Infrastructure Planning PART 1 PRELIMINARY Citation and commencement 1 This Order may be cited as the Tees Combined Cycle Power Plant Order 2019 and comes into force on 26th April 2019. Interpretation 2 1 In this Order— “the 1990 Act” means the Town and Country Planning Act 1990 ; “the 2008 Act” means the Planning Act 2008 ; “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; “building” includes any structure or erection or any part of a building, structure or erection; “CCR assessments” means the carbon capture readiness statement together with the further assessments submitted in support of the application, listed in the examination library under references APP-039, REP2-091, REP7-011, REP7-07 and REP7-015 and certified as the CCR assessments by the Secretary of State for the purposes of this Order; “CHP assessment” means the combined heat and power assessment submitted in support of the application, listed in the examination library under reference APP-038 and certified as the CHP assessment by the Secretary of State for the purposes of this Order; “environmental statement” means the environmental statement together with the documents containing supplementary and further environmental information submitted in support of the application, listed in the examination library index under references APP-042 to APP-046, AS-012, AS-010, APP-050 to APP-052, AS-025, APP-054 to APP-058, REP2-006, APP-060 to APP-075, REP1-001, APP-077, REP2-052, APP-079, AS-021 and REP7-008 and certified as the environmental statement by the Secretary of State for the purposes of this Order; “examination library index” means the index of documents referred to in the Examining Authority’s report and recommendation to the Secretary of State and certified as the examination library index by the Secretary of State for the purposes of this Order; “existing access plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-015 and certified as the existing access plan by the Secretary of State for the purposes of this Order; “highway authority” has the same meaning as in the Highways Act 1980 ; “indicative demineralised water connection plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-021 and certified as the indicative demineralised water connection plan by the Secretary of State for the purposes of this Order; “indicative drainage plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-026 and certified as the indicative drainage plan by the Secretary of State for the purposes of this Order; “indicative electrical connection plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-020 and certified as the indicative electrical connection plan by the Secretary of State for the purposes of this Order; “indicative gas connection plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-024 and certified as the indicative gas connection plan by the Secretary of State for the purposes of this Order; “indicative generating station plans” means the plans submitted in support of the application, listed in the examination library index under references APP-016, AS-015, APP-018 and AS-019 and certified as the indicative generating station plans by the Secretary of State for the purposes of this Order; “indicative landscaping plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-029 and certified as the indicative landscaping plan by the Secretary of State for the purposes of this Order; “indicative potable water connection and raw water connection plans” means the plans submitted in support of the application, listed in the examination library index under references APP-022 and APP-023 and certified as the indicative potable water connection plan and indicative raw water connection plans by the Secretary of State for the purposes of this Order; “ISO Conditions” means ambient temperature of 15° Celsius, relative humidity of 60% and ambient pressure of 1 bar; “land” includes land covered by water and any interest or right in, to or over land; “land ownership and interests schedule” means the schedule submitted in support of the application, listed in the examination library index under reference APP-007 and certified by the Secretary of State as the land ownership and interests schedule for the purposes of this Order; “land plan” means the plan submitted in support of the application, listed in the examination library index under reference APP-012 and certified as the land plan by the Secretary of State for the purposes of this Order; “limits of deviation” means the limits shown on the works plans and referred to in article 6 (limits of deviation); “maintain” includes, to such an extent that it will not give rise to any materially new or materially different environmental effects to those already assessed in the environmental statement, inspect, maintain, repair, adjust, alter, remove, refurbish, reconstruct and or improve any part but not the whole of the authorised development and “maintenance” is to be construed accordingly; “Ministry of Defence” means the Defence Geographic Centre at G7 MacLeod Building, Elmwood Avenue, Feltham, Middlesex TW13 7AH United Kingdom; “the Order land” means the land which is required for the construction and operation of the authorised development shown on the land plan and described in the land ownership and interests schedule; “the Order limits” means the limits shown in red on the works plans within which the authorised development may be carried out; “preliminary works” means works consisting of site clearance, environmental surveys, investigations for the purpose of assessing ground conditions, erection of any temporary means of enclosure, the temporary display of site notices or installation of a site compound; “relevant planning authority” means the local planning authority for the area in which the authorised development is situated; “requirements” means those matters set out in Part 2 (Requirements) of Schedule 1; “southern boundary sound wall” means the boundary wall situated along the southern boundary of the Order land the location of which is shown on the works plans; “undertaker” means Sembcorp Utilities (UK) Limited (company registration number 04636301) or any person who has the benefit of this Order in accordance with article 7; “western boundary sound wall” means the boundary wall to be situated along part of the western boundary of the Order land the location of which is shown on the works plans; and “works plans” means the plans submitted in support of the application, listed in the examination library index under references APP-014, AS-001, REP2-007, REP2-026, REP2-048, REP2-075 and REP2-076 and 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 air-space above its surface. 