PART 1PRELIMINARY

Citation and commencement

1. This Order may be cited as The London Gateway Port Harbour Empowerment Order 2008 and comes into force on 16th May 2008.

Interpretation

2.-�(1) In this Order-�

-�the 1845 Act-� means the Railways Clauses Consolidation Act 1845(4);

-�the 1847 Act-� means the Harbours, Docks and Piers Clauses Act 1847(5);

-�the 1961 Act-� means the Land Compensation Act 1961(6);

-�the 1965 Act-� means the Compulsory Purchase Act 1965(7);

-�the 1968 Act-� means the Port of London Act 1968(8);

-�the 1980 Act-� means the Highways Act 1980(9);

-�the 1990 Act-� means the Town and Country Planning Act 1990(10);

-�the 1991 Act-� means the New Roads and Street Works Act 1991(11);

-�the 1995 Order-� means the Town and Country Planning (General Permitted Development) Order 1995(12);

-�AOD-� means above Ordnance Datum (Newlyn);

-�the area of jurisdiction-� means the area shown washed green on Sheet No. 209 of the deposited plans;

-�the authorised works-� means the works and operations authorised by Part 3;

-�bridleway-�, -�footpath-�, -�highway-� and -�highway authority-� have the same meaning as in the 1980 Act;

-�chart datum-� in relation to any location, at any time, means the datum level ascertained at that time by reference to the relevant charts;

-�the Company-� means London Gateway Port Limited, a company limited by shares and incorporated under the Companies Act 1985(13), whose registered number is 4341592;

-�conditions of restricted visibility-� means any occasion when visibility is less than 0.5 nautical miles;

-�construction-� includes execution and placing and, in its application to works which include or comprise any operation, means the carrying out of that operation but does not include hydrodynamic dredging or maintenance dredging, and -�construct-� shall be construed accordingly;

-�container vessel-� means a vessel which is used for carrying cargo and fitted with fixed or portable cell guides for the carriage of containers;

-�the deposited plans-� and -�the deposited sections-� mean, respectively, the plans and sections certified by the Secretary of State as the plans and sections for the purposes of this Order pursuant to article 69 (certification of plans, etc.);

-�the Dockmaster-� means the dockmaster appointed by the Harbour Authority under this Order;

-�dredging-� includes hydrodynamic dredging and -�dredge-� shall be construed accordingly;

-�environmental document-� means-�

-�the footpath plans-� means Sheets Nos. 268 to 272 of the deposited plans;

-�functions-� includes powers and duties;

-�the Habitats Directive-� means Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (as amended);

-�the Habitats Regulations-� means the Conservation (Natural Habitats, &c) Regulations 1994(14) (as amended), which implement the Habitats Directive;

-�the Harbour Authority-� means the Company in its capacity as a harbour authority established by article 8 (jurisdiction of the Harbour Authority);

-�the Harbour Master-� means a person appointed by the PLA to be a harbour master and includes his deputies and assistants;

-�highway-� and -�highway authority-� have the same meaning as in the 1980 Act;

-�hovercraft-� means a vehicle which is designed to be supported when in motion wholly or partly by air expelled from the vehicle to form a cushion of which the boundaries include the ground, water or other surface beneath the vehicle;

-�hydrodynamic dredging-� means any operation that has the effect of materially increasing the depth of water at a given location by disturbing material in the bed of the river or of the sea so that such material is displaced from the bed of the river or of the sea at that location without being removed from the river or the sea, but does not include operations which keep sediment in flux;

-�the limits of construction activity-� means the limits of construction activity shown marked -�LOC-� on the deposited plans;

-�the limits of construction activity for dredging-� means the limits of construction activity for the operations authorised by article 13 (power to dredge) and shown marked -�LOC(D)-� on the deposited plans;

-�the limits of deviation-� means the limits of deviation shown marked -�LOD-� on the deposited plans;

-�the limits of deviation for dredging-� means the limits of deviation for the operations authorised by article 13 (power to dredge) and shown marked -�LOD(D)-� on the deposited plans;

-�the local highway authority-� means Thurrock Borough Council acting as a highway authority under the 1980 Act, or any successor body;

-�London Gateway Port-� means the harbour authorised by this Order within the area of jurisdiction;

-�the main channel-� means the deep water channel authorised in Dredging Work No.2 in paragraph 2 of Schedule 3;

-�maintain-� includes inspect, repair, adjust, alter, remove, reconstruct, replace, re-lay, renew and update and -�maintenance-� shall be construed accordingly;

-�maintenance dredging-� means any dredging operation carried out under article 13 (power to dredge) in order to maintain the areas referred to in Schedule 3 to their respective depths, widths, positions or diameters as set out in that Schedule;

-�mean high water level-� means the level which is half way between mean high water springs and mean high water neaps;

-�the mitigation land-� means the land numbered 182 to 184, 191 to 194, 196 to 201 and 203 on Sheets Nos. 273 to 291 of the deposited plans and described in Schedule 12;

-�Network Rail-� means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition -�associated company-� means any company which is (within the meaning of section 736 of the Companies Act 1985) the holding company of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

-�personal watercraft-� means any watercraft (not being a structure which by reason of its concave shape provides buoyancy for the carriage of persons or goods) propelled by a jet engine or other mechanical means of propulsion and steered either-�

-�the PLA-� means the Port of London Authority operating under the 1968 Act;

-�the PLA limits-� means the area defined by the limits set out in paragraph 2 of Schedule 1 to the 1968 Act;

-�the planning restrictions plan-� means Sheet No. 210 of the deposited plans;

-�plans-� include sections, elevations, drawings, specifications, programmes and method statements and includes hydraulic information;

-�the port premises-� means such works, berthing pockets, land and premises as are situated within the area of jurisdiction at any time belonging to, vested in or occupied by the Harbour Authority and used, intended to be used or set aside for the purposes of, or in connection with, the commercial management and operation of the authorised works or of the undertaking;

-�railway property-� means any railway belonging to Network Rail and any works, apparatus and equipment belonging to Network Rail connected therewith and includes any land held or used by Network Rail for the purposes of such railway or works, apparatus or equipment;

-�Rainbow Lane-� means the street of that name in Stanford-le-Hope, Thurrock;

-�reference point-� means an Ordnance Survey National Grid reference point;

-�the related development-� means the proposed London Gateway Commercial and Logistics Centre given outline planning permission by the Secretary of State on 30 May 2007 following an application made in 2002 and given registration reference TH/02/00084/OUT;

