The Ferrybridge Multifuel 2 Power Station Order 2015

• Citation: S.I. 2015/1832
• Sections: 80

Section 1 Citation and commencement

(1) This Order may be cited as the Ferrybridge Multifuel 2 Power Station Order 2015.

(2) This Order comes into force on 19th November 2015.

Section 2 Interpretation

(1) In this Order—

“ 1961 Act ” means the Land Compensation Act 1961 ;

“ 1971 Act ” means the Banking and Financial Dealings Act 1971 ;

“ 1980 Act ” means the Highways Act 1980 ;

“ 1989 Act ” means the Electricity Act 1989 ;

“ 1991 Act ” means the New Roads and Street Works Act 1991 ;

“2008 Act” means the Planning Act 2008;

“ 2016 Regulations ” means the Environmental Permitting (England and Wales) Regulations 2016;

“authorised development” means the development and associated development described in Schedule 1 (the 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 structure or erection;

“business day” means any day except—

Christmas Day;

Good Friday;

a day that is a bank holiday in England and Wales by virtue of section 1 of the 1971 Act;

any other day that is a Saturday or a Sunday;

“carriageway” has the same meaning as in the 1980 Act;

“environmental statement” means the environmental statement (including the figures and appendices) submitted with the application for this Order and certified as the environmental statement by the Secretary of State for the purposes of this Order under article 23;

“FM1 Power Station” means the Ferrybridge Multifuel 1 power station within the Ferrybridge Power Station site, north-west of Knottingley, West Yorkshire, for which consent under section 36 of the Electricity Act 1989 was granted in October 2011;

“heavy goods vehicle” means a motor vehicle constructed or adapted to carry or to haul goods of more than 3.5 tonnes in weight;

“highway” has the same meaning as in the 1980 Act;

“highway authority” has the same meaning as in the 1980 Act;

“light goods vehicle” means a motor vehicle constructed or adapted to carry or to haul goods of not more than 3.5 tonnes in weight;

“maintain” includes (i) inspect, repair, adjust, alter, improve, refurbish, and (ii) in relation to a part of a work (but not the whole of a work) of the authorised development, remove, clear, demolish, decommission, reconstruct or replace; and “maintenance” and other cognate expressions are to be construed accordingly;

“ MWe ” means megawatts of electrical output;

“Order land” means the land required for the authorised development shown on the Order plan which is within the Order limits;

“Order limits” means the limits, shown by the red line boundary on the Order plan, within which the authorised development may be carried out;

“Order plan” means the document certified as the Order plan by the Secretary of State for the purposes of this Order under article 23;

“owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981 ;

“a part” of the authorised development means any part of Works Nos. 1-4;

“planning authority” means Wakefield Metropolitan District Council, as the planning authority for the area in which the Order land is situated;

“ processed municipal solid waste ” includes, for the purposes of this Order, waste falling within class 20 03 01 of the Annex to Commission Decision 2000/532/EC [2000] OJ L226/3 as amended by Commission Decision 2001/118/EC [2001] OJ L47/1, Commission Decision 2001/119/EC [2001] OJ L47/32, Council Decision 2001/573/EC [2001] OJ L203/18 and Commission Decision 2014/955/EU [2014] OJ L370/44;

“requirements” means the requirements set out in Schedule 2 (the requirements); and a reference to a numbered requirement is a reference to the requirement imposed by the corresponding numbered paragraph of that Schedule;

“statutory undertaker” means any person falling within the meaning of section 127(8) of the 2008 Act;

“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 any footpath, and “street” includes any 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 Multifuel Energy Limited (company number SC286672), having its registered office at Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ, subject to article 8 (transfer of the benefit of this Order);

“unnamed road” means the unnamed road to the east of and adjacent to the A1(M) which leads northwards from Stranglands Lane to the western boundary of Work No. 1A;

“waste derived fuel” means fuel derived from (i) processed municipal solid waste, (ii) commercial and industrial waste or (iii) waste wood;

“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

“works plans” means the documents certified collectively as the works plans by the Secretary of State for the purposes of this Order under article 23.

(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 airspace above its surface.

(3) 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.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are to be taken to be measured along that work.

(5) All references in this Order to grid references and heights above ordnance datum are to be construed subject to the tolerances to which Ordnance Survey measures them.

(6) A reference in this Order to a “Work” identified by a number is a reference to the Work of that number described in Schedule 1 and shown on the works plans.

Section 3 Electronic communications

(1) In this Order—

(a) references to documents, maps, plans, drawings, certificates or other documents, or to copies, include references to them in electronic form;

(b) references to a form of communication being “in writing” include references to an electronic communication that satisfies the conditions in paragraph (3) ; and “written” and other cognate expressions are to be construed accordingly.

