The Sheringham Shoal and Dudgeon Extensions Offshore Wind Farm Order 2024

PART 7 Miscellaneous and general

Application of landlord and tenant law

31.—(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 the agreement relates to the terms on which any land that 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 that 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

32.  Development consent granted by this Order is treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as not being operational land) of the 1990 Act.

Felling or lopping of trees and removal of hedgerows

33.—(1) Subject to paragraph (2) and article 35 (trees subject to tree preservation orders) the undertaker may fell or lop, or cut back the roots of, any tree or shrub within or overhanging land within the Order limits or near any part of the authorised project if the undertaker reasonably believes it to be necessary to do so to prevent the tree or shrub from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must not do any unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, must be determined under Part 1 of the 1961 Act.

(4) The undertaker may, for the purposes of the authorised project—

(a) subject to paragraph ‎33 above, remove any hedgerows as are within the Order Limits and specified in Schedule 16, Part 1 (removal of hedgerows) that may be required to be removed for the purposes of carrying out the authorised project; and

(b) remove the important hedgerows as are within the Order Limits and specified in Schedule 16, Part 2 (removal of potentially important hedgerows) and Schedule 16, Part 3 (removal of important hedgerows).

(5) In this article “hedgerow” and “important hedgerow” have the same meaning as in the Hedgerows Regulations 1997(1).

Trees subject to tree preservation orders

34.—(1) Subject to paragraph (2) the undertaker may fell or lop, or cut back the roots of, any tree within or overhanging the Order limits that is subject to a tree preservation order if it reasonably believes it to be necessary to do so to prevent the tree from obstructing or interfering with the construction, maintenance or operation of the authorised project or any apparatus used in connection with the authorised project.

(2) In carrying out any activity authorised by paragraph (1)—

(a) the undertaker must not do any unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity; and

(b) the duty contained in section 206(1)(2) (replacement of trees) of the 1990 Act does not apply.

(3) The authority given by paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(4) Any dispute as to a person’s entitlement to compensation under paragraph ‎(2), or as to the amount of compensation, must be determined under Part 1 of the 1961 Act.

(5) In this article, “tree preservation order” has the same meaning as in section 198 (power to make tree preservation orders) of the 1990 Act.

Saving provisions for Trinity House

35.  Nothing in this Order prejudices or derogates from any of the rights, duties or privileges of Trinity House.

Crown rights

36.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the undertaker or any lessee or licensee to take, use, enter on or in any manner interfere with any land or rights of any description (including any portion of the shore or bed of the sea or any river, channel, creek, bay or estuary)—

(a) belonging to His Majesty in right of the Crown and forming part of The Crown Estate without the consent in writing of the Crown Estate Commissioners;

(b) belonging to His Majesty in right of the Crown and not forming part of The Crown Estate without the consent in writing of the government department having the management of that land; or

(c) belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown land (as defined in section 227 (“Crown land” and “the appropriate Crown authority”) of the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph ‎(1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.

Certification of plans and documents, etc.

37.—(1) The undertaker must, as soon as practicable after this Order is made, submit to the Secretary of State all of the documents listed in Schedule 18 (documents to be certified) 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.

Abatement of works abandoned or decayed

38.—(1) Where the Sheringham Shoal Extension Project offshore works or any part of them are abandoned or allowed to fall into decay the Secretary of State may, following consultation with SEL, by notice in writing require SEL at its own expense either to repair, make safe and restore one or any of those Works, or any relevant part of them, or to remove them and, without prejudice to any notice served under section 105(2) of the 2004 Act, restore the site to a safe and proper condition, to such an extent and within such limits as may be specified in the notice.

(2) Where the Dudgeon Extension Project offshore works or any part of them are abandoned or allowed to fall into decay the Secretary of State may, following consultation with DEL, by notice in writing require DEL at its own expense either to repair, make safe and restore one or any of those Works, or any relevant part of them, or to remove them and, without prejudice to any notice served under section 105(2) of the 2004 Act, restore the site to a safe and proper condition, to such an extent and within such limits as may be specified in the notice.

(3) For the purposes of this article:

“Dudgeon Extension Project offshore works” means—

(a)

in the event of scenario 1, 2 or 3, Work Nos. 1B to 7B and any other authorised development associated with those works; or

(b)

in the event of scenario 4, Work Nos. 1B, 2B, any part of the integrated offshore works operated by or for the benefit of DEL and any other authorised development associated with those works; and

“Sheringham Shoal Extension Project offshore works” means—

(a)

in the event of scenario 1, 2 or 3, Work Nos. 1A to 7A and any authorised development associated with those works; or

(b)

in the event of Scenario 4, Work Nos. 1A, 2A, any part of the integrated offshore works operated by or for the benefit of SEL and any other authorised development associated with those works.

Funding

39.—(1) Except where the provisions of paragraph ‎(8) apply, SEL must not exercise the powers conferred by the provisions referred to in paragraph ‎(3) in relation to any land unless a guarantee or alternative form of security in respect of the liabilities of SEL to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land is in place.

(2) Except where the provisions of paragraph ‎(9) apply, DEL must not exercise the powers conferred by the provisions referred to in paragraph ‎(3) in relation to any land unless a guarantee or alternative form of security in respect of the liabilities of DEL to pay compensation under this Order in respect of the exercise of the relevant power in relation to that land is in place.

