Infrastructure Planning Citation and Commencement 1 This Order may be cited as the Brechfa Forest West Wind Farm Order 2013 and shall come into force on 13th March 2013. Interpretation 2 1 Except for Part 3 of Schedule 1 (requirements), which is subject to the additional definitions provided in that Schedule, in this Order— “the 1961 Act ” means the Land Compensation Act 1961 ; “the 1980 Act ” means the Highways Act 1980 ; “the 1984 Act ” means the Road Traffic Regulation Act 1984 ; “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 ancillary works” means the works described in Part 2 of Schedule 1 (ancillary works) which are not development within the meaning of section 32 of the 2008 Act; “the authorised development” means the development described in Part 1 of Schedule 1 (authorised development) and any other development authorised by this Order, which is development within the meaning of section 32 of the 2008 Act; “the authorised project” means the authorised development and the ancillary works authorised by this Order; “the book of reference” means the book of reference submitted with the application (BFW/AppDoc/BoR) and certified as the book of reference by the Secretary of State 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; “the Environment Agency” means the Environment Agency or any successor to its functions for the area in which the authorised development is located; “the environmental statement” means the document certified as the environmental statement by the Secretary of State for the purposes of the Order and submitted with the application; “the footpath plan” means the plan entitled “New Access and Temporary Diversion of Public Rights of Way Plan” as submitted with the application (BFW/PLAN04/ACCESS) and certified as the footpath plan by the Secretary of State for the purposes of this Order; “highway” has the same meaning as in the 1980 Act; “the land plan” means the land plan submitted with the application (BFW/PLAN01/LANDPLAN) and certified as the land plan by the Secretary of State for the purposes of this Order; “the limits of deviation” means the limits of deviation referred to in article 6; “maintain” includes inspect, repair, adjust, remove, reconstruct and replace, and “maintenance” shall be construed accordingly; “the Order limits” means the order limits shown on the works plan as the limits 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 ; “the Requirements” means the requirements set out in Parts 3 and 4 of Schedule 1 (requirements); “the relevant planning authority” means Carmarthenshire County Council or any successors to its statutory function as local planning authority for the area in which the authorised development is located; “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 part of a street; “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act; “ the undertaker ” means, subject to article 8(3) of this Order, RWE Npower Renewables Limited (company number 2550622); “ watercourse ” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and “the works plan” means the works plan submitted with the application (BFW/PLAN02/WORKSPLAN) and certified as the works plan by the Secretary of State for the purposes of this Order. 2 All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised project shall be taken to be measured along that work. 3 References in this Order to numbered Requirements are to the Requirements with those numbers in Part 3 of Schedule 1 (requirements). 4 References in this Order to numbered Works are to the Works with those numbers in Part 1 of Schedule 1 (authorised development) and shown on the works plan. Development consent etc. granted by the Order 3 1 Subject to the other terms of this Order, including the Requirements, the undertaker is granted— a development consent for the authorised development; and b consent for the ancillary works, to be carried out within the Order limits. 2 Subject to article 6 (power to deviate), the authorised development shall be constructed in the lines or situations shown on the works plan. Procedure in relation to approvals etc under Requirements 4 1 Where an application is made to the relevant planning authority for any consent, agreement or approval required by a Requirement, the following provisions apply in respect of that application as they would apply if the consent, agreement or approval so required was required by a condition imposed on a grant of planning permission— a sections 78 and 79 of the 1990 Act (right of appeal in relation to planning decisions); b any orders, rules or regulations which make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on the grant of planning permission. 2 For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant to this article, the undertaker is deemed to be a holder of a licence under section 6 of the Electricity Act 1989. Maintenance of authorised project 5 Subject to— a the other terms of this Order, including the Requirements; and b any contrary provision in an agreement made under this Order, the undertaker may at any time maintain Work Nos. 1 to 6. Power to deviate 6 1 In constructing or maintaining the authorised development comprising Work Nos. 1 to 9, the undertaker may deviate laterally from the lines or situations shown on the works plans to the extent of the limits of deviation shown on those plans. 2 Without prejudice to paragraph (1), in constructing and maintaining Work No. 2 the undertaker may deviate from the specified points of commencement and termination for each of the cable routes referred to in the Table comprised within the description of Work No. 2 within the limits of deviation shown on the works plans and may construct and maintain those cable routes between the commencement and termination points so varied. Operation of generating station 7 1 The undertaker is authorised to operate the generating station comprised in the authorised development. 2 This article does not relieve the undertaker of any obligation to obtain any permit or licence or any other obligation under any other legislation that may be required to authorise the operation of a generating station. Benefit of Order 8 1 Except as provided for in this article, section 156(1) of the 2008 Act applies to the grant of development consent by this Order. 2 The undertaker may, with the 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. 3 Where a transfer or agreement has been made in accordance with paragraph (2) references in this Order to the undertaker, except in paragraph (4), shall include references to the transferee or the lessee. 4 The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (2) shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker. Nuisance 9 1 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) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the condition set out in paragraph (2) has been satisfied. 2 The condition to be satisfied for the purposes of paragraph (1) is that the defendant shows that the nuisance relates to premises used by the undertaker for the purposes of or in connection with the construction of the authorised project and that the nuisance is attributable to the carrying out of the authorised project in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974 . 3 Section 61(9) of the Control of Pollution Act 1974 (consent for work on construction site to include a statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), shall 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 project. 4 Nothing in this Order or section 158 of the 2008 Act (nuisance: statutory authority) or any rule of law having similar effect confers on the undertaker any defence in respect of any nuisance arising from noise attributable to the operation of the authorised project. Street works 10 1 The undertaker may, for the purposes of the authorised development, enter on so much of the street specified in Schedule 2 (street subject to street works) as is within the Order limits and may— a break up or open the street, or any sewer, drain or tunnel under it; b place apparatus in the street; c maintain apparatus in the street or change its position; and d execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b) and (c). 