-�the relevant charts-� means, at any time, the Admiralty Chart for the Thames Estuary numbered 1183 and the Admiralty Chart for the River Thames Canvey Island to Tilbury numbered 1186, as published by the United Kingdom Hydrographic Office from time to time, or any amendment, replacement or recognised substitute of those charts as published by the United Kingdom Hydrographic Office or any successor body;

-�the river-� means the River Thames;

-�Ro-Ro use-� means the provision of services and facilities within the port premises for roll-on roll-off ships to load and unload their cargo;

-�ship dues-� means charges in respect of any vessel for entering, using or leaving London Gateway Port, including charges in respect of marking or lighting London Gateway Port;

-�the street authority-�, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

-�tidal work-� means so much of any permanent or temporary authorised work as is, or may be on, in, under or over the surface of land below mean high water level forming part of the river, but excluding-�

and a work ceases to be a tidal work when the land on which it is situated ceases to be below mean high water level;

-�the tribunal-� means the Lands Tribunal;

-�the Trinity House-� means the Corporation of Trinity House of Deptford Strond;

-�the undertaking-� means the harbour undertaking of the Harbour Authority established within the area of jurisdiction by this Order;

-�vessel-� means every description of vessel, however propelled or moved, and includes a non-displacement craft, a personal watercraft, a seaplane on the surface of the water, a hydrofoil vessel, a hovercraft or any other amphibious vehicle and any other thing constructed or adapted for movement through, in, on or over water and is at the time in, on or over water; and

-�Wharf Road-� means the street of that name in Stanford-le-Hope, Thurrock.

(2) Any reference in this Order to a work identified by the number of such work shall be construed as a reference to the work of that number authorised by this Order or any part of such work.

(3) Any reference to a point identified by a letter or coordinates reference shall be construed as a reference to a point identified by that letter or coordinates reference on the deposited plans.

(4) This Order shall be read as if the words -�or thereabouts-� were inserted after each situation, direction, distance, point, length, area or dimension or other measurement stated in it.

(5) Where in this Order a period is stated to be from a specified day, the first day of the period is the day after the day so specified.

(6) Any vessel shall be a ship for the purposes of the application of the 1964 Act to the undertaking.

Incorporation of the Harbours, Docks and Piers Clauses Act 1847

3.-�(1) The 1847 Act (except sections 6 to 23, 25, 31, the proviso to section 32, sections 42, 45, 48 to 50, 60 to 63, 66 to 68, 73, 77 and 79 to 83) is hereby incorporated in this Order subject to the modifications stated in paragraphs (2) and (3) and in articles 37 (recovery and enforcement of charges) and 40 (disputes concerning rates).

(2) Section 69 shall have effect as if for the words from -�shall forfeit-� to the end of the section there were substituted the words -�shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale-�.

(3) In construing the 1847 Act as so incorporated-�

(a)the expression -�the special Act-� means this Order;

(b)the expressions -�the Promoters of the undertaking-� and -�the undertakers-� mean the Harbour Authority;

(c)the expression -�the harbour, dock or pier-� means the authorised works within the area of jurisdiction;

(d)the expressions -�limits-� and -�prescribed limits-� mean the area of jurisdiction;

(e)the expression -�near the pier-� does not extend beyond the area of jurisdiction;

(f)the expression -�the harbour master-� means, in relation to the authorised works, the Dockmaster;

(g)the definition of -�vessel-� in article 2(1) shall be substituted for the definition in section 3 of the 1847 Act;

(h)section 53 of the 1847 Act shall not be construed as requiring the Dockmaster to serve written notice upon the master of a vessel and directions given under that section may be communicated to the vessel master orally or otherwise; and

(i)any requirement to comply with a notice or direction given by the Dockmaster shall be construed as including a requirement that, in complying with such notice or direction, a person who is subject to the notice or direction shall also comply with any relevant notice or direction given by the PLA or the Harbour Master in the exercise by either or both of them of any function conferred by or under any enactment (including this Order).

Byelaws

4.-�(1) The Harbour Authority may make such byelaws as it thinks fit for the efficient management and regulation of London Gateway Port, including byelaws for all or any of the following purposes-�

(a)the management, control and regulation of the area of jurisdiction and of goods, wares, merchandise and vehicles within it;

(b)the control and regulation of vessels within the area of jurisdiction or such lesser area as the Harbour Authority thinks fit;

(c)the conduct of persons within the area of jurisdiction;

(d)safety precautions to be observed by persons within the area of jurisdiction, whether or not on board vessels; and

(e)the protection and conservation of flora and fauna and other natural features, including byelaws-�

(i)prohibiting the placing of vessels on land dedicated or designated under article 47 (conservation);

(ii)prohibiting fishing or bait digging on such land; or

(iii)regulating the control of animals on such land or on land of the Harbour Authority.

(2) Section 85 of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) shall have effect as if for the words from -�in the prescribed manner-� to the end of the section there were substituted the words -�by the Secretary of State-�.

(3) The Harbour Authority shall not make any byelaw so as to conflict with any byelaw made by the PLA, or with any general direction to vessels given by the PLA or the Harbour Master acting under any enactment. In the case of conflict between-�

(a)a byelaw made by the Harbour Authority; and

(b)a byelaw made, or direction given, by the PLA or the Harbour Master,

the byelaw or direction of the PLA or of the Harbour Master shall prevail.

(4) In the case of any conflict between byelaws made by the Harbour Authority and byelaws made by Network Rail in respect of railway property, the byelaws of Network Rail shall, in respect of that railway property, prevail.

Application of the Local Government Act 1972

5. The provisions of sections 236(3) to (8) and (11) and 238 of the Local Government Act 1972(16) shall apply to any byelaws made by the Harbour Authority, subject to the following modifications-�

(a)references to a local authority shall have effect as if they were references to the Harbour Authority;

(b)references to proper officer shall have effect as if they were a reference to a Director or the Company Secretary of the Harbour Authority;

(c)the following subsection shall be substituted for section 236(3A)-�

-�(3A) No byelaws shall be made in accordance with subsection (3) unless the Harbour Authority has, not less than three months before making those byelaws, consulted the PLA and the Environment Agency.-�;

(d)subsection 236(7) shall have effect as if-�

(i)at the beginning of that subsection, there were inserted the words -�subject to subsection (7A)-�; and

(ii)after the words -�The confirming authority may confirm-� there were inserted the words -�with or without modifications-�; and

(e)the following subsection is treated as having been inserted after section 236(7)-�

-�(7A) Where the Secretary of State proposes to make a modification to a byelaw which appears to him to be substantial, he shall inform the Harbour Authority and require it to notify the PLA and take any other steps which he considers to be necessary for informing persons likely to be concerned with the modification and he shall not confirm the byelaw until such period has elapsed as he thinks reasonable for consideration of, and comment upon, the proposed modification.-�.

