Infrastructure Planning PART 1 PRELIMINARY Citation and commencement 1 This Order may be cited as the Wheelabrator Kemsley K3 Generating Station Order 2021 and comes into force on 15th March 2021. Interpretation 2 1 In this Order— “the 1961 Act” means the Land Compensation Act 1961 ; “the 1980 Act” means the Highways Act 1980 ; “the 1989 Act” means the Electricity Act 1989 ; “the 1990 Act” means the Town and Country Planning Act 1990 ; “the 1991 Act” means the New Roads and Street Works Act 1991 ; “the 2008 Act” means the Planning Act 2008 ; “the 2016 Regulations” means the Environmental Permitting (England and Wales) Regulations 2016 ; “authorised development” means the development and associated 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 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; “commissioning” means the process of testing all systems and components of Work No 1 (including systems and components which are not yet installed but the installation of which is near to completion), in order to verify that they function in accordance with the design objectives, specifications and operational requirements of the undertaker; and “commission” and other cognate expressions are to be construed accordingly; “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 on 11 September 2019 including all appendices thereto; “highway” and “highway authority” have the same meaning as in the 1980 Act; “K3 Generating Station” means a generating station having a capacity of up to 75MW, which was originally commissioned on 16 July 2020 pursuant to the K3 Sustainable Energy Plant Planning Permission and the approved plans and documents listed in Part 2 of Schedule 2 permitting the construction and operation of a generating station having a capacity of up to 49.9MW; “K3 Sustainable Energy Plant Planning Permission” means planning permission SW/19/501345 granted on 14 June 2019 by Kent County Council pursuant to section 73 of the 1990 Act permitting the construction and operation of a generating station having a capacity of up to 49.9MW; “land plan” means the plan certified as the land plan by the Secretary of State for the purposes of this Order; “maintain” includes (i) inspect, repair, adjust, alter, refurbish or improve the authorised development and (ii) in relation to any part (but not the whole of the authorised development) remove, reconstruct or replace that part provided those works do not give rise to any materially new or materially different environmental effects to those identified in the environmental statement; and “maintenance” is construed accordingly; “MW” means megawatts of electrical output; “operational use” of the development comprising the authorised development means operational use for the purposes for which it is authorised under this Order but not including commissioning; “Order land” means the land shown on the land plan within the Order limits and described in the book of reference; “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 of the Acquisition of Land Act 1981 ; “relevant highway authority” means the highway authority for the area in which the relevant highway to which the relevant provision of this Order applies is situated; “relevant planning authority” means the local 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 Schedule 2 (requirements) to this Order; “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 (subject to confirmation from the relevant highway authority), 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; “undertaker” means WTI/EFW Holdings Ltd. (company number 07593865) or any other person who for the time being has the benefit of this Order in accordance with article 8 of this Order; “watercourse” includes all rivers, streams, ditches, drains, creeks, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and “works plan” means the plan certified as the works plan by the Secretary of State for the purposes of the Order. 2 A reference in this Order to a “grid reference” is a reference to the map co-ordinates on the National Grid used by the Ordnance Survey. 3 All distances, directions and lengths referred to in this Order are approximate. 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 Schedule 1 of this Order. 5 The expression “includes” shall be construed without limitation. PART 2 PRINCIPAL POWERS Development consent etc. granted by the Order 3 Subject to the provisions of this Order and to the requirements in Schedule 2 the undertaker is granted development consent for the authorised development to be carried out within the Order limits. Effect of the Order on the K3 Sustainable Energy Plant Planning Permission 4 1 The undertaker may not start operational use of the K3 Generating Station under this Order until notice has been served on the relevant planning authority that the undertaker is ceasing to operate the K3 Sustainable Energy Plant under the K3 Generating Station Planning Permission. 2 Upon service of the notice under paragraph (1) the K3 Sustainable Energy Plant Planning Permission will cease to have effect. Authorisation of the operation of the authorised development 5 1 The undertaker is authorised to operate the generating station forming part of the authorised development. 2 Paragraph (1) does not relieve the undertaker of any requirement to obtain any permit or licence under any other legislation that may be required to authorise the operation of a generating station. Power to maintain authorised development 6 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. Benefit of the Order 7 Subject to article 8 (consent to transfer benefit of order), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker. Consent to transfer benefit of the Order 8 1 Except where paragraph (4) applies, the undertaker may with the written 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 between the undertaker and the lessee. 2 Where an agreement has been made in accordance with sub-paragraph (1) references in this Order to the undertaker, except in paragraph (3) , include references to the transferee or 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 a transfer or grant under this article, except where— a the transfer or grant is made to K3 CHP Limited (Company number 09240062); or b the transfer or grant is made to a licence holder within the meaning of section 6(1) of the 1989 Act. 5 Where the consent of the Secretary of State is not required under paragraph (4) the undertaker must provide written notification to the Secretary of State and the relevant planning authority at least 14 days prior to transferring and/or granting any benefit under paragraph (1). PART 3 SUPPLEMENTARY POWERS Access to works 9 The undertaker may with the approval of the relevant highway authority, form and lay out such means of access or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development. Discharge of water 10 1 Subject to paragraphs (3) to (5) 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 Order limits, make openings into, and connections with, the 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) shall be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (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 shall 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 shall not be unreasonably withheld; and b where that person has been given the opportunity to supervise 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 without the prior written consent of the Environment Agency. 6 The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension. 