3 All distances, directions and lengths referred to in this Order are approximate. 4 References in this Order to numbered works are references to the works comprising the authorised development as numbered and described in Part 1 of Schedule 1 (authorised development) and shown on the works plans. 5 The expression “includes” is to be construed without limitation unless the contrary intention appears. 6 All areas described in square metres in the land ownership and interests schedule are approximate. 7 References to any statutory body include that body’s successor bodies. 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 In constructing the authorised development the undertaker may construct each numbered work anywhere within the corresponding numbered area shown on the works plans up to the limits of deviation. Power to maintain 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. PART 3 OPERATIONS Operation of authorised development 5 1 The undertaker is hereby authorised to operate and use 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 under any other legislation that may be required from time to time to authorise the operation of a 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 plans to the extent of the limits of deviation shown on those plans; and b deviate vertically to any extent downwards as may be found necessary to construct foundations, or any underground structures. 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 (including any of the numbered works) and such related statutory rights as may be so agreed in writing between the undertaker and the lessee. 2 Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, except in paragraphs (3), (5) and (6), 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 the exercise of the powers in paragraph (1) except where the transferee or lessee is a person who holds a licence under section 6 of the Electricity Act 1989 or section 7 of the Gas Act 1986 . 5 Where consent of the Secretary of State is not required pursuant to paragraph (4), the undertaker must notify the Secretary of State in writing before transferring or granting a benefit referred to in paragraph (1). 6 The notification referred to in paragraph (5) must— a be signed by the undertaker and the transferee or lessee; b include the name and contact details of the person to whom the benefit of the powers will be transferred or granted; c contain details of the powers to be transferred or granted; d include details of the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted; e where only part of the benefit of the Order is being transferred or granted, include a plan showing the works or areas to which the transfer or grant relates; and f specify the date on which the transfer will take effect (such date to be no earlier than one week from the date of the receipt of the notification). Application of legislative provisions 8 It does not constitute a breach of the terms of this Order if, following the coming into force of this Order, any development, or any part of a development, for which development consent is not required under section 31 of the 2008 Act is carried out or used within the Order limits under planning permission granted under the 1990 Act. Defence to proceedings in respect of statutory nuisance 9 1 Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act no order may be made, and no fine may be imposed, under section 82(2) 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) of the Control of Pollution Act 1974 ; 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 19 (control of noise during operation); or ii is a consequence of the use of the authorised development and that it cannot reasonably be avoided. 2 Section 61(9) of the Control of Pollution Act 1974 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 MISCELLANEOUS AND GENERAL Application of landlord and tenant law 10 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 prejudices the operation of any agreement to which this article applies. 3 Accordingly, no such enactment or rule of law applies 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 the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease. Operational land for purposes of the 1990 Act 11 Development consent granted by this Order is to 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. 12 1 The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of— a the CHP assessment; b the CCR assessments; c the environmental statement; d the examination library index; e the existing access plan; f the indicative demineralised water connection plan; g the indicative drainage plan; h the indicative electrical connection plan; i the indicative gas connection plan; j the indicative generating station plans; k the indicative potable water connection and raw water connection plans; l the indicative landscaping plan; m the land ownership and interests schedule; n the land plan; and o the works plans for certification that they are true copies of the documents referred to in this Order. 2 A plan or document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy. Arbitration 13 Any difference under any provision of this Order, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the Secretary of State. Procedure in relation to certain approvals etc. 14 1 Where an application is made to, or a request is made of the relevant planning authority or any other relevant person for any agreement or approval required or contemplated by any of the provisions of the Order, such agreement or approval must, if given, be given in writing and must not be unreasonably withheld or delayed. 2 Schedule 2 (procedure for discharge of requirements) has effect in relation to all agreements or approvals granted, refused or withheld in relation to requirements. 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 5th April 2019