Application of the New Roads and Street Works Act 1991

6.-�(1) Any of the authorised works executed under this Order in relation to a highway which consists of or includes a carriageway shall be treated for the purposes of Part 3 of the 1991 Act (street works in England and Wales) as major transport works if-�

(a)they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) of that Act (which defines what highway authority works are major highway works); or

(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by sections 64 (dual carriageways and roundabouts) or 184 (vehicle crossings) of the 1980 Act.

(2) The following provisions of the 1991 Act shall not apply in relation to any works executed under the powers of this Order-�

• section 56 (directions as to timing);

• section 56A (power to give directions as to placing of apparatus);

• section 58 (restrictions following substantial road works);

• section 58A (restriction on works following substantial street works);

• section 73A (power to require undertaker to re-surface street);

• section 73B (power to specify timing, etc., of re-surfacing);

• section 73C (materials, workmanship and standard of re-surfacing);

• section 78A (contributions to costs of re-surfacing by undertaker); and

• Schedule 3A (restriction on works following substantial street works).

(3) The provisions of the 1991 Act mentioned in paragraph (4) which, together with other provisions of that Act, apply in relation to the execution of street works, and any regulations made or code of practice issued or approved under those provisions shall apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street of a temporary nature by the Harbour Authority under the powers conferred by this Order whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

(4) The provisions of the 1991 Act referred to in paragraph (3) are-�

• section 54 (advance notice of certain works), subject to paragraph (5);

• section 55 (notice of starting date of works), subject to paragraph (5);

• section 57 (notice of emergency works);

• section 59 (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 68 (facilities to be afforded to street authority);

• section 69 (works likely to affect other apparatus in the street);

• section 75 (inspection fees);

• section 76 (liability for cost of temporary traffic regulations); and

• section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purposes of the provisions mentioned above.

(5) Sections 54 and 55 of the 1991 Act as applied by paragraph (3) shall have effect as if references in section 57 of the 1991 Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

(6) References in Part 3 of the 1991 Act to the undertaker shall be construed as references to the Harbour Authority.

Incorporation of the Railways Clauses Consolidation Act 1845

7.-�(1) The following provisions of the 1845 Act shall be incorporated in this Order-�

• section 24 (obstructing construction of railway);

• section 46 (crossings of roads-level crossings), subject to paragraph (3);

• section 47 (provision in cases where roads are crossed on a level);

• section 58 (company to repair roads used by them), subject to paragraph (4);

• section 61 (company to make sufficient approaches and fences to highways crossing on the level);

• section 68 (accommodation works by company);

• section 71 (additional accommodation works by owners), subject to paragraph (5);

• sections 72 and 73 (supplementary provisions relating to accommodation works), subject to paragraph (6);

• section 75 (omission to fasten gates);

• section 77 (presumption that minerals excepted from acquisition of land);

• sections 78 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923(17);

• section 105 (carriage of dangerous goods on railway); and

• section 145 (recovery of penalties).

(2) In those provisions, as incorporated in this Order-�

-�the company-� means the Harbour Authority;

-�the goods-� includes anything conveyed on the railways authorised to be constructed by this Order;

-�prescribed-�, in relation to any such provision, means prescribed by this Order for the purposes of that provision;

-�the railway-� means any railway authorised to be constructed by this Order and, except where the context otherwise requires, any other authorised works; and

-�the Special Act-� means this Order.

(3) In section 46 of the 1845 Act, as incorporated in this Order, for the proviso there shall be substituted the words -�provided always that, subject to such conditions as the highway authority may reasonably impose, the railway may be carried across a highway on the level-�.

(4) In section 58 of the 1845 Act, as incorporated in this Order, for the words from -�the determination of two justices-� to the end there shall be substituted the word -�arbitrations-�.

(5) In section 71 of the 1845 Act, as incorporated in this Order, the words -�or directed by such justices to be made by the company-� shall be omitted, and for the words -�authorised by two justices-� there shall be substituted the words -�determined by arbitration-�.

(6) Any difference arising under section 72 of the 1845 Act, as incorporated in this Order, shall be referred to arbitration under article 66 (arbitration).

PART 2JURISDICTION AND ESTABLISHMENT OF THE HARBOUR AUTHORITY

Jurisdiction of the Harbour Authority

8.-�(1) Without prejudice to the functions of the PLA exercisable within its limits, the Company shall be the harbour authority for London Gateway Port.

(2) Without prejudice to any provision of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847), the area within which the Harbour Authority and the Dockmaster may exercise their functions under this Order shall be the area of jurisdiction.

(3) The jurisdiction of the Harbour Authority over vessels within the area of jurisdiction shall not extend to-�

(a)any vessel unless it is at anchor or otherwise moored or is causing an obstruction within the area of jurisdiction; or

(b)signalling or any other activity connected with the movement of the vessel.

(4) Where any person referred to in paragraph (5)(a) considers that there is an actual or anticipated conflict between-�

(a)the exercise of any function of any person mentioned in paragraph (5)(a); and

(b)the exercise of any function of any person mentioned in paragraph (5)(b),

then that person may give notice to the relevant person in paragraph (5)(b).

(5) The persons referred to in paragraph (4) are-�

(a)the PLA and the Harbour Master; and

(b)the Harbour Authority and the Dockmaster.

(6) The notice referred to in paragraph (4) shall set out any requirements concerning the exercise of the relevant function by the relevant person mentioned in paragraph (5)(b).

(7) The requirements referred to in paragraph (6) may-�

(a)make general provision in relation to the exercise of functions over time; or

(b)make specific provision about the exercise of a particular function or functions on a particular occasion.

(8) If-�

(a)a notice sets out requirements falling within paragraph (7)(a) it must be made in writing; and

(b)a notice sets out requirements falling within paragraph (7)(b) it may be made in writing or in any other manner considered appropriate by the person giving the notice.

(9) On receipt of a notice given under paragraph (4), the recipient of the notice shall cease to exercise the function specified by the notice or shall only exercise it in the manner permitted by the notice or shall otherwise take the action specified in the notice in relation to the exercise of that function.