2 In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act. Temporary stopping up of streets 11 1 The undertaker, during and for the purposes of carrying out the authorised project, may temporarily stop up, alter or divert any street and may for any reasonable time— a divert the traffic from the street; and b subject to paragraph (2), prevent all persons from passing along the street. 2 The undertaker shall provide reasonable access at all times for pedestrians going to or from premises abutting a street affected by the temporary stopping up, alteration or diversion of’ a street under this article if there would otherwise be no such access. 3 Without prejudice to the generality of paragraph (1), the undertaker may temporarily stop up, alter or divert the streets specified in columns (1) and (2) of Schedule 3 (streets to be temporarily stopped up) to the extent specified, by reference to the letters and numbers shown on the footpath plan, in column (3) of that Schedule. 4 The undertaker shall not temporarily stop up, alter or divert any street under paragraph (1) without the consent of the street authority. 5 Any person who suffers loss by the suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act. 6 This article does not relieve the undertaker of any obligation to obtain an order under the 1984 Act. Discharge of water 12 1 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 project 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 shall 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 shall 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 shall 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. 6 The undertaker shall 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 anything prohibited by the Environmental Permitting (England and Wales) Regulations 2010 . 8 If a person who receives an application for consent under paragraph (3) or approval under paragraph (4)(a) fails to respond to the undertaker within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a) that person shall be deemed to have granted consent or given approval, as the case may be. 9 In this article— “public sewer or drain” means a sewer or drain which belongs to the Environment Agency, an internal drainage board, local authority or a sewerage undertaker; and other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act. 10 This article does not relieve the undertaker of any obligation to obtain from the Environment Agency any permit or licence or any other obligation under any other legislation that may be required to authorise anything done under this article. Application of landlord and tenant law 13 1 This article applies to— a any agreement for leasing to any person the whole or any part of the authorised project 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 project, 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 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 14 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 operational land for the purposes of that Act). Felling or lopping of trees etc 15 1 The undertaker may fell or lop any tree or shrub within or encroaching upon 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— a from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project; or b from constituting a danger to passengers or other persons using the authorised project. 2 In carrying out any activity authorised by paragraph (1), the undertaker shall not cause unnecessary damage to any tree or shrub and shall pay compensation to any person for any loss or damage arising from such activity. 3 The undertaker may remove any hedgerows within the Order limits if it reasonably believes it to be necessary to do so for the purposes of the carrying out of the authorised development. 4 The power conferred by paragraph (3) shall remove any obligation upon the undertaker to secure any consent to remove those hedgerows under the Hedgerows Regulations 1997 . 5 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. 6 The exercise of any power under paragraphs (1) and (3) shall be exercised with the consent of the owner of the land concerned. 7 In this article “hedgerow” has the same meaning as in the Hedgerow Regulations 1997. Removal of human remains 16 1 In this article “the specified land” means the land within the limits of deviation. 2 Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it shall remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article. 3 Before any such remains are removed from the specified land the undertaker shall give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by— a publishing a notice once in each of two successive weeks in a newspaper circulating in the area of the authorised project; and b displaying a notice in a conspicuous place on or near to the specified land. 4 As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker shall send a copy of the notice to the relevant planning authority. 5 At any time within 56 days after the first publication of a notice under paragraph (3) any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains. 6 Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be— a removed and re-interred in any burial ground or cemetery in which burials may legally take place; or b removed to, and cremated in, any crematorium, and that person shall, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11). 7 If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question shall be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who shall remove the remains and as to the payment of the costs of the application. 8 The undertaker shall pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article. 9 If— a within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or b such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or c within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or d it is determined that the remains to which any such notice relates cannot be identified, subject to paragraph (10) the undertaker shall remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves shall be re-interred in individual containers which shall be identifiable by a record prepared with reference to the original position of burial of the remains that they contain. 10 If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker shall comply with any reasonable request that person may make in relation to the removal and re-interment of cremation of the remains. 11 On the re-interment or cremation of any remains under this article— a a certificate of re-interment or cremation shall be sent by the undertaker to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and b a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) shall be sent by the undertaker to the relevant planning authority. 12 The removal of the remains of any deceased person under this article shall be carried out in accordance with any directions which may be given by the Secretary of State. 13 Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court. 14 Section 25 of the Burial Act 1857 (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State) shall not apply to a removal carried out in accordance with this article. Service of notices 17 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 (6) 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 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 obligation shall 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 shall 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 shall 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 shall 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 that it would be if served, given or supplied by means of a notice or document in printed form. Certification of plans etc 18 1 The undertaker shall, as soon as practicable after the making of this Order, submit to the Secretary of State copies of the following documents and plans submitted with the application— a the book of reference; b the land plan; c the works plan; d the footpath plan; e the environmental statement; and f any other plans or documents referred to in this Order, 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 19 Any difference under any provision of this Order, unless otherwise provided for, shall 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 giving notice in writing to the other) by the Secretary of State. Signed by authority of the Secretary of State for Energy and Climate Change Giles Scott Head of National Infrastructure Consents Department of Energy and Climate Change 12th March 2013