(2) If an electronic communication is received outside the recipient’s business hours, it is to be taken to have been received on the next business day.

(3) The conditions are that the communication is—

(a) capable of being accessed by the recipient;

(b) legible in all material respects; and

(c) sufficiently permanent to be used for subsequent reference.

(4) For the purposes of paragraph (3)(b) , a communication is legible in all material respects if the information contained in it is available to the recipient to no lesser extent than it would be if transmitted by means of a document in printed form.

(5) In this article “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000 .

Section 4 Development consent granted by this Order

Subject to the provisions of this Order and to the requirements in Schedule 2, the undertaker is granted development consent for the authorised development.

Section 5 Limits of deviation

(1) In carrying out the authorised development the undertaker may deviate laterally from the lines, situations or building outlines shown on the works plans and sheet 1 of the indicative layout—

(a) in such a way as to reduce the size of the relevant part of the authorised development, to such extent as the undertaker considers necessary or expedient;

(b) in such a way as to increase the size of the relevant part of the authorised development, to the maximum extent of the limits of deviation shown on the relevant document.

(2) Paragraph (1) is subject to the following exceptions—

(a) the centre point of the emissions stack comprised in Work No. 1A must be at grid reference 447250 425345;

(b) the north-west corner of the cooling system comprised in Work No. 1A must be at grid reference 447226 425285;

(c) the width and length of each building comprised in the authorised development and listed in Schedule 3 (maximum building dimensions) must not exceed the maximum width or length for that building specified in that Schedule; and

(d) the width and length of each building comprised in the authorised development and listed in Schedule 4 (minimum building dimensions) must not be less than the minimum width or length for that building specified in that Schedule.

(3) In carrying out the authorised development the undertaker may deviate vertically from the levels shown on sheet 2 of the indicative layout, in such a way as to reduce or increase the size of the relevant part of the authorised development, to such extent as the undertaker considers necessary or expedient.

(4) Paragraph (3) is subject to the following exceptions—

(a) the height of the emissions stack comprised in Work No. 1A must be 136 metres above ordnance datum (Newlyn);

(b) the height of each building comprised in the authorised development and listed in Schedule 3 (maximum building dimensions) must not exceed the maximum height for that building specified in that Schedule;

(c) the height of each building comprised in the authorised development and listed in Schedule 4 (minimum building dimensions) must not be less than the minimum height for that building specified in that Schedule; and

(d) each part of the authorised development, apart from piling works, must be at least 1 metre above the relevant groundwater table level.

(5) In this article—

the “indicative layout” means the document certified as the indicative generating station site layout, elevation and sections plan – concept layout by the Secretary of State for the purposes of this Order under article 23;

“the relevant groundwater table level” means, in relation to each part of the authorised development, the level of the groundwater table in the land on which it is proposed to construct that part, as established pursuant to requirement 6 (pre-development groundwater table level survey).

Section 6 Authorisation of the operation of the authorised development

(1) The undertaker is authorised to operate the generating station comprised in 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.

Section 7 Power to maintain the authorised development

(1) The undertaker may at any time maintain the authorised development, except to the extent that this Order (including the requirements), or an agreement made under this Order, provides otherwise.

(2) Paragraph (1) does not authorise any works—

(a) not assessed in the environmental statement;

(b) outside the Order limits; or

(c) which would result in the authorised development varying from the description in Schedule 1.

Section 8 Transfer of the benefit of this Order

(1) Except where paragraph (4) applies, the undertaker may, with the consent of the Secretary of State,—

(a) transfer to another person (the “transferee”) all or any part 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, all or any part of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the lessee.

(2) Where an agreement has been made in accordance with paragraph (1)(a) or (b), references in this Order to the undertaker, except in paragraph (3), include references to the transferee or the 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) This paragraph applies where—

(a) the transferee or lessee holds a licence under section 6 of the 1989 Act; or

(b) the time limits for all claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—

(i) no such claims have been made;

(ii) any such claims that have been made have all been compromised or withdrawn;

(iii) compensation has been paid in final settlement of any claims made;

(iv) payment of compensation into court in lieu of settlement of all such claims has taken place; or

(v) it has been determined by a tribunal or court of competent jurisdiction in respect of all claims that no compensation is payable.

(5) Where paragraph (4) applies the undertaker must notify the Secretary of State in writing before transferring or granting all or any part of the benefit of the provisions of this Order and such related statutory rights referred to in paragraph (1).

Section 9 Street works

(1) The undertaker may, for the purposes of the authorised development, enter on so much of the streets specified in Schedule 5 (streets 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) tunnel or bore under the street;

(c) place apparatus in the street;

(d) maintain apparatus in the street or change its position;

(e) execute any works required for or incidental to any works referred to in subparagraphs (a), (b), (c), and (d).