(10) Save where expressly provided elsewhere in this Order, no person mentioned in paragraph (5)(b) is obliged to seek any permission or otherwise notify any person mentioned in paragraph (5)(a) prior to exercising any function.

(11) Subject to the requirements of any notice given under paragraph (4), the functions of the Harbour Authority and the Dockmaster shall be exercised in accordance with Schedule 8.

Agreements entered into by the Company, etc.

9. Any agreement or undertaking entered into by the Company before the coming into force of this Order in connection with the proposed exercise of its functions as Harbour Authority shall be binding upon the Harbour Authority notwithstanding that it was entered into by the Company before it was established as a Harbour Authority by article 8 (jurisdiction of the Harbour Authority).

PART 3WORKS PROVISIONS

Power to construct, etc., works

10.-�(1) The Harbour Authority may, in the lines or situations, and within the limits of deviation and according to the levels shown on the deposited plans and the deposited sections, construct, operate and maintain the works set out in Schedule 1, or any of them.

(2) For the purposes of, or in connection with, the works authorised by paragraph (1) the Harbour Authority may do any of the following within the limits of deviation for those works-�

(a)provide, construct and maintain approaches, roads, pavements, bridges (including bridges over watercourses), road and rail crossings, railway tracks, sidings, ramps, buildings, depots, walls, foundations, fences, gates, tanks, pumps, conduits, pipes, drains, wires, mains, cables, substations, signals, conveyors, cranes, lifts, hoists, lighting masts, radio masts, CCTV cameras and masts, security barriers, weighbridges, stairs, ladders, conveyors, stages, platforms, catwalks, equipment, pontoons and gangways, quays, berths, container handling equipment (including overhead bridge cranes), rail mounted gantries, rubber-tyred gantries, dredged material and aggregate handling washing and grading equipment, roll-on roll-off ship facilities, bulk liquids facilities, general cargo handling and haulage equipment and stagings, together with all such port, harbour, dock, wharf or terminal facilities (including security installations, tanks and pumps and other apparatus (including all utilities plant, conduit, pipes, wires, cables, substations, pumping stations, foul drainage and sewerage treatment plants, and telecommunications apparatus as is required)), plant, machinery, moorings, hydrodynamic dredging equipment, booms and barriers, outfalls, street lighting and signage as may be necessary or convenient;

(b)within the area between the lines marked green on Sheets Nos. 216 and 217 of the deposited plans, construct and maintain permanent works within Works Nos. 11 and 12 for the accommodation or convenience of vessels;

(c)construct, maintain and use apparatus, including mains, sewers, drains, pipes and cables;

(d)alter the course of, or otherwise interfere with, rivers, streams or watercourses;

(e)landscape and construct other works to mitigate any adverse effects of the construction, maintenance and operation of the other authorised works; and

(f)carry out and maintain works for the benefit or protection of persons or premises affected by any of the other authorised works.

(3) For the purposes of, or in connection with the construction, maintenance or use of the authorised works, the Harbour Authority may within the limits of construction activity carry out such construction activity, including the temporary placing of materials, plant or equipment or temporary jetties or the construction of temporary accesses, as may be necessary or expedient.

(4) For the purpose of conveying dredged material from the main channel, and from the manoeuvring, berthing and anchorage sites to the site of Works Nos. 11 to 17 (shown on Sheets Nos. 216 and 217 of the deposited plans) the Harbour Authority may during the construction of Works Nos. 11 to 17 provide and use temporary pipes over, on or under the surface of the river.

(5) The powers of this article are subject to the restrictions set out in Schedule 2.

Power to construct, etc., pontoons and jetties

11. The Harbour Authority may within the area of jurisdiction construct and maintain-�

(a)one or more floating pontoons for Ro-Ro use restrained or anchored by piles, extending into the river for a distance not exceeding 60 metres southward of the general line of the quay wall and connected to the shore by a link span;

(b)up to two jetties comprised within Works Nos. 12 and 24 within the area between the lines marked orange on Sheet No. 217 of the deposited plans and extending into the river no further southward than the general line of the quay wall; and

(c)a floating pontoon and access gangway located at the western end of the harbour within the area between the lines marked orange on Sheet No. 216 of the deposited plans and adjacent to the proposed quay wall in Works Nos. 11 and 12 (shown on Sheets Nos. 216 and 217 of the deposited plans).

Further mitigation and compensation works

12.-�(1) The Harbour Authority may carry out and maintain on the land hatched black on Sheet No. 208 (Limits of Amelioration Works) of the deposited plans amelioration works and such landscaping, water management and other works to mitigate the effects of the authorised works including altering the level of the land by no more than 50 metres upwards and 6 metres downwards for conservation and or ecological purposes, embankments and tree planting.

(2) Paragraph (1) is subject to article 16 (tidal works not to be constructed without approval of the Secretary of State) and Schedule 8 but nothing in those provisions shall prevent the undertaking and completion by the Harbour Authority of works necessary to compensate for the effects of the authorised works in accordance with the requirements of the Secretary of State acting as competent authority under the Habitats Directive and the Habitats Regulations.

Power to dredge

13.-�(1) The Harbour Authority may dredge, deepen, scour, cleanse, alter and improve the river bed and foreshore to the extent described in Schedule 3, or as may be required for the purpose of maintaining the works described in Schedule 3.

(2) The power to dredge described in Schedule 3 includes the power to carry out such additional dredging as may be required to provide side slopes or otherwise secure the dredged areas against siltation, scouring or collapse.

(3) Subject to paragraph 22 of Schedule 8, all materials dredged up or removed by the Harbour Authority in exercise of the powers of this article (other than wreck within the meaning of Part IX of the Merchant Shipping Act 1995(18)) shall be the property of the Harbour Authority and may be used, sold, deposited or otherwise disposed of as the Harbour Authority thinks fit.

(4) No such materials may be deposited on the bed of the river except-�

(a)within the area of jurisdiction, for the purposes of constructing the authorised works; or

(b)in such places and in accordance with such conditions and restrictions as may be prescribed by the Secretary of State pursuant to Part 2 of the Food and Environment Protection Act 1985(19).

Power to deviate

14.-�(1) In constructing and maintaining the works authorised by article 10(1) and in exercising the powers conferred by article 13 (power to dredge), the Harbour Authority may, to the extent of the limits of deviation or, for works authorised by article 13 (power to dredge), to the extent of the limits of deviation for dredging, deviate laterally from the lines or situations of those works shown on the deposited plans.

(2) In constructing and maintaining the works authorised by article 10(1), the Harbour Authority may deviate vertically from the levels of those works shown on the deposited sections to any extent downwards and up to 5 metres upwards.