7 This article does not authorise a groundwater activity or a water discharge activity for which an environmental permit would be required under regulation 12 of the 2016 Regulations. 8 In this article— a “public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board or a local authority; and b other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act. Authority to survey and investigate the land 11 1 The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised development and— a survey or investigate the land; b without prejudice to the generality of sub-paragraph (a) , make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples; c without prejudice to the generality of sub-paragraph (a) , carry out ecological or archaeological investigations on such land; and d place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes. 2 No land may be entered or equipment placed or left on or removed from the land under sub-paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land. 3 Any person entering land under this article on behalf of the undertaker— a must if so required on entering the land, produce written evidence of their authority to do so; and b may take with them such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes. 4 No trial holes shall be made under this article— a in land located within the highway boundary without the consent of the highway authority; or b in a private street without the consent of the street authority. 5 A consent for the purpose of sub-paragraph (4)(a) or (b) may be given subject to such terms and conditions as the authority giving it may reasonably impose, but may not be unreasonably withheld. 6 As soon as practicable following the exercise of any powers under paragraph (1), any vehicles, apparatus or equipment must be removed and the land shall be restored to the reasonable satisfaction of the owners of the land. 7 The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the authority conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act. Felling or lopping of trees 12 1 The undertaker may fell or lop any tree or shrub within the Order limits, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development. 2 In carrying out any activity authorised by paragraph (1) , the undertaker must do no unnecessary damage to any tree or shrub and must 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, shall be determined under Part 1 of the 1961 Act. PART 4 MISCELLANEOUS AND GENERAL Defence to proceedings in respect of statutory nuisance 13 1 Paragraph (2) applies where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (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). 2 No order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance— 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 is attributable to that construction or maintenance— i in accordance with a notice served under section 60 (control of noise on construction site) of the Control of Pollution Act 1974 ; ii in accordance with a consent given under section 61 of that Act (prior consent for work on construction site); or b is a consequence of the construction, maintenance or operation of the authorised development and cannot reasonably be avoided. 3 Section 61(9) (prior consent for work on construction site) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for purposes of or in connection with the construction or maintenance of the authorised development. Application of landlord and tenant law 14 1 This article applies to— a any agreement for leasing to any person the whole or any part of the authorised development or the right to operate the same; and b any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use. 2 No enactment or rule of law regulating the rights and obligations of landlords and tenants shall prejudice the operation of any agreement to which this article applies. 3 Accordingly, no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to— 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; 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 c restrict enforcement (whether by action for damages or otherwise) by any part to the lease of any obligation of any other party under the lease. Operational land for purposes of the 1990 Act 15 Development consent granted by this Order shall be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as not being operational land). Certification of plans etc 16 The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of— a the book of reference (dated August 2020); b the land plan (drawing number 9812-0071-02 dated July 2020); c the work plan (drawing number 9812-0072-02 dated July 2020); d the environmental statement (dated September 2019); e the K3 Generating Station approved plans as follows: i 16315-A1-P-0100 4.3D Proposed Site Layout Rev U dated November 2009; ii 16315-A1-P-0110 4.4D South East Elevation Rev U dated November 2009; iii 16315-A1-P-0111 4.5D North East Elevation Rev T dated November 2009; iv 16315-A1-P-0112 4.6D South West Elevation Rev U dated November 2009; v 16315-A1-P-0113 4.7D North West Elevation Rev T dated November 2009; vi 16315-A1-4.21 Landscape Masterplan Rev M dated June 2013; f the K3 rail and water transportation strategy (dated September 2019); g the Design and Access Statement dated September 2019; h the draft K3 operational traffic routing and management plan; and i the draft K3 travel plan – Highways England version (dated 7 August 2020) for certification that they are true copies of the documents referred to in this Order. 2 A plan or document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy. Arbitration 17 Any difference under any provision of this Order, unless otherwise provided for, shall be referred to and settled in writing by a single arbitrator to be agreed between the parties, or failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State. Procedure in relation to certain approvals 18 1 Where an application is made to or request is made of the relevant planning authority, a highway authority, a street authority or the owner of a watercourse, sewer or drain 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 may not be unreasonably withheld. 2 Schedule 3 (procedure for discharge of requirements) has effect in relation to all agreements or approvals granted, refused or withheld in relation to Schedule 2 (requirements). Service of notices 19 1 A notice or other document required or authorised to be served for the purposes of this Order may be served— a by post; 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 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 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— a in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and 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— 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 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— 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; b the notice or document is capable of being accessed by the recipient; c the notice or document is legible in all material respects; and 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 communication 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— a that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and 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 7 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. 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. Signed by authority of the Secretary of State for Business, Energy and Industrial Strategy Gareth Leigh Head of Energy Infrastructure Planning Department for Business, Energy and Industrial Strategy 19th February 2021