TRANSPORT AND WORKS, ENGLAND PART I PRELIMINARY Citation and commencement 1 This Order may be cited as the Lynn Offshore Wind Farm Order 2003 and shall come into force on 19th November 2003. Interpretation 2 1 In this Order— “the Applications Rules ” means the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000; “authorised works” means the scheduled works and any other works authorised by this Order; “Civil Aviation Authority” means the body corporate called the Civil Aviation Authority constituted by the Civil Aviation Act 1982 ; “ the Company ” means AMEC Offshore Wind Power Limited or any person to whom the powers conferred by this Order are transferred in an agreement pursuant to article 19 of this Order; “the Crown Estate Lease” means the lease to be made between the Crown Estate Commissioners and the Company comprising the areas of the seabed used by the Company in constructing and operating the authorised works; “the deposited plans” means the plans certified by the Secretary of State as the deposited plans for the purposes of this Order; “mean sea level” means the average of the averages of the predicted heights of high water spring, high water neap, low water spring and low water neap tides as taken from Admiralty Chart 108 Edition number 6 dated 14th December 2002 resulting in a sea level of 3.9 metres above Skegness Chart Datum which level shall be used for the purposes, and duration, of this Order; “the limits of deviation” means the limits of deviation for the scheduled works shown on the deposited plans; “maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace and “maintenance” shall be construed accordingly; “notice to mariners” includes any notice which may be issued to mariners by the Admiralty, Trinity House, Queen’s Harbourmasters, government departments and harbour and pilotage authorities; “the relevant coastal authority” means every local planning authority whose area has a boundary which lies within 15 kilometres of any point of the scheduled works; “scheduled works” means the works specified in Schedule 1 to this Order or any part of them; “the sections” means the sections certified by the Secretary of State as the sections for the purposes of this Order; “ Trinity House ” means the Corporation of Trinity House of Deptford Strond; and “turbine” means a wind turbine generator. 2 All directions, distances, lengths and points stated in any description of the scheduled works or powers shall be construed as if the words “or thereabouts” were inserted after each such direction, distance, length and point. PART II WORKS PROVISION Principal powers Power to construct and maintain scheduled works 3 1 The Company may construct and maintain the scheduled works. 2 Subject to article 4 below, the scheduled works may only be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the sections. 3 The Company may carry out within the limits of deviation such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works. Power to deviate 4 1 In constructing or maintaining any of the scheduled works, the Company may— a deviate laterally from the lines or situations shown on the deposited plans within the limits of deviation relating to that work so shown; and b deviate vertically from the levels shown on the sections to any extent not exceeding 5 metres upwards and to any extent downwards. 2 There shall be a minimum distance of 25 metres between the lowest part of the wind turbine blade and mean sea level. Authorised works Authorised works not to be executed without approval of the Secretary of State 5 1 No authorised works shall be constructed, altered, replaced, relaid or reconstructed except in accordance with the deposited plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before the work has begun. 2 If the authorised works are constructed, altered, replaced, relaid or reconstructed in contravention of this article or of any condition or restriction imposed under this article— a the Secretary of State may by notice in writing require the Company at its own expense to remove the authorised works or any part thereof and restore the site to its former condition; and if on the expiration of a period of 30 days beginning with the date on which the notice is served upon the Company it shall have failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice, or; b if it appears to the Secretary of State urgently necessary so to do, she may remove the authorised works or part of it and restore the site to its former condition; and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the Company. Navigation aids on and navigational information about authorised works during construction 6 The Company shall at or near the authorised works during the whole time of the construction, alteration, replacement, relaying or re-construction thereof, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct. Provision against danger to navigation 7 In case of injury to or destruction or decay of the authorised works or any part thereof, the Company shall as soon as is reasonably practicable notify Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may from time to time direct. Abatement of authorised works abandoned or decayed 8 1 Where the authorised works are abandoned or suffered to fall into decay the Secretary of State may by notice in writing require the Company at its own expense either to repair and restore the authorised works or any part thereof, or to remove the work and restore the site to its former condition, to such an extent and within such limits as may be specified in the notice. 2 If, on the expiration of 30 days from the date when a notice under this article is served upon the Company, it has failed to comply with the requirements of the notice, the Secretary of State may execute the work specified in the notice and any expenditure incurred by her in so doing shall be recoverable from the Company. 