(3) In exercising the powers conferred by article 13 (power to dredge), the Harbour Authority may deviate vertically to any extent not exceeding one metre downwards.

(4) In constructing so much of the combined footpath and bridleway shown on Sheets Nos. 268 and 269 of the deposited plans as lies between points X and W, the Harbour Authority may deviate laterally from the line shown on the footpath plans by 5 metres in any direction.

(5) In constructing so much of the footpath shown on Sheet No. 272 of the deposited plans as lies parallel to, but 5 metres north of, the definitive alignment of public footpath (part) No.81 in Thurrock, the Harbour Authority may deviate laterally from the line shown on the footpath plans by 2 metres in any direction.

(6) In constructing so much of the bridleway shown on Sheet No. 270 of the deposited plans running from a point 188 metres west of the crossing of footpath 190 (part) of the Thameshaven Branch line in a generally south-westerly, south, south-westerly direction for 1,000 metres to a point 180 metres south of the end of Wharf Road, the Harbour Authority may deviate laterally from the line shown on the deposited plans by 2 metres in any direction.

Fine for obstructing works

15.-�(1) Any person who without reasonable excuse-�

(a)obstructs any person acting under the authority of the Harbour Authority in constructing, maintaining or using the authorised works; or

(b)interferes with, moves or removes any equipment used in the construction, maintenance or use of the authorised works,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Nothing in paragraph (1) applies to the Harbour Master or to any person acting under the authority of the Harbour Master or the PLA.

Tidal works not to be constructed without approval of the Secretary of State

16.-�(1) A tidal work shall not be constructed except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before the work is begun.

(2) If a tidal work is constructed in contravention of paragraph (1), the Secretary of State may-�

(a)give notice to the Harbour Authority to remove the tidal work or any part of it and to restore the site of that tidal work to its former condition; or

(b)where necessary remove the tidal work or part of it and restore the site of that tidal work to its former condition.

(3) Notice given under paragraph (2)(a) shall be in writing and shall be served on the Harbour Authority.

(4) If, within 30 days of service of the notice, the Harbour Authority has failed to comply with the notice, the Secretary of State may-�

(a)execute the works specified in the notice; or

(b)if it appears to the Secretary of State urgently necessary to do so, she may remove the tidal work or part of it and restore the site to its former condition.

(5) Any expenditure incurred by the Secretary of State pursuant to paragraphs (2) to (4) shall be recoverable from the Harbour Authority.

(6) In considering any application for the Secretary of State-�s approval under paragraph (1), the Secretary of State shall consult with the PLA and the Environment Agency, both of whom shall provide their opinion on the plans and sections proposed for approval by the Secretary of State within 14 days of being requested to do so by the Secretary of State, and the Secretary of State shall take any such opinion that is received into account.

Provision against danger to navigation

17.-�(1) In case of injury to or destruction or decay of a tidal work within the area of jurisdiction the Harbour Authority shall as soon as reasonably practicable-�

(a)notify the PLA; and

(b)lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as the PLA may from time to time direct.

(2) If, without reasonable excuse, the Harbour Authority fails to notify the PLA or to act in accordance with any direction given under this article, the Harbour Authority shall be liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

Lights on tidal works, etc.

18.-�(1) In the locations specified in paragraph (2), the Harbour Authority shall-�

(a)at the times specified in paragraph (3), exhibit such lights, if any, and take such other steps for the prevention of danger to navigation as the PLA may from time to time direct; and

(b)provide or afford reasonable facilities (including an electricity supply) for the PLA to provide from time to time (at the Harbour Authority-�s cost), such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the PLA may deem necessary.

(2) The locations referred to in paragraph (1) are-�

(a)once a tidal work (other than one authorised under article 13 (power to dredge)) is completed, at or near the outer extremity of that tidal work; and

(b)whilst any tidal work is being constructed, at or near appropriate points in relation to that tidal work.

(3) The times referred to in paragraph (1)(a) are-�

(a)every night from sunset to sunrise; and

(b)at all times when there are conditions of restricted visibility in the vicinity of the tidal work.

(4) The Harbour Authority shall not in the exercise of the powers granted by this Order interfere with the marks, lights and other aids to navigation in the river without the agreement of the PLA and shall ensure access remains available to such aids during and following construction of any tidal work.

(5) Without prejudice to section 133 of the 1968 Act, the Harbour Authority shall comply with the directions of the Harbour Master from time to time with regard to the lights on any tidal work or within the port premises, or the screening of such lights, to ensure that the lights are not a hazard to navigation on the river.

(6) The Harbour Authority shall be liable-�

(a)on summary conviction to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment to a fine,

for a failure to comply with a direction given under this article.

Stopping up, diversion, provision and upgrading of footpaths and bridleways

19.-�(1) The Harbour Authority may construct new bridleways and new footpaths along the lines shown on the footpath plans.

(2) The Harbour Authority may stop up the parts of the footpaths and bridleway specified in column 1 of Schedule 4 to the extent specified in column 2 of Schedule 4.

(3) No part of any footpath or bridleway specified in column 1 of Schedule 4 may be wholly or partly stopped up under this article unless the new footpath, bridleway or combined footpath and bridleway specified in column 3 of Schedule 4 has been completed to the reasonable satisfaction of the Harbour Authority and opened for public use.

(4) Where a part of a footpath or a part of a bridleway has been stopped up under this article, all rights of way over or along that part of the footpath or bridleway shall be extinguished and the Harbour Authority may appropriate and use the site and soil thereof.

(5) On first opening for public use the substituted rights of way specified in column 3 of Schedule 4 shall become highways maintainable at the public expense.

Power to alter layout of streets, etc.

20.-�(1) The Harbour Authority may alter the layout of, and carry out other ancillary works in, Rainbow Lane anywhere along its length.

(2) Without prejudice to the powers conferred by paragraph (1) but subject to paragraph (3), the Harbour Authority may for the purpose of constructing or maintaining the authorised works, alter the layout of any street within the limits of deviation and, in particular, may-�

(a)increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street;

(b)alter the level of any such kerb, footpath, footway, cycle track or verge; or

(c)make and maintain crossovers, sidings or passing places.

(3) The powers in paragraph (2) shall not be exercised without the consent of the street authority, but such consent shall not be unreasonably withheld or delayed.

