^f00016]: 2003 c. 21.

[^f00017]: S.I. 2016/1154 as defined in paragraph 3 of Part 1 of Schedule 25.

[^f00018]: 1981 c. 67. Section 7 was amended by paragraph 9 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34). There are other amendments to this section which are not relevant to this Order.

[^f00019]: S.I. 2017/1012.

[^f00020]: 2003 c. 21.

[^f00021]: 1991 c. 59. The definition of “drainage” was substituted by paragraphs 191 and 194 of Schedule 22 to the Environment Act 1995 (c. 25).

[^f00022]: 1989 c. 29.

[^f00023]: Section 64 was amended by section 102 of, and Schedule 17 to, the Local Government Act 1985 (c. 51) and section 168(2) of, and Schedule 9 to, the New Roads and Street Works Act 1991 (c. 22).

[^f00024]: Section 184 was amended by sections 35, 37, 38 and 46 of the Criminal Justice Act 1982 (c. 48); section 4 of, and paragraph 45(11) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11); and section 168 of, and paragraph 9 of Schedule 8 and Schedule 9 to, the New Roads and Street Works Act 1991.

[^f00025]: Section 56 was amended by section 43 of, and Schedule 1 to, the Traffic Management Act 2004 (c. 18).

[^f00026]: Section 56A was inserted by section 44 of the Traffic Management Act 2004.

[^f00027]: Section 58 was amended by section 51 of, and Schedule 1 to, the Traffic Management Act 2004.

[^f00028]: Section 58A was inserted by section 52 of the Traffic Management Act 2004.

[^f00029]: Section 73A was inserted by section 55 of the Traffic Management Act 2004.

[^f00030]: Section 73B was inserted by section 55 of the Traffic Management Act 2004.

[^f00031]: Section 73C was inserted by section 55 of the Traffic Management Act 2004.

[^f00032]: Section 78A was inserted by section 57 of the Traffic Management Act 2004.

[^f00033]: Schedule 3A was inserted by section 52(2) of, Schedule 4 to, the Traffic Management Act 2004.

[^f00034]: Sections 54, 55, 57, 60, 68 and 69 were amended by sections 40(1) and (2) of, and Schedule 1 to, the Traffic Management Act 2004.

[^f00035]: As also amended by section 49(1) of the Traffic Management Act 2004.

[^f00036]: As also amended by section 49(2) and 51(9) of the Traffic Management Act 2004.

[^f00037]: As also amended by section 52(3) of the Traffic Management Act 2004.

[^f00038]: As amended by section 42 of the Traffic Management Act 2004.

[^f00039]: 2004 c. 18. There are amendments to this Act not relevant to this Order.

[^f00040]: 1991 c. 56. Section 106 was amended by sections 43(2) and 35(8)(a) and paragraph 1 of Schedule 2 to the Competition and Service (Utilities) Act 1992 (c. 43) and sections 99(2), (4), (5)(a), (5)(b),(5)(c) and 36(2) of the Water Act 2003 (c. 37) and section 32, Schedule 3, paragraph 16(1) of the Flood and Water Management Act 2010 (c. 29).

[^f00041]: S.I. 2016/1154.

[^f00042]: 1964 c. 40.

[^f00043]: 1991 c. 57.

[^f00044]: The functions of the Lands Tribunal under the 1961 Act are transferred to the Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00045]: 1981 c. 67.

[^f00046]: Inserted by section 182(2) of the Housing and Planning Act 2016 (c. 22).

[^f00047]: Inserted by section 202(2) of the Housing and Planning Act 2016 (c. 22).

[^f00048]: Inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016 (c. 22).

[^f00049]: Inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).

[^f00050]: Inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).

[^f00051]: Inserted by Schedule 17(1) paragraph 3 to the Housing and Planning Act 2016 (c. 22).

[^f00052]: 2003 c. 21.

[^f00053]: 2003 c. 21.

[^f00054]: 1991 c. 59.

[^f00055]: 1991 c. 57. Paragraph 5 was amended by section 100(1) and (2) of the Natural Environment and Rural Communities Act 2006 (c. 16), section 84 of, and paragraph 3 of Schedule 11 to, the 2009 Act (c. 23), paragraphs 40 and 49 of Schedule 25 to the Flood and Water Management Act 2010 (c. 29) and S.I. 2013/755. Paragraph 6 was amended by paragraph 26 of Schedule 15 to the Environment Act 1995 (c. 25), section 224 of, and paragraphs 20 and 24 of Schedule 16, and Part 5(B) of Schedule 22, to, the 2009 Act and S.I. 2013/755. Paragraph 6A was inserted by section 103(3) of the Environment Act 1995.

[^f00056]: S.I. 2016/1154.

[^f00057]: 2017 c. 20.

[^f00058]: 1857 c. 81.

[^f00059]: S.I. 2010/948, amended by S.I. 2011/987; there are other amending instruments but none are relevant to this Order.

[^f00060]: type=start slip=2024-03-01 time=17116348067551812. c. cvtype=end slip=2024-03-01 time=1711634806755.

[^f00061]: type=start slip=2024-03-01 time=17116348126941812 c. cviiitype=end slip=2024-03-01 time=1711634812694.

[^f00062]: 1880 c. cliii.

[^f00063]: 1881 c. cxii.

[^f00064]: 1925 c. lxxi.

[^f00065]: S.I. 2017/1329.

[^f00066]: S.I. 2012/605.

[^f00067]: 1967 c. 10.

[^f00068]: 1990 c. 43. Section 82 was amended by section 103 of the Clean Neighbourhoods and Environment Act 2005 (c. 16); section 79 was amended by sections 101 and 102 of the same Act. There are other amendments not relevant to this Order.

[^f00069]: 1974 c. 40.

[^f00070]: 1978 c. 30.

[^f00071]: 1984 c. 27.

[^f00072]: S.I. 2012/2920.

[^f00073]: 1974 c. 40.

[^f00074]: 1971 c. 80.

[^f00075]: 1989 c. 29.

[^f00076]: 1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c. 45), and was further amended by section 76 of the Utilities Act 2000 (c. 27).

[^f00077]: 1991 c. 56.

[^f00078]: Section 102(4) was amended by section 96(1)(c) of the Water Act 2003 (c. 37). Section 104 was amended by sections 96(4) and 101(2) of, and Part 3 of Schedule 9 to, the Water Act 2003 and section 42(3) of the Flood and Water Management Act 2010 (c. 29) and section 11(1) and (2) of, and paragraphs 2 and 91 of Schedule 7 to the Water Act 2014 (c. 21).

[^f00079]: 2003 c. 21.

[^f00080]: See section 106. Section 106 was amended by section 4(3) to (9) of the Digital Economy Act 2017 (c. 30).

[^f00081]: 1991 c. 22.

[^f00082]: 1949 c. 74.

[^f00083]: 1991 c. 59.

[^f00084]: 1991 c. 56.

[^f00085]: S.I. 2016/1154.

[^f00086]: 2009 c. 23.

[^f00087]: 1971 c. 80.

[^f00088]: 1995 c. 21.