3 a The Company shall remove from the site any individual turbine which ceases to generate electricity for more than 6 months unless such cessation is due to maintenance, repair or replacement or the Secretary of State has given prior written approval to the turbine remaining on the site. b At least 3 months before the scheduled works cease to generate electricity or the termination of the Crown Estate Lease (without a new lease being granted), whichever is the sooner, there shall be submitted to, approved in writing by, and deposited with the Secretary of State a decommissioning plan for the removal of the scheduled works, and the restoration and aftercare of the site having regard to minimising the environmental impact. Such a plan shall include a timetable for the removal, restoration and aftercare of the scheduled works and take into account any applicable legislative requirements, technology and best practice at the time of decommissioning. c Unless otherwise agreed with the Secretary of State the Company shall, following the approval of the decommissioning plan pursuant to the timetable specified in paragraph (b), arrange for the scheduled works to be decommissioned and the site restored in accordance with the plan, and within one month of completion of the work, provide the Secretary of State with written confirmation that it has been completed. d Unless otherwise agreed with the Secretary of State, within 6 months of completion of the decommissioning of the scheduled works pursuant to paragraph (c) the Company shall report on the aftercare of the site pursuant to the timetable specified in paragraph (b), and at 6 monthly intervals thereafter until the completion of the aftercare period. e If the Company ceases to operate the scheduled works without submitting a decommissioning plan pursuant to paragraph (b) the Secretary of State may take such steps as she considers fit to decommission the scheduled works and expenditure incurred in so doing shall be recoverable from the Company. Survey of authorised works 9 1 The Secretary of State may at any time, if she deems it expedient, order a survey and examination of the authorised works and any expenditure incurred by the Secretary of State in such a survey and examination shall be recoverable from the Company. 2 Except in the case of an emergency such surveys shall not be ordered more frequently than once a year, and before ordering such a survey the Secretary of State shall— a consult the Company in order to establish what relevant survey information is already available; and b give the Company an opportunity to carry out the survey itself. Permanent lights and other navigational aids on authorised works 10 1 After the completion of the authorised works, the Company shall around the perimeter of such work exhibit such lights, marks, sound signals and other navigational aids and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct. 2 After the completion of the authorised works, the Company shall exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to aircraft as the Civil Aviation Authority may from time to time direct. 3 Unless the Secretary of State otherwise directs, the Company shall ensure that so much of the turbine as is above the level to which Trinity House direct colouring for navigational safety reasons, and all nacelles and blades, are painted submarine grey (colour code: RAL 7035). Active safety management system 11 1 The turbines shall be operated in accordance with an active safety management system for the purpose of minimising the risk of vessels colliding with the towers or rotating blades of the turbines and facilitating search and rescue activities. 2 The details of the active safety management system shall be approved by the Maritime and Coastguard Agency, such approval (not to be unreasonably withheld), but the system shall include— a provision for each turbine to be marked by day and night with clearly visible identification systems; b provision for communication procedures between mariners in distress, the Maritime and Coastguard Agency and the central control room for the operation of the turbines when a vessel is in distress; c subject to the technology being available and it being available to the Company on commercially acceptable terms, provision for the immediate shutting down of one or more of the turbines at the request of the Maritime and Coastguard Agency in a position which secures the maximum clearance between the lowest point of the blades and the water level; and d provision for testing the emergency procedures at times and in a manner reasonably required by the Maritime and Coastguard Agency. Noise 12 1 Unless otherwise directed by the Secretary of State, the Company— a shall comply with British Standard 5228 (Noise and Vibration Control on Construction and Open Sites) Part 1 and 2: 1997 and Part 4: 1992 in respect of all activities carried out during the construction or decommissioning of the authorised works; and b shall obtain, before the commencement of such activities, the approval by East Lindsey District Council of maximum levels of daytime and night time noise to be generated by such activities, and shall ensure that such levels are not exceeded. 