Power to execute street works

21.-�(1) The Harbour Authority may, for the purposes of the authorised works, enter upon so much of any street within the limits of deviation and may-�

(a)break up or open the street, or any sewer, drain or tunnel under it, or tunnel or bore under the street;

(b)place apparatus in the street;

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

(d)execute any works required for or incidental to any works referred to in sub-paragraphs (a) to (c).

(2) In this article -�apparatus-� has the same meaning as in Part 3 of the 1991 Act.

Temporary stopping up of streets

22.-�(1) The Harbour Authority may, during and for the purposes of the execution of the authorised works, temporarily stop up, alter or divert any street and may for any reasonable time-�

(a)divert the traffic from the street; and

(b)subject to paragraph (2), prevent all persons from passing along the street.

(2) The Harbour Authority shall provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.

(3) Without prejudice to the generality of paragraph (1), the Harbour Authority may exercise the powers of this article in relation to Rainbow Lane and Wharf Road.

(4) The Harbour Authority shall not exercise the powers of this article-�

(a)in relation to a street specified in paragraph (3), without first consulting the street authority; and

(b)in relation to any other street, without the consent of the street authority, which may attach reasonable conditions to any consent but such consent shall not be unreasonably withheld or delayed.

(5) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Agreements with street authorities

23.-�(1) A street authority and the Harbour Authority may enter into agreements with respect to-�

(a)the construction of any new street (including any structure carrying the street over or under an authorised work) under the powers conferred by this Order;

(b)the strengthening or improvement of any street under the powers conferred by this Order;

(c)the maintenance of the structure of any bridge carrying a work over a street;

(d)any stopping up, alteration or diversion of a street under the powers conferred by this Order; and

(e)the execution in the street of any of the works referred to in article 21 (power to execute 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; and

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

Construction of bridges

24. Any bridge to be constructed under this Order for carrying an authorised work over a highway shall be constructed in accordance with plans and specifications approved by the highway authority for that highway, but such approval shall not be unreasonably withheld or delayed.

Level crossings

25.-�(1) The Harbour Authority may construct the authorised works so as to carry them on the level across the public rights of way (both existing and in the future) described in Schedule 4 and across Rainbow Lane and Wharf Road.

(2) The Harbour Authority may provide, maintain and operate at or near any new level crossing such barriers, gates or other protective equipment as the Secretary of State may in writing approve.

(3) The Harbour Authority may in the exercise of the powers of this article alter the level of any highway within the limits of deviation.

(4) The appropriate highway authority may enter into agreements with the Harbour Authority in respect of the construction and maintenance of any new level crossings; and such an agreement may contain such terms as to payment or otherwise as the parties consider appropriate.

(5) Any traffic sign placed pursuant to this article on or near a highway or other road to which the public has access shall be treated for the purposes of section 64(4) of the Road Traffic Regulation Act 1984(20) as having been placed as provided by that Act.

(6) In this article -�protective equipment-� includes lights, traffic signs (within the meaning of section 64(1) of the Road Traffic Regulation Act 1984), manual, mechanical, automatic, electrical or telephone equipment, or other devices.

Application of permitted development rights

26. Schedule 5 shall have effect.

Defence to proceedings in respect of statutory nuisance

27.-�(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(21) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act, if the defendant shows-�

(a)that the nuisance relates to premises used by the Harbour Authority for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works and that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60, or a consent given under section 61 or 65, of the Control of Pollution Act 1974(22); or

(b)that the nuisance is a consequence of the construction, maintenance or use of the work and that it cannot reasonably be avoided.

(2) The following provisions of the Control of Pollution Act 1974-�

(a)section 61(9) (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 (summary proceedings by person aggrieved by statutory nuisance)); and

(b)section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),

shall not apply where the consent relates to the use of premises by the Harbour Authority for the purposes of, or in connection with, the exercise of the powers conferred by this Order with respect to the authorised works.

(3) The provisions of this article are without prejudice to the application to the authorised works, where relevant, of section 122 of the Railways Act 1993(23) (statutory authority as a defence to actions in nuisance, etc.) or any rule of common law having similar effect.

PART 4ACQUISITION OF LAND

Power to acquire land

28.-�(1) Subject to paragraph (3) the Harbour Authority may acquire compulsorily so much of the land shown washed pink on Sheets Nos. 273 to 291 of the deposited plans and described in Schedule 12 as may be required for the purposes of the authorised works.

(2) The Harbour Authority may use any land so acquired for the purposes of the authorised works or for the purposes of the undertaking or for any other purpose connected with or ancillary to the undertaking, whether such use is by the Harbour Authority alone or jointly with any other person who has an interest in the land.

(3) The Harbour Authority shall not acquire an interest in the land referred to in paragraph (1) greater than that necessary to enable the Harbour Authority to use the land for the purposes mentioned in this article.

(4) In this article-�

(a)-�land-� includes any interest in land; and

(b)-�required-� means required by the Secretary of State or any other public authority in connection with, or as a condition of, the authorisation of the authorised work.

Application of Part 1 of the Compulsory Purchase Act 1965

29.-�(1) Part 1 of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order-�

(a)as it applies to a compulsory purchase to which the Acquisition of Land Act 1981(24) applies, and

(b)as if this Order were a compulsory purchase order under that Act.

(2) Part 1 of the 1965 Act, as so applied, shall have effect as if-�

(a)section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provision as to the giving of bonds) were omitted; and

(b)in section 11(1) (which confers power to enter on and to take possession of land subject to a notice to treat on giving not less than 14 days-� notice), for the reference to 14 days-� notice there were substituted a reference to notice of 3 months.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

30.-�(1) The Compulsory Purchase (Vesting Declarations) Act 1981(25) shall apply as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as applied by paragraph (1) shall have effect with the following modifications.

(3) In section 3 (preliminary notices), for subsection (1) there shall be substituted-�

-�(1) Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order the acquiring authority shall include the particulars specified in subsection (3) in a notice which is-�

(a)given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b)published in a local newspaper circulating in the area in which the land is situated. -�.

(4) In that section, in subsection (2), for -�(1)(b)-� there shall be substituted -�(1)-� and after -�given-� there shall be inserted -�and published-�.

(5) In that section, for subsections (5) and (6) there shall be substituted-�

-�(5) For the purposes of this section, a person has a relevant interest in land if-�

(a)he is for the time being entitled to dispose of the fee simple of the land, whether in possession or reversion; or

(b)he holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month.-�.

(6) In section 5 (earliest date for execution of declaration)-�

(a)in subsection (1), after -�publication-� there shall be inserted -�in a local newspaper circulating in the area in which the land is situated-�; and

(b)subsection (2) shall be omitted.