(2) The authority given by paragraph (1) is a statutory right for the purposes of section 48(3) (streets, street works and undertakers) and section 51(1) (prohibition of unauthorised street works) of the 1991 Act.

(3) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1) .

(4) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Section 10 Access to works

The undertaker may, for the purposes of the authorised development—

(a) form and lay out means of access, or improve existing means of access, in the location specified in Schedule 6 (access to works); and

(b) with the approval of the planning authority after consultation with the highway authority, form and lay out such other 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.

Section 11 Agreements with street authorities

(1) A street authority and the undertaker may enter into an agreement with respect to the carrying out of any of the works referred to in article 9(1) (street works).

(2) Such an agreement may, without prejudice to the generality of paragraph (1) —

(a) make provision for the street authority to carry out any function under this Order which relates to the street in question;

(b) include an agreement between the undertaker and the street authority specifying a reasonable time for the completion of the works;

(c) contain such terms as to payment and otherwise as the parties consider appropriate.

Section 12 Discharge of water

(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 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) is to 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 may 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 may not be unreasonably withheld.

(4) The undertaker may 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 may not be unreasonably withheld; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker may not, in carrying out or maintaining any 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 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 water discharge activity prohibited by regulation 12 of the 2016 Regulations .

(8) In this article—

“public sewer or drain” means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of section 57 of the Harbours Act 1964 , an internal drainage board, a joint planning board, a local authority, a National Park authority, a sewerage undertaker or an urban development corporation;

“water discharge activity” has the same meaning as in the 2016 Regulations ;

other expressions, excluding “watercourse”, used both in this article and in the Water Resources Act 1991 have the same meanings as in that Act.

Section 13 Authority to survey and investigate the land

(1) The undertaker may, for the purposes of this Order, enter on any land 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 subparagraph (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 subparagraph (a) , carry out ecological or archaeological investigations on such land;

(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 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 when entering the land, produce written evidence of his or her authority to do so;

(b) may take with him or her such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes may be made under this article—

(a) in land located within the highway boundary, without the consent of the highway authority;

(b) in a private street, without the consent of the street authority.

(5) A consent for the purpose of 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) The undertaker must compensate any owner or occupier of land who sustains loss or damage by reason of the exercise of the authority conferred by this article for that loss or damage.

(7) Any compensation payable under paragraph (6) is to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Section 14 Felling or lopping of trees

(1) The undertaker may fell or lop any tree or shrub near any part of the authorised development, or cut back its roots, if it reasonably believes that it is necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development;

(b) from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1) the undertaker may not cause unnecessary damage to a tree or shrub.

(3) The undertaker must compensate any person who sustains loss or damage by reason of the exercise of the authority conferred by this article for that loss or damage.

(4) Any dispute as to a person’s entitlement to compensation under paragraph (3) , or any dispute as to the amount of compensation, is to be determined under Part 1(determination of questions of disputed compensation) of the 1961 Act.

Section 15 Rights under or over streets

(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3) , the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a) a subway or underground building;

(b) a cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (6) , the undertaker must compensate any owner or occupier of land appropriated under paragraph (1) who sustains loss by reason of that appropriation for that loss.

(5) Any compensation payable under paragraph (4) is to be determined, in case of dispute, under Part 1 of the 1961 Act (determination of questions of disputed compensation).

(6) Compensation is not payable under paragraph (4) to a person who is an undertaker to which section 85 of the 1991 Act (sharing cost of necessary measures) applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Section 16 Statutory undertakers

(1) The undertaker may extinguish the rights of, or remove or reposition the apparatus belonging to, statutory undertakers shown on the Order plan and described in the book of reference.

(2) In paragraph (1) , “the Order plan” and “the book of reference” mean the documents respectively certified as such by the Secretary of State for the purposes of this Order under article 23 .

Section 17 Recovery of costs of new connections

(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 16 (statutory undertakers), any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer, but where such a sewer is removed under article 16 (statutory undertakers), any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer, or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article has no effect in relation to apparatus to which Part 3 of the 1991 Act applies.

(4) In this article—

“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003 ;

“public utility undertaker” has the same meaning as in the 1980 Act.

Section 18 Defence to proceedings in respect of statutory nuisance constituted by noise emitted from premises

(1) Paragraph (2) applies 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 section 79(1)(g) 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 of the Control of Pollution Act 1974 (control of noise on construction sites),

(ii) in accordance with a consent given under section 61 of that Act (prior consent for work on construction sites) or section 65 of that Act (noise exceeding registered level), or

(iii) in compliance with requirement 20 (construction hours), requirement 23(3) (British Standards) or the programme approved under requirement 23(1) (programme for the monitoring and control of construction noise);

(b) relates to premises used by the undertaker for the purposes of or in connection with the operation of the authorised development and is attributable to that operation in compliance with the programme approved under requirement 24(1) (programme for the monitoring and control of operational noise); or

(c) is a consequence of the construction, maintenance or operation of the authorised development and cannot reasonably be avoided.

