The Hornsea Three Offshore Wind Farm Order 2020

PART 9 E+W FOR THE PROTECTION OF NORFOLK BOREAS

1.  The provisions of this Part apply for the protection of Boreas unless otherwise agreed in writing between the undertaker and Boreas. E+W

Commencement Information

I1 Sch. 9 Pt. 9 para. 1 in force at 22.1.2021, see art. 1

2.  In this Part— E+W

“apparatus” means the cables, structures or other infrastructure owned, occupied or maintained by Boreas or its successor in title within the Norfolk Boreas Order Land;

“Boreas” means an undertaker with the benefit of all or part of the Norfolk Boreas Order for the time being;

“construction” includes execution, placing, altering, replacing, reconstruction, relaying, maintenance, extensions, enlargement and removal; and “construct” and “constructed” must be construed accordingly;

“Crossing Area” means the land within land parcels 16-001, 16-002, 16-003 and 16-004 shown on the land plans and described in the book of reference;

“Norfolk Boreas Order” means a development consent order granted by the Secretary of State following an application by Norfolk Boreas Limited for the [F1 Norfolk Boreas Offshore Wind Farm;]

“Norfolk Boreas Order land” means Order land as defined in the Norfolk Boreas Order;

“plans” includes sections, drawings, specifications, designs, design data, software, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of the Norfolk Boreas Order land;

“proposed Norfolk Boreas Cable Corridor” means the proposed location for any electrical circuit(s) and construction compound(s) permitted by the Norfolk Boreas Order within the Norfolk Boreas Order land; and

“specified works” means so much of any works or operations authorised by this Order (or authorised by any planning permission intended to operate in conjunction with this Order) as is—

(a)

within the Crossing Area;

(b)

in, on, under, over or within 25 metres of the proposed Norfolk Boreas Cable Corridor or any apparatus; or

(c)

may in any way adversely affect any apparatus.

Textual Amendments

F1 Words in Sch. 9 Pt. 9 para. 2 substituted (21.5.2021) by The Hornsea Three Offshore Wind Farm (Correction) Order 2021 (S.I. 2021/599), art. 1(2), Sch.

Commencement Information

I2 Sch. 9 Pt. 9 para. 2 in force at 22.1.2021, see art. 1

3.  The consent of Boreas under this Part is not required where the Norfolk Boreas Order has expired without the authorised development having been commenced pursuant to any requirement of Schedule 1 to the Norfolk Boreas Order. E+W

Commencement Information

I3 Sch. 9 Pt. 9 para. 3 in force at 22.1.2021, see art. 1

4.  Where conditions are included in any consent granted by Boreas pursuant to this Part, the undertaker must comply with the conditions if it chooses to implement or rely on the consent, unless the conditions are waived or varied in writing by Boreas. E+W

Commencement Information

I4 Sch. 9 Pt. 9 para. 4 in force at 22.1.2021, see art. 1

5.  The undertaker must not under the powers of this Order— E+W

(a) acquire, extinguish, suspend, override or interfere with any rights that Boreas has in respect of any apparatus or the proposed Norfolk Boreas Cable Corridor;

(b) acquire the Norfolk Boreas Order land or acquire any new rights or impose restrictive covenants or exercise any powers of temporary use over or in relation to the Norfolk Boreas Order land without the consent of Boreas, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions.

Commencement Information

I5 Sch. 9 Pt. 9 para. 5 in force at 22.1.2021, see art. 1

6.—(1) The undertaker must not under the powers of this Order carry out any specified works without the consent of Boreas, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions and if Boreas does not respond within 30 days then consent is deemed to be given. E+W

(2) Subject to obtaining consent pursuant to sub-paragraph (1) and before beginning to construct any specified works, the undertaker must submit plans of the specified works to Boreas and must submit such further particulars available to it that Boreas may reasonably require.

(3) Any specified works must be constructed without unreasonable delay in accordance with the plans approved in writing by Boreas.

(4) Any approval of Boreas required under this paragraph may be made subject to such reasonable conditions as may be required for the protection or alteration of any apparatus or the proposed Norfolk Boreas Cable Corridor or for securing access to any apparatus or the proposed Norfolk Boreas Cable Corridor [F2 .]

(5) Without limiting sub-paragraph (1), it is not reasonable for Boreas to withhold or delay any consent or approval under this Part in relation to specified works in, on, under, or over the Crossing Area solely on the basis of thermal interaction where the plans of the specified works submitted under sub-paragraph (2) demonstrate that all reasonable steps have been taken to minimise thermal interaction between the specified works and any apparatus or the proposed Norfolk Boreas Cable Corridor.

(6) Where Boreas requires any protective works to be carried out either by themselves or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to Boreas's reasonable satisfaction.

(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any specified works, new plans instead of the plans previously submitted, and the provisions of this paragraph shall apply to and in respect of the new plans.