(7) In section 7 (constructive notice to treat) in subsection (1)(a), the words -�(as modified by section 4 of the Acquisition of Land Act 1981)-� shall be omitted.

(8) References to the 1965 Act shall be construed as references to that Act as applied to the acquisition of land under article 29 (application of Part 1 of the Compulsory Purchase Act 1965).

Disregard of certain interests and improvements

31.-�(1) In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the tribunal shall not take into account-�

(a)any interest in land, or

(b)any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) -�relevant land-� means the land acquired from the person concerned or any other land with which he is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Extinction of private rights of way

32.-�(1) All private rights of way over, and any other third party rights in land subject to compulsory acquisition under this Order, shall be extinguished from the sooner of-�

(a)the acquisition of the land by the Harbour Authority, whether compulsorily or by agreement, or

(b)the entry on the land by the Harbour Authority under section 11(1) of the 1965 Act.

(2) Any person who suffers loss by the extinguishment of any private right of way or other legal interest in the land under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(3) This article does not apply in relation to any right of way to which section 271 or 272 of the 1990 Act (extinguishment of rights of statutory undertakers etc.) applies.

Time limit for exercise of powers of acquisition

33.-�(1) Subject to paragraph (2), after the end of the period of 10 years beginning with the day on which this Order comes into force-�

(a)no notice to treat shall be served under Part 1 of the 1965 Act, as applied to the acquisition of land under article 29 (application of Part 1 of the Compulsory Purchase Act 1965); and

(b)no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 30 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) In relation to the mitigation land, after the end of the period of 3 years beginning with the day on which this Order comes into force-�

(a)no notice to treat shall be served under Part 1 of the 1965 Act, as applied to the acquisition of land under article 29 (application of Part 1 of the Compulsory Purchase Act 1965); and

(b)no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 30 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

PART 5FUNCTIONS OF THE HARBOUR AUTHORITY

Duty of the Harbour Authority

34. It shall be the duty of the Harbour Authority on completion of the whole or any part of the authorised works to provide and maintain those works as a harbour and to provide such harbour services and facilities within the area of jurisdiction as it considers necessary or desirable.

Power to make charges

35.-�(1) In addition to its power to demand dues under section 26 of the 1964 Act, as restricted by paragraphs (2) and (3), the Harbour Authority may demand, take and recover such charges and on such terms and conditions as it may from time to time determine, for services and facilities provided by it at London Gateway Port for the users of London Gateway Port.

(2) The power of the Harbour Authority to demand ship, passenger and goods dues under section 26(2) of the 1964 Act is restricted to the levying of ship dues on container vessels, and to the extent of and in accordance with paragraph (3).

(3) The ship dues referred to in paragraph (2) are ship dues levied on container vessels calling at London Gateway Port in respect of the Harbour Authority-�s costs, including costs of capital, incurred in-�

(a)dredging, deepening, scouring, cleansing, altering and improving the river bed and foreshore as authorised by article 13 (power to dredge), together with incidental costs so incurred;

(b)the disposal of the arisings from the activities mentioned in sub-paragraph (a) by way of reclamation or otherwise for the purposes of the construction of London Gateway Port;

(c)mitigation, compensation and monitoring required as the result of the activities mentioned in sub-paragraphs (a) and (b); and

(d)maintenance dredging and maintenance resulting from the activities mentioned in sub-paragraphs (a) and (c), including the costs of the disposal of the arisings from those activities.

(4) Nothing in this article shall affect any power of the Harbour Authority to demand, take or recover charges (not being ship, passenger or goods dues) that it may have under or by virtue of any enactment or rule of law.

Power to enter vessels

36.-�(1) A duly authorised officer of the Harbour Authority may on producing, if so required, his authority, board a vessel within the area of jurisdiction to-�

(a)ascertain the charges payable on or in respect of the vessel or goods carried in the vessel; and

(b)obtain any other information required for the assessment and collection of charges.

(2) Nothing in this article applies to any vessel that is under the control of any officer of the PLA.

Recovery and enforcement of charges

37.-�(1) Section 44 (recovery of tonnage rates by distraint and sale of ship and tackle) of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) is subject to the modification set out in paragraphs (2) and (3).

(2) Where the Harbour Authority has exercised any power of sale under section 44 (recovery of tonnage rates by distraint and sale of ship and tackle) of the 1847 Act, before rendering any overplus to the master of the vessel, the Harbour Authority shall apply such overplus in payment of any unpaid charge due to the PLA.

(3) In the exercise of the powers of section 44 (recovery of tonnage rates by distraint and sale of ship and tackle) of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847)-�

(a)the Harbour Authority shall notify the PLA that it has exercised those powers in relation to any vessel;

(b)the PLA shall not exercise its powers under section 39 (recovery and enforcement of charges) of the 1968 Act in respect of a vessel so notified; and

(c)subject to sub-paragraph (b), nothing in this article affects the exercise of the PLA-�s powers under that section.

Time when charges are payable and their recovery

38.-�(1) Charges which the Harbour Authority may demand, take and recover in respect of vessels shall be payable on the entry to London Gateway Port of any vessel in respect of which the charges are payable.

(2) Once payable, those charges may be demanded, taken and recovered by such persons, at such places and such times and under such terms and conditions as the Harbour Authority may from time to time appoint.

Security for charges

39.-�(1) The Harbour Authority may require any person who is liable, or intends to become liable, to pay charges to the Harbour Authority, to deposit with its collector, or to guarantee, such sum as is, in the opinion of the Harbour Authority, reasonable having regard to the amount of the charges.

(2) Where a person so required fails to deposit or guarantee the sum of money required, the Harbour Authority may, within the area of jurisdiction, detain the vessel in respect of which the charges have been or will be incurred until compliance with the requirement or until the charges are paid.

Disputes concerning rates

40. Section 46 (disputes concerning rates or charges occasioned by distress) of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) shall be read as though references to -�a justice-� were references to -�a court of competent jurisdiction-�.

Objection and arbitration in relation to charges

41.-�(1) Nothing in this Order shall affect the operation of section 31 (right of objection to ship, passenger and goods dues) of the 1964 Act.

(2) Article 66 (arbitration) shall not apply to articles 35 to 40 or to the provisions of the 1847 Act incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) which relate to those articles.

Power to appropriate berths, etc.