(3) The provisions are—

(a) article 18 (compulsory acquisition of land);

(b) article 20 (compulsory acquisition of rights);

(c) article 21 (private rights over land);

(d) article 23 (acquisition of subsoil or airspace only);

(e) article 25 (rights under or over streets);

(f) article 26 (temporary use of land for carrying out the authorised project);

(g) article 27 (temporary use of land for maintaining the authorised project); and

(h) article 28 (statutory undertakers).

(4) The form of guarantee or security referred to in paragraphs ‎(1) and ‎(2), and the amount guaranteed or secured, must be approved by the Secretary of State, but such approval must not be unreasonably withheld.

(5) The undertaker must provide the Secretary of State with such information as the Secretary of State may reasonably require relating to the interests in the land affected by the exercise of the powers referred to in paragraph ‎(3) for the Secretary of State to be able to determine the adequacy of the proposed guarantee or security including—

(a) the interests affected; and

(b) the undertaker’s assessment, and the basis of the assessment, of the level of compensation.

(6) A guarantee or other security given in accordance with this article that guarantees or secures the undertaker’s payment of compensation in relation to the exercise of the powers referred to in paragraph ‎(3) is to be treated as enforceable against the guarantor or provider of security by any person to whom such compensation is properly payable and must be in such a form as to be capable of enforcement by such a person.

(7) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.

(8) Nothing in this article requires a guarantee or alternative form of security to be put in place by SEL where—

(a) SEL provides the Secretary of State with financial information sufficient to demonstrate that it has appropriate funding in place without a guarantee or alternative form of security to meet any liability to pay compensation under this Order in respect of the exercise of the relevant powers in paragraph ‎(1); and

(b) The Secretary of State provides written confirmation that no such guarantee is required, such written confirmation not to be unreasonably withheld.

(9) Nothing in this article requires a guarantee or alternative form of security to be put in place by DEL where—

(a) DEL provides the Secretary of State with financial information sufficient to demonstrate that it has appropriate funding in place without a guarantee or alternative form of security to meet any liability to pay compensation under this Order in respect of the exercise of the relevant powers in paragraph ‎(2); and

(b) The Secretary of State provides written confirmation that no such guarantee is required, such written confirmation not to be unreasonably withheld.

Protective provisions

40.  Schedule 14 (protective provisions) has effect.

Service of notices

41.—(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 (references to service by post) of the Interpretation Act 1978(3) 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 that body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at that 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 an 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 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 the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(c) the notice or document is legible in all material respects; and

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within seven days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of an electronic transmission by a person may be revoked by that person in accordance with paragraph ‎(8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation takes effect on a date specified by the person in the notice but that date must not be less than seven 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.

Arbitration

42.—(1) Subject to article 36 (saving provisions for Trinity House), any difference under any provision of this Order, unless otherwise provided for, must be referred to and settled by arbitration in accordance with the rules in Schedule 15 (arbitration rules) 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.

(2) For the avoidance of doubt, any matter for which the consent of the Secretary of State or the Marine Management Organisation is required under any provision of this Order shall not be subject to arbitration.

Procedure in relation to approvals, etc. under requirements

43.—(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 if the consent, agreement or approval so required were required by a condition imposed on a grant of planning permission—

(a) sections 78 (right to appeal against planning decisions and failure to take such decisions) and 79(4) (determination of appeals) of the 1990 Act;

(b) any orders, rules or regulations that make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission.

(2) For the purposes of paragraph (1), orders, rules and regulations make provision in relation to a consent, agreement or approval of a local planning authority required by a condition imposed on a grant of planning permission in so far as they make provision in relation to—

(a) an application for such a consent, agreement or approval;

(b) the grant or refusal of such an application; or

(c) a failure to give notice of a decision on such an application.

(3) Nothing in paragraph ‎(1)(b) affects the application of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.

Modification of DOW section 36 consent

44.  Upon commencement by the undertaker of any Work Nos. 1B, 2B, 3B or 3C, 4B or 4C, 5B or 5C the provisions of the DOW section 36 consent shall be amended as follows—

(a) In condition 3, for “560MW” substitute “402MW”; and

(b) In Annex B, under the heading “Maximum Number of Turbines” for “77” substitute “67”.

Compensation

45.  Schedule 17 (compensation measures) has effect.

(1)

S.I. 1997/1160.

(2)

Section 206(1) was amended by paragraph 11 of Schedule 8 to the Planning Act 2008 (c. 29).

(3)

1978 c. 30. Section 7 was amended by paragraph 19 of Schedule 10 to the Road Traffic Regulation Act 1984 (c. 27).

(4)

Section 78 was amended by section 43(2) of the Planning and Compulsory Purchase Act 2004 (c. 5), paragraph 3(b) of Schedule 10 to the Planning Act 2008 (c. 29), section 123(3) of, and paragraph 11 of Schedule 12 to, the Localism Act 2011 (c. 20), paragraph 8 of Schedule 1 to the Growth and Infrastructure Act 2013 (c. 27) and paragraph 12 of Schedule 4 to the Infrastructure Act 2015 (c. 7). Section 79 was amended by section 18 of, and paragraph 19 of Schedule 7 to, the Planning and Compensation Act 1991 (c. 34) and by paragraph 4 of Schedule 10 to the Planning Act 2008.