(3) Section 61(9) of the Control of Pollution Act 1974 (consent for work on construction site to include 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) do 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.

Section 19 Procedures for approvals etc. required by the requirements

Schedule 7 (procedures for approvals etc. required by the requirements) has effect in relation to each approval, consent and agreement required by the requirements.

Section 20 Removal of human remains

(1) Before the undertaker carries out any development or works which it has reason to think will or may disturb any human remains in the Order land it must remove those remains, or cause them to be removed, from the Order land in accordance with the following provisions of this article.

(2) Before any such remains are removed the undertaker must give notice of the intended removal, describing the Order 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 development; and

(b) displaying a notice in a conspicuous place on or near to the Order land.

(3) As soon as reasonably practicable after the first publication of a notice under paragraph (2) the undertaker must send a copy of the notice to Wakefield Metropolitan District Council.

(4) At any time within 56 days after the first publication of a notice under paragraph (2) any person who is a personal representative or relative of a deceased person whose remains are interred in the Order land may give notice in writing to the undertaker of his or her intention to undertake the removal of the remains.

(5) Where a person has given notice under paragraph (4) and the remains in question can be identified, that person may cause the remains to be—

(a) removed and re-interred in a burial ground or cemetery in which burials may legally take place, or

(b) removed to, and cremated in, a crematorium,

and that person must, 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 (10) .

(6) If the undertaker is not satisfied that a person giving notice under paragraph (4) is the personal representative or relative of a deceased person whose remains are interred in the Order land, or that the remains in question can be identified, the question is to 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 is to remove the remains and as to the payment of the costs of the application.

(7) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of a deceased person under this article.

(8) If—

(a) within the period of 56 days referred to in paragraph (4) no notice under that paragraph has been given to the undertaker in respect of any remains in the Order land, or

(b) such notice is given and no application is made under paragraph (6) 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 an order is made by the county court under paragraph (6) 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 (9) the undertaker must 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 must be re-interred in individual containers which are identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(9) If the undertaker is satisfied that a person giving notice under paragraph (4) is the personal representative or relative of a deceased person whose remains are interred in the Order land and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(10) On the re-interment or cremation of any remains under this article the undertaker must send—

(a) a certificate of re-interment or cremation to the Registrar General, 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 (8) to Wakefield Metropolitan District Council.

(11) The removal of the remains of a deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(12) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(13) Section 25 of the Burial Act 1857 (bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State) does not apply to a removal carried out in accordance with this article.

Section 21 Application of landlord and tenant law

(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 authorised development;

(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 the 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 an agreement to which this article applies.

(3) No enactment or rule of law regulating the rights and obligations of landlords and tenants applies in relation to the rights and obligations of the parties to any lease granted by or under an agreement to which this article applies so as to—

(a) exclude or in any respect modify any of the rights or 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.

Section 22 Operational land for the purposes of the Town and Country Planning Act 1990

Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) of the Town and Country Planning Act 1990 (cases in which land is to be treated as operational land for the purposes of that Act).

Section 23 Certification of documents

(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State a printed copy of each of the documents submitted with the application for this Order and listed in paragraph (2) , for certification that it is a true copy of the document referred to in this Order.

(2) The documents are—

(a) the biodiversity strategy;

(b) the book of reference;

(c) the combined heat and power assessment;

(d) the design and access statement;

(e) the environmental statement, including the figures and appendices;

(f) the grid connection statement;

(g) the indicative generating station site layout, elevations and sections – concept layout;

(h) the indicative landscaping plan;

(i) the land plan;

(j) the landscaping strategy;

(k) the lighting strategy;

(l) the Order plan;

(m) the statement of engagement of section 79(1) of the Environmental Protection Act 1990;

(n) the statement of reasons;

(o) the works plans.

(3) A document certified in accordance with paragraph (1) is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Section 24 Arbitration

Any difference under any provision of this Order, unless otherwise provided for, is to 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.

Section 1 Commencement of the authorised development

(1) The authorised development must commence within five years of the date on which this Order comes into force.

(2) The authorised development must not commence unless the undertaker has given the planning authority 14 days’ notice of its intention to commence the authorised development.

Section 2 Commercial use

The authorised development must not be brought into commercial use unless the undertaker has given the planning authority 28 days’ notice of its intention to commence commercial use of the authorised development.

Section 3 Fuel type

(1) Only fuel of a type specified in the environmental permit may be combusted in the boilers of the authorised development.

(2) Except for purposes of the start-up or support firing of a boiler, only waste derived fuel may be combusted in the boilers of the authorised development.