2 Unless otherwise approved in writing by the Secretary of State, the Company shall ensure that the rating level of the noise generated by the operation of the wind turbines does not exceed 35 dB LA90 , up to a wind speed of 10 metres per second, when measured in accordance with the guidance contained in “The Assessment and Rating of Noise from Wind Farms” (ETSU-R-1997), measured in free field conditions at a point 1.2 metres above ground level at any residential property in existence at the date of the making of this Order. Construction exclusion zone 13 1 Subject to paragraph (5) below any person who, without reasonable excuse during the construction of the authorised works navigates a vessel within the construction exclusion zone shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 2 The construction exclusion zone shall not come into effect until— a 7 days after the publication of a notice in the prescribed manner specifying the location and extent of the construction exclusion zone, the date of its commencement and its intended duration; and b the Company has taken such other steps as the Secretary of State may require to notify shipping of the proposed construction exclusion zone. 3 The construction exclusion zone shall terminate on completion of the construction of the authorised works. 4 As soon as reasonably practicable following the termination of the construction exclusion zone the Company shall— a publish notice of the termination in the prescribed manner; and b take such other steps as the Secretary of State may require to notify shipping of the termination of the construction exclusion zone. 5 Paragraph (1) above shall not apply to a person navigating a vessel for the purpose of, or in connection with, the construction, maintenance or operation of the authorised works. 6 In this article— “the construction exclusion zone” means the areas described in Schedule 2 to this Order or such smaller areas as may be notified in accordance with paragraph (2) above; “the prescribed manner” of publication means— providing a notice to mariners; and publication in a newspaper circulating in the area of the relevant coastal authority; “vessel” means a ship, boat, raft or water craft of any description and includes non-displacement craft, seaplanes and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily) and a hovercraft or other amphibious vehicle. PART III MISCELLANEOUS AND GENERAL Power to operate and use authorised works 14 The Company may operate and use the authorised works as a system for generating and transmitting electricity. Disapplication of section 36 of the Electricity Act 1989 15 The provisions of section 36 of the Electricity Act 1989 shall not apply in relation to the authorised works. Certification of plans, etc. 16 The Company shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the sections to the Secretary of State for certification that they are true copies of the deposited plans and sections referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy. Obstructing execution of authorised works 17 A person who without reasonable excuse: a obstructs another person from constructing or maintaining any of the authorised works, or b interferes with equipment or materials used in the construction, operation or maintenance of any of the authorised works, or c in any other way interferes with any of the authorised works or their operation; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. Offences 18 1 If the Company fails to: a comply in any material respect with a direction given under articles 6, 7 or 10, b give notification as required by article 7, or c comply in any material respect with articles 8, 10, 11 or 12 it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale; but it shall be a defence to the Company to show that all due diligence was used to secure compliance with the direction or to give the required notification. Transfer of powers 19 1 The Company may enter into, and carry into effect, agreements for the transfer to another person of all or any of the powers conferred on the Company by this Order. 2 The exercise of any power conferred by this Order by any other person in accordance with an agreement under paragraph (1) above shall be subject to the same obligations and liabilities under this Order as would apply if that power were exercised by the Company. 3 Not later than 21 days before any such agreement comes into effect the Company shall give written notice to the Secretary of State and to Trinity House stating the name and address of the person to whom the powers are being transferred and the date when the transfer is to take effect (which shall not be earlier than the date of receipt of the notice by whichever of the Secretary of State or Trinity House is the last to receive notice). For Protection of Environment Agency 20 1 The following provisions shall, unless otherwise agreed in writing between the Environment Agency (in this article referred to as “the Agency”) and the Company have effect. 2 In this article: “accumulation” means any accumulation of silt or other material; “construction” includes execution and placing, maintenance, extension, enlargement, alteration, replacement, re-laying and removal; and “construct” and “constructed” shall be construed accordingly; “erosion” means any erosion of the bed or shore of the sea or other structure of whatever nature, including the Lincshore sea defences, under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991 ; “outfall” means: any existing land drainage outfall for which the Agency is responsible; or any sewer, pipe or drain provided for groundwater, surface water or storm overflow sewerage; and “specified work” means any permanent or temporary work or operation authorised by or under this Order (which includes for the avoidance of doubt, any dredging and any exploratory geotechnical investigations that may be undertaken). 