Textual Amendments

F2 Sch. 9 Pt. 9 para. 6(4) full stop substituted for semi-colon (21.5.2021) by The Hornsea Three Offshore Wind Farm (Correction) Order 2021 (S.I. 2021/599), art. 1(2), Sch.

Commencement Information

I6 Sch. 9 Pt. 9 para. 6 in force at 22.1.2021, see art. 1

7.—(1) The undertaker must give to Boreas not less than 28 days' written notice of its intention to commence the construction of the specified works and, not more than 14 days after completion of their construction, must give Boreas written notice of the completion. E+W

(2) The undertaker is not required to comply with paragraph 6 or sub-paragraph (1) in a case of emergency, but in that case it must give to F3 ... Boreas notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonable practicable subsequently and must comply with paragraph 6 in so far as is reasonably practicable in the circumstances.

Textual Amendments

F3 Word in Sch. 9 Pt. 9 para. 7(2) omitted (21.5.2021) by virtue of The Hornsea Three Offshore Wind Farm (Correction) Order 2021 (S.I. 2021/599), art. 1(2), Sch.

Commencement Information

I7 Sch. 9 Pt. 9 para. 7 in force at 22.1.2021, see art. 1

8.  The undertaker must at all reasonable times during construction of the specified works allow Boreas and its servants and agents access to the specified works and all reasonable facilities for inspection of the specified works. E+W

Commencement Information

I8 Sch. 9 Pt. 9 para. 8 in force at 22.1.2021, see art. 1

9.—(1) After the purpose of any temporary works has been accomplished, the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from Boreas requiring the undertaker to do so, remove the temporary works in, on, under, over, or within the Crossing Area. E+W

(2) If the undertaker fails to remove the temporary works within a reasonable period of receipt of a notice pursuant to sub-paragraph (1), Boreas may remove the temporary works and may recover the reasonable costs of doing so from the undertaker.

Commencement Information

I9 Sch. 9 Pt. 9 para. 9 in force at 22.1.2021, see art. 1

10.  If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Boreas to maintain or use the apparatus no less effectively than was possible before the obstruction. E+W

Commencement Information

I10 Sch. 9 Pt. 9 para. 10 in force at 22.1.2021, see art. 1

11.  The undertaker must not exercise the powers conferred by this Order to prevent or interfere with the access by Boreas to the proposed Norfolk Boreas Cable Corridor. E+W

Commencement Information

I11 Sch. 9 Pt. 9 para. 11 in force at 22.1.2021, see art. 1

12.  To ensure its compliance with this Part, the undertaker must before carrying out any works or operations pursuant to this Order within the Crossing Area request up-to-date written confirmation from Boreas of the location of any apparatus or the proposed Norfolk Boreas Cable Corridor. E+W

Commencement Information

I12 Sch. 9 Pt. 9 para. 12 in force at 22.1.2021, see art. 1

13.  The undertaker and Boreas must each act in good faith and use reasonable endeavours to co-operate with, and provide assistance to, each other as may be required to give effect to the provisions of this Part. E+W

Commencement Information

I13 Sch. 9 Pt. 9 para. 13 in force at 22.1.2021, see art. 1

14.  The undertaker must pay to Boreas the reasonable expenses incurred by Boreas in connection with the approval of plans, inspection of any specified works or the alteration or protection of any apparatus or the proposed Norfolk Boreas Cable Corridor. E+W

Commencement Information

I14 Sch. 9 Pt. 9 para. 14 in force at 22.1.2021, see art. 1

15.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any specified works, any damage is caused to any apparatus or there is any interruption in any service provided, or in the supply of any goods, by Boreas, or Boreas becomes liable to pay any amount to any third party, the undertaker must— E+W

(a) bear and pay the cost reasonably incurred by Boreas in making good such damage or restoring the service or supply; and

(b) compensate Boreas for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Boreas, by reason or in consequence of any such damage or interruption or Boreas becoming liable to any third party as aforesaid.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of Boreas, its officers, servants, contractors or agents.

(3) Boreas must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

(4) Boreas must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 15 applies. If requested to do so by the undertaker, Boreas shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 15 for claims reasonably incurred by Boreas.

(5) The fact that any work or thing has been executed or done with the consent of Boreas and in accordance with any conditions or restrictions prescribed by Boreas or in accordance with any plans approved by Boreas or to its satisfaction or in accordance with any directions or award of any arbitrator does not relieve the undertaker from any liability under this Part.

Commencement Information

I15 Sch. 9 Pt. 9 para. 15 in force at 22.1.2021, see art. 1

16.  Any dispute arising between the undertaker and Boreas under this Part must be determined by arbitration under article 37 (arbitration). E+W

Commencement Information

I16 Sch. 9 Pt. 9 para. 16 in force at 22.1.2021, see art. 1