Section 4 Detailed design

(1) Work No. 1 must not commence until written details of the following have been submitted to and approved by the planning authority—

(a) the siting, layout, scale and external appearance (including the colours, materials and surface finishes) of all new temporary and permanent buildings;

(b) the internal roads, ramps, turning facilities, parking, loading and unloading facilities, weighbridges, hardstandings and pedestrian and cycle facilities and routes;

(c) drainage, storage tanks and external lighting;

(d) finished ground and floor levels.

(2) Work No. 2 must not commence until written notice of which one of Work No. 2A, Work No. 2B or Work No. 2C has been selected as the connection to the electricity grid network, including details of the design of the option selected, has been submitted to and approved by the planning authority.

(3) Work No. 3 must not commence until written details of the following have been submitted to and approved by the planning authority—

(a) surfacing

(b) drainage;

(c) fencing;

(d) external lighting;

(e) pedestrian and cycle facilities and routes.

(4) Work No. 4 must not commence until written notice of which one of Work No. 4A or Work No. 4B has been selected as the connection to the foul water system, including details of the design of the option selected, has been submitted to and approved by the planning authority.

(5) All details submitted and approved under subparagraph (1), (2), (3) or (4) must be in accordance with the design and scale parameters set out in chapter 3 of the environmental statement.

(6) The authorised development must be carried out in accordance with the approved details.

Section 5 Design of fuel storage bunker

(1) Work No. 1 must not commence until written details of the design of the fuel storage bunker comprised in Work No. 1A have been submitted to and, after consultation with the Environment Agency, approved by the planning authority.

(2) The design of the fuel storage bunker must be informed by the results of the groundwater table level survey approved under requirement 6(1).

(3) The fuel storage bunker must be constructed in accordance with the approved details.

Section 6 Pre-development groundwater table level survey

(1) Work No. 1 must not commence until the undertaker has carried out the groundwater table level survey and the results of that survey have been submitted in writing to and, after consultation with the Environment Agency, approved by the planning authority.

(2) In subparagraph (1), “the groundwater table level survey” means a survey which—

(a) is carried out within the three existing boreholes on the Order land shown in the Geotechnical Site Investigation Report in Appendix 13A to the environmental statement or within such other boreholes on the Order land as the planning authority, after consultation with the Environment Agency, may approve,

(b) is carried out over a period of 12 months, and

(c) establishes the groundwater table level at each of those locations.

Section 7 Provision of landscaping

(1) Within 12 months of the Commissioning of the authorised development a written detailed landscaping scheme for each part shall be submitted to and approved by the planning authority.

(2) Each scheme submitted and approved must include details of all proposed hard and soft landscaping works, including—

(a) the treatment of hard surfaced areas;

(b) earthworks, including the proposed levels and contours of landscaped areas;

(c) the seed mix for areas of grassland;

(d) tree and shrub planting, including the height, size and species and the density of distribution;

(e) the management of existing and new areas of grassland and tree and shrub planting;

(f) an implementation timetable for the phasing and completion of the landscaping works.

(3) Each scheme submitted and approved must be in accordance with the indicative landscaping plan, the biodiversity strategy and the biodiversity enhancement and management plan.

(4) In subparagraph (3), “the biodiversity enhancement and management plan” means the plan approved under requirement 17(1).

Section 8 Implementation and maintenance of landscaping

(1) All landscaping works must be carried out in accordance with the relevant landscaping scheme (including the implementation timetable) approved under requirement 7.

(2) Any tree or shrub planted as part of an approved landscaping scheme that, within a period of five years after planting, is removed, dies or becomes, in the opinion of the planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted.

(3) Any area of grassland planted as part of an approved landscaping scheme that, within a period of five years after planting, dies or becomes, in the opinion of the planning authority, seriously damaged or diseased, must be reseeded in the first available planting season with the same seed mix as that originally planted.

(4) The undertaker must implement and maintain an annual landscaping maintenance plan during the construction, operation and decommissioning of the authorised development.

Section 9 External lighting

(1) Each part of the authorised development must not commence until a written scheme for all temporary and permanent external lighting to be installed during the construction and operation of that part (except the aviation warning lighting required by virtue of requirement 44) has been submitted to and, after consultation with Selby District Council, approved by the planning authority.

(2) Each scheme submitted and approved must—

(a) include measures to minimise and otherwise mitigate any artificial light emissions during construction and operation of the authorised development;

(b) be in accordance with the lighting strategy.

(3) In subparagraph (2)(b), “the lighting strategy” means the document certified as the lighting strategy by the Secretary of State for the purposes of this Order under article 23.

(4) Each scheme must be implemented as approved.

Section 10 Highway accesses

(1) Each part of the authorised development must not commence until written details of the siting, design and layout (including visibility splays and surfacing) of any new or modified permanent or temporary means of access to a highway to be used by vehicular traffic, or any alteration to an existing means of access to a highway used by vehicular traffic, for that part have been submitted to and, after consultation with the relevant highway authorities, approved by the planning authority.

(2) The authorised development must not be brought into commercial use until all highway accesses have been constructed.

(3) The highway accesses must be constructed in accordance with the relevant approved details.

Section 11 Fencing – A1(M)

(1) The authorised development must not commence until written details of the design and construction of any fencing on the boundary of the authorised development with the A1(M) have been submitted to and, after consultation with the Highways Agency, approved by the planning authority.

(2) The authorised development must be carried out in accordance with the approved details.

(3) The authorised development must not be brought into commercial use until the fencing has been completed.

Section 12 Fencing and other means of enclosure

(1) Each part of the authorised development must not commence until written details of all proposed means of enclosure for that part have been submitted to and approved by the planning authority.

(2) Any construction areas or sites associated with the authorised development must remain securely fenced at all times during construction of the authorised development.

(3) Any approved temporary means of enclosure must be removed within 12 months after the authorised development is brought into commercial use.

(4) The authorised development must not be brought into commercial use until any approved permanent means of enclosure has been completed.

(5) Each part of the authorised development must be carried out in accordance with the relevant approved details.

Section 13 Surface and foul water drainage

(1) Each part of the authorised development must not commence until written details of the surface and foul water drainage systems (including means of pollution control, in accordance with the CEMP) for that part have been submitted to and, after consultation with the Environment Agency, approved by the planning authority.

(2) The details submitted and approved must be in accordance with the principles and strategy set out in Appendix 12A to the environmental statement.

(3) The surface and foul water drainage systems must be constructed in accordance with the relevant approved details.

(4) The authorised development must not be commissioned until the surface and foul water drainage systems have been constructed.

Section 14 Flood risk mitigation

(1) Each part of the authorised development must not commence until a written scheme for the mitigation of flood risk during the construction and operation of that part has been submitted to and, after consultation with the Environment Agency, approved by the planning authority.

(2) Each scheme submitted and approved must be in accordance with the principles and strategy set out in Appendix 12A to the environmental statement.

(3) Each approved scheme must be maintained throughout the construction and operation of the relevant part of the authorised development.

Section 15 Contaminated land and groundwater

(1) Each part of the authorised development must not commence until a written scheme applicable to the relevant part of the authorised development, to deal with the contamination of any land (including groundwater), which is likely to cause significant harm to persons, the environment or significant pollution of controlled waters or the environment, has, after consultation with the Environment Agency, been submitted to and approved by the planning authority.

(2) Each scheme submitted and approved under subparagraph (1)—

(a) must be in accordance with the principles set out in chapter 13 of, and the Geotechnical Site Investigation Report in Appendix 13A to, the environmental statement;

(b) may be included in the CEMP.

(3) Each scheme submitted and approved under subparagraph (1) must include an investigation and assessment report, prepared by a specialist consultant approved by the planning authority, to identify the extent of any contamination and the remedial measures to be taken to render the land fit for its intended purpose, together with a management plan which sets out long-term measures with respect to any contaminants remaining on the site.

(4) Subparagraph (5) applies if, during the construction of any part of the authorised development, any contamination of land (including groundwater) which was not identified in the approved scheme for that part is found within the Order limits.

(5) Unless the planning authority agrees otherwise, further construction of the relevant part of the authorised development must not be carried out until a remediation scheme to deal with the contamination has been submitted to and, after consultation with the Environment Agency, approved by the planning authority.

(6) The authorised development, including any remediation, must be carried out in accordance with all approved schemes.

Section 16 Archaeology

(1) Each part of the authorised development must not commence until a written programme of archaeological work for that part has been submitted to and, after consultation with West Yorkshire Archaeology Advisory Service, approved by the planning authority.

(2) Each programme submitted and approved must include—

(a) a written scheme of investigation;

(b) an assessment of significance and research questions;

(c) a programme and methodology for site investigation and recording;

(d) a programme for post-investigation assessment;

(e) arrangements to be made for—

(i) the analysis of site investigation and recording,

(ii) the publication and dissemination of the analysis and of the records of the site investigation, and

(iii) the archive deposition of the analysis and records;

(f) the nomination of a competent person or organisation to carry out works set out in the written scheme of investigation.

(3) Any field work must be carried out in accordance with the written scheme of investigation included in the approved programme.

(4) The authorised development must not be brought into commercial use until—

(a) the site investigation and post-investigation assessment provided for in the approved programme have been completed, and

(b) the arrangements referred to in subparagraph (2)(e) made under the approved programme have been implemented.