42.-�(1) Notwithstanding anything in section 33 (harbour, dock, and pier to be free to the public on payment of rates) of the 1847 Act or any other enactment, the Harbour Authority may set apart or appropriate any berths, land or facilities within the port premises for the exclusive, partial or preferential use and accommodation of any particular trade, person, activity, vessel or goods or any class of trades, persons, activities, vessels or goods, subject to the payment of such charges and subject to such terms, conditions and regulations as the Harbour Authority thinks fit.

(2) No person or vessel shall make use of any berth, land or facilities set apart or appropriated under this article without the consent of the Dockmaster or other duly authorised officer of the Harbour Authority and the Dockmaster or such officer may order any person or vessel making use of such a berth, land or facility without such consent to leave it.

(3) The provisions of section 58 (power of Harbour Master as to mooring of vessels in harbour) of the 1847 Act as incorporated in this Order by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) shall extend and apply to any such vessel.

Power to remove goods

43.-�(1) The Harbour Authority may remove goods which have been left on or in any part of the port premises where six hours have elapsed from the time when the Harbour Authority-�

(a)required the goods to be removed; or

(b)left a notice on the goods requiring their removal.

(2) Such removal shall be to the Harbour Authority-�s or any other public warehouse or store and at the expense and risk of the owner.

(3) Goods removed pursuant to paragraph (1) shall be subject to a lien for the cost of removal, and for any charges payable to the Harbour Authority by the owner in respect of the goods.

(4) The Harbour Authority may prevent the removal of goods removed or placed in store under this article until all charges have been paid.

(5) Where the Harbour Authority has given seven days-� notice to the owner of the goods, it may sell or otherwise dispose of the goods, and if so required by the owner, the Harbour Authority shall sell or otherwise dispose of the goods in such manner as it thinks fit and reimburse itself out of the proceeds of sale.

(6) The Harbour Authority shall hold any surplus of such proceeds of sale under paragraph (5) on trust for the person entitled to it.

(7) In this article -�goods-� includes vehicles and equipment.

Power to operate and use railways

44.-�(1) The Harbour Authority, or any person permitted by the Harbour Authority, may operate and use the railways comprised in the authorised works together with any ancillary works as a system, or part of a system, for the carriage of goods.

(2) The Harbour Authority may enter into agreements with Network Rail and the Office of Rail Regulation in connection with the construction, operation and use of the railways comprised in the authorised works.

Saving for regulated rights, etc.

45. Nothing in this Order shall affect any estate, right or interest granted by Network Rail in respect of a railway facility which is subject to an access contract within the meaning of Part 1 of the Railways Act 1993(26).

Powers of disposal

46.-�(1) The Harbour Authority may, on such terms and conditions as it thinks fit, but with the consent of the Secretary of State (except in the case mentioned in paragraph (5)), sell, lease, charge, mortgage, encumber or otherwise dispose of the whole or any part of the undertaking or the right to operate the undertaking.

(2) Any disposal under paragraph (1) may, amongst other things, provide for-�

(a)the exercise of the functions of the Harbour Authority under this Order by any other person; and

(b)for the transfer to any other person of the whole or any part of the undertaking together with the rights and obligations of the Harbour Authority in relation to the whole or any part of the undertaking transferred.

(3) The exercise of the powers of any enactment (including this Order) by any person in pursuance of any sale, lease, charge or disposal under paragraph (1), or any agreement under this article, shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by the Harbour Authority.

(4) For the avoidance of doubt, the making by the Harbour Authority in relation to the port premises of-�

(a)any agreement; or

(b)the grant of any right or interest in land (other than transfer of a freehold interest);

for the purpose of enabling any person other than the Harbour Authority to make use of, or to carry on the business of providing and operating services or facilities comprised within the port premises (whether or not provided by the Harbour Authority), does not constitute a disposal of the undertaking for the purposes of this article.

(5) The case referred to in paragraph (1) is the transfer by the Harbour Authority for a port-related use of a freehold interest in a single parcel of land within the area of jurisdiction of an area not exceeding 36 hectares (88.96 acres).

Conservation

47.-�(1) The Harbour Authority shall have the power to dedicate or designate for conservation or ecological purposes any land in which the Harbour Authority has an interest or over which it has control.

(2) The Harbour Authority shall not dedicate or designate under this article any land that abuts the river without the prior approval of the PLA, as provided for in paragraph 17 of Schedule 8.

Obstruction of officers

48.-�(1) Any person who-�

(a)intentionally obstructs an officer of the Harbour Authority who is acting in pursuance of this Order;

(b)without reasonable excuse fails to comply with a requirement properly made by such an officer; or

(c)without reasonable excuse fails to give such an officer any information or produce any document which he may require for the purpose of performance of his functions,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Any person who, in giving such information as is mentioned in sub-paragraph (c) of paragraph (1), makes a statement which he knows to be false, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) Nothing in paragraph (1) applies to the Harbour Master or to any person acting under the authority of the Harbour Master or the PLA.

Arrangements with Her Majesty-�s Revenue and Customs

49. The Harbour Authority and Her Majesty-�s Revenue and Customs may enter into any such agreement or arrangement as they think fit to provide for, or to facilitate, the assessment, collection or recovery of charges, including an agreement or arrangement as to the provision and maintenance of accommodation at the port premises.

Agreements with Network Rail

50.-�(1) The Harbour Authority and Network Rail may enter into and carry into effect agreements with respect to the construction, maintenance, use and operation of-�

(a)any designated works, or any part of those works; and

(b)any works required for the purposes of or in connection with any designated works or any part of those works,

by Network Rail or by the Harbour Authority, or by the Harbour Authority and Network Rail jointly.

(2) Any agreement made under this article may contain such incidental, consequential or supplementary provisions as may be agreed, including (but not limited to) provisions-�

(a)with respect to the defraying of, or the making of contributions towards, the costs of such construction, maintenance, use and operation as is referred to in paragraph (1), by the Harbour Authority or by Network Rail or by the Harbour Authority and Network Rail jointly; and

(b)for the exercise by Network Rail or the Harbour Authority or by Network Rail and the Harbour Authority jointly, of all or any of the powers and rights of Network Rail and the Harbour Authority (as the case may be) in respect of any of the works referred to in paragraph (1) and any works required for those purposes or in connection with those purposes.

(3) The exercise by the Harbour Authority or Network Rail or by the Harbour Authority and Network Rail jointly of any powers and rights under any enactment or contract pursuant to any such agreement as is authorised by paragraph (2) shall be subject to all statutory and contractual provisions relating to those powers and rights as would apply if they were exercised by the Harbour Authority or Network Rail