3 a If, during the construction of a specified work or within 10 years after the completion of such work there is an accumulation or erosion or alteration of the tidal flow or littoral drift wholly or partly caused by such work which causes damage, or the reasonable expectation of damage within 2 years, the Company shall, if so required by the Agency before or within the period of 10 years after such completion, and subject to obtaining any necessary consents, remedy so much of such accumulation, erosion, alteration of tidal flow or littoral drift as is caused by such work, in the manner specified in sub-paragraph (e) below and, if it refuses or fails so to do, the Agency may itself cause work to be done and may recover the reasonable cost thereof from the Company. b Should any such accumulation or erosion or alteration of the tidal flow or littoral drift arise during the said construction or the said period of 10 years and be remedied in accordance with sub-paragraph (a) above, any recurrence of such accumulation or erosion or alteration of the tidal flow or littoral drift shall, subject to sub-paragraph (c) below, from time to time be so remedied by the Company during the said period of 10 years and at any time thereafter. c The Company’s obligation under this paragraph shall cease in the event that following the remedying of any such accumulation or erosion or alteration of the tidal flow or littoral drift a period of 10 years elapses without any further such accumulation or erosion or alteration of the tidal flow or littoral drift unless the specified works are decommissioned and removed before the end of that 10 year period, in which case the Company’s obligation under this paragraph shall cease upon the expiration of 2 years after such removal. d In this paragraph, “damage” means any damage to or any adverse effect whatsoever upon the structure or operation of any outfall, flood or sea defences or other structure under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991. e For the purposes of this paragraph: i in the case of an accumulation, the remedy shall be its removal or such other protective works or measures as may be reasonably required by the Agency; and ii in the case of erosion or alteration of tidal flow or littoral drift, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be reasonably required by the Agency provided always that the Agency will not require a remedy which results in betterment upon the average levels of accumulation, erosion, tidal flow or littoral drift for 2 years prior to the Agency’s requirement. f To the extent that damage would have been caused in any event by factors other than the construction of a specified work the Company shall not be liable to remedy such accumulation or erosion or alteration of tidal flow or littoral drift. 4 For the purposes of paragraph (3)(a) above the date of completion of a specified work shall be the date on which it is brought into use. 5 a Save for the Company’s liability to the Agency in relation to remedying damage caused by accumulation or erosion or alteration of the tidal flow or littoral drift as set out in the provisions of paragraph (3) above (which provisions are, for the avoidance of any doubt, exhaustive as to the Agency’s remedies in that regard) and subject always to sub-paragraph (b) below the Company shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss which may be made or taken against, or recovered from or reasonably incurred by, the Agency to the extent they are caused by the construction of any of the specified work or by reason of their maintenance, repair, alteration, renewal, removal, existence or use or any act or omission of the Company, its contractors, agents, workmen, or servants whilst engaged upon any such work. b The Agency shall: i give to the Company notice of any such claim, demand, proceedings, costs, damages or expenses or loss as soon as is reasonably practicable; ii consult the Company in relation to the conduct of the defence and settlement or compromise thereof; iii in the event that it is agreed that the Company shall assume the control and conduct of the defence and settlement or compromise thereof give such reasonable assistance as may reasonably be required by the Company in the defence, settlement or compromise thereof; and iv not in any event make a settlement or compromise thereof without the agreement of the Company which agreement shall not be unreasonably withheld. 6 Except as otherwise provided by this article nothing in this Order shall prejudice or affect in their application to the Agency the powers, rights, jurisdiction and obligations conferred, arising or imposed under the Land Drainage Act 1991 , the Salmon and Freshwater Fisheries Act 1975 the Water Resources Act 1991 or any other enactment, byelaw or regulation relating to the Agency or any existing approvals or consents granted by the Agency to the Company under any enactment, byelaw or regulation. 7 a Any dispute or difference between the Company and the Agency arising under, out of, or in connection with this article shall be referred to and settled by a single arbitrator appointed by agreement between the parties on reference to him by either party, after notice in writing to the other, or, in default of agreement, by the President or Vice President of the Institution of Civil Engineers. b Without fettering the said right to commence arbitration proceedings the Company and the Agency will attempt to settle any dispute or difference by mediation. Crown rights 21 1 Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the Company to take, use, enter upon or in any manner interfere with, any land, hereditaments or rights of whatsoever description (including any part of the shore or bed of the sea or any other river, channel, creek, bay or estuary)— a belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners without the consent in writing of those Commissioners; or b belonging to a government department, or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department. 2 A consent under paragraph (1) above may be given unconditionally or subject to such conditions and upon such terms as may be considered necessary or appropriate. Jim Campbell, Director, Licensing and Consents Unit Signed by authority of the Secretary of State for Trade and Industry 29th October 2003