Section 17 Biodiversity enhancement and management plan

(1) Within 12 months of the commissioning of the authorised development a written biodiversity enhancement and management plan shall be submitted to and, after consultation with Yorkshire Wildlife Trust, approved by the planning authority.

(2) The plan submitted and approved must—

(a) be in accordance with the relevant survey results and mitigation and enhancement measures included in chapter 14 of the environmental statement, the biodiversity strategy and the indicative landscaping strategy;

(b) include an implementation timetable and details relating to maintenance and management.

(3) The plan must be implemented as approved.

Section 18 Construction environmental management plan

(1) The authorised development must not commence until a written construction environmental management plan has been submitted to and, after consultation with Selby District Council, approved by the planning authority.

(2) The plan submitted and approved must—

(a) be in accordance with the principles set out in chapters 7 to 16 of the environmental statement and the framework construction environmental management plan contained in Appendix 3A to the environmental statement;

(b) include measures for the protection of any protected species found to be present on the Order land during construction;

(c) include the mitigation measures included in chapter 9 of the environmental statement;

(d) incorporate a code of construction practice; and

(e) incorporate a scheme for handling complaints received from local residents, business and organisations relating to emissions of noise, odour or dust from the authorised development during its construction, which must include appropriate corrective action in relation to substantiated complaints relating to emissions of noise.

(3) In subparagraph (2)(b), a “protected species” means a species protected under the Wildlife and Countryside Act 1981 or the Conservation of Habitats and Species Regulations 2017 .

(4) All construction works associated with the authorised development must be carried out in accordance with the approved CEMP.

Section 19 Construction traffic routing and management plan

(1) The authorised development must not commence until a written construction traffic routing and management plan has been submitted to and, after consultation with the relevant highway authorities, approved by the planning authority.

(2) The plan submitted and approved must be in accordance with the principles set out in chapter 7 of the environmental statement and the construction staff travel plan framework contained in Appendix 7B to the environmental statement.

(3) The plan submitted and approved must include—

(a) details of the routes to be used for the delivery of construction materials and any temporary signage to identify routes and promote their safe use, including details of the access points to the construction site to be used by light goods vehicles and heavy goods vehicles;

(b) details of the routing strategy and procedures for the notification and conveyance of abnormal indivisible loads, including agreed routes, the numbers of abnormal loads to be delivered by road and measures to mitigate traffic impact;

(c) the construction programme;

(d) any necessary measures for the temporary protection of carriageway surfaces, the protection of statutory undertakers’ plant and equipment and any temporary removal of street furniture;

(e) measures to promote the use of sustainable transport modes by construction personnel in order to minimise the overall traffic impact and promote sustainable transport modes;

(f) details of parking for construction personnel within the construction site; and

(g) details of a co-ordinator to be appointed to manage and monitor the implementation of the plan, including date of appointment, responsibilities and hours of work.

(4) Notices must be erected and maintained throughout the period of construction at every entrance to and exit from the construction site, indicating to drivers the approved routes for traffic entering and leaving the construction site.

(5) The plan must be implemented as approved.

Section 20 Construction hours

(1) Construction work associated with the authorised development may only take place—

(a) between 0700 and 1900 hours on weekdays (excluding bank holidays);

(b) between 0700 and 1300 hours on Saturdays (excluding bank holidays).

(2) The restrictions in subparagraph (1) do not apply to work as a result of which the level of noise emitted from the construction site does not exceed the noise limits specified in subparagraph (3) as measured by continuous noise monitoring and which—

(a) does not involve the use of impact wrenches, sheet piling, concrete scabbling, external earthworks or concrete jack hammering,

(b) is associated with an emergency, or

(c) is carried out with the prior approval of the planning authority.

(3) The limits are, under reference to British Standard 5228-1:2009+A1:2014—

(a) 55 dB L Aeq, 1h at the receptors identified in chapter 9 of the environmental statement as category C receptors;

(b) 50 dB L Aeq, 1h at the receptors identified in chapter 9 of the environmental statement as category B receptors.

(4) Nothing in subparagraph (1) prevents—

(a) start-up activities from 0630 to 0700 hours on weekdays and Saturdays (excluding bank holidays),

(b) shut-down activities from 1900 to 1930 hours on weekdays (excluding bank holidays), or

(c) shut-down activities from 1300 to 1330 hours on Saturdays (excluding bank holidays).

(5) In subparagraph (4), “start-up activities” and “shut-down activities” mean activities carried out by construction staff in preparation for or when finishing work, as applicable, including—

(a) changing into or out of protective clothing,

(b) receiving safety or other briefings, and

(c) any other such activities that do not generate levels of noise above ambient levels at the receptors identified in chapter 9 of the environmental statement.

(6) During the construction of the authorised development, heavy goods vehicles may only enter or leave the construction site—

(a) between 0730 and 1900 hours on weekdays (excluding bank holidays);

(b) between 0730 and 1300 hours on Saturdays (excluding bank holidays).

(7) The restrictions in subparagraph (6) do not apply to vehicle movements which are carried out with the prior approval of the planning authority.

Section 21 Piling and penetrative foundation design

(1) Each part of the authorised development must not commence until a written piling and penetrative foundation design method statement, informed by a risk assessment, for that part has been submitted to and, after consultation with the Environment Agency and Selby District Council, approved by the planning authority.

(2) Piling or penetrative foundation works must not be carried out unless the relevant approved method statement concludes that the works will not result in an unacceptable risk to the groundwater within the Order limits.

(3) All piling and penetrative foundation works must be carried out in accordance with the relevant approved method statement.

Section 22 Construction – A1(M)

(1) The authorised development must not commence until a written scheme detailing the construction methods to be employed in the vicinity of the A1(M) has been submitted to and, after consultation with the Highways Agency, approved by the planning authority.

(2) The scheme submitted and approved must include details of—

(a) the location and dimensions of any cranes within the vicinity of the boundary fence of the A1(M), including a crane risk assessment;

(b) the location of any other major items of construction plant;

(c) the location and extent of any construction areas or compounds or construction buildings within the vicinity of the boundary fence of the A1(M); and

(d) external lighting, including measures to minimise light spillage to the A1(M).

(3) The scheme must be implemented as approved.

Section 23 Control of noise during construction

(1) The authorised development must not commence until a written programme for the monitoring and control of noise during the construction of the authorised development has been submitted to and, after consultation with Selby District Council, approved by the planning authority.

(2) The programme submitted and approved must specify—

(a) each location from which noise is to be monitored;

(b) the method of noise measurement;

(c) the maximum permitted levels of noise at each monitoring location during the daytime;

(d) provision as to the circumstances in which construction activities must cease as a result of a failure to comply with a maximum permitted level of noise; and

(e) the noise control measures to be employed.

(3) All activities on the Order land associated with the construction of the authorised development must be carried out in accordance with British Standards 5228-1:2009 and 5228-2:2009.

Section 24 Control of operational noise

(1) The authorised development must not be commissioned until a written programme for the monitoring and control of noise during the operation of the authorised development has been submitted to and, after consultation with the Environment Agency and Selby District Council, approved by the planning authority.

(2) The programme submitted and approved must specify—

(a) each location from which noise is to be measured;

(b) the method of noise measurement, which must be in accordance with British Standard 4142:2014;

(c) the maximum permitted levels of noise at each monitoring location; and

(d) provision requiring the undertaker to take noise measurements as soon as possible following a request by the planning authority and to submit the measurements to the planning authority as soon as they are available.

(3) The level of noise at each monitoring location must not exceed the maximum permitted level specified for that location in the programme, except—

(a) in the case of an emergency,

(b) with the prior approval of the planning authority, or

(c) as a result of steam purging or the operation of emergency pressure relief valves or similar equipment of which the undertaker has given notice in accordance with subparagraph (4).

(4) Except in the case of an emergency, the undertaker must give the planning authority 24 hours’ notice of any proposed steam purging or operation of emergency pressure relief valves or similar equipment.

(5) So far as is reasonably practicable, steam purging and the operation of emergency pressure relief valves or similar equipment may only take place—

(a) between 0900 and 1700 hours on weekdays (excluding bank holidays);

(b) between 0900 and 1300 hours on Saturdays (excluding bank holidays).

(6) Where the level of noise at a monitoring location exceeds the maximum permitted level specified for that location in the programme because of an emergency—

(a) the undertaker must, as soon as possible and in any event within two business days of the beginning of the emergency, submit to the planning authority a statement detailing—

(i) the nature of the emergency, and

(ii) why it is necessary for the level of noise to have exceeded the maximum permitted level; and

(b) if the undertaker expects the emergency to last for more than 24 hours, it must inform local residents and businesses affected by the level of noise at that location of—

(i) the reasons for the emergency, and

(ii) how long it expects the emergency to last.

Section 25 Control of odour emissions

(1) The authorised development must not be commissioned until a written scheme for the management and mitigation of odour emissions has been submitted to and, after consultation with Selby District Council, approved by the planning authority.

(2) The scheme submitted and approved must be in accordance with the principles set out in the odour management plan contained in Appendix 8B to the environmental statement.

(3) The authorised development must not be brought into commercial use until the approved scheme has been implemented.

(4) The approved scheme must be maintained throughout the operation of the authorised development.

Section 26 Control of dust emissions

(1) The authorised development must not commence until a written scheme for the management and mitigation of dust emissions has been submitted to and, after consultation with Selby District Council, approved by the planning authority.

(2) The approved scheme must be implemented before and maintained during the construction, operation and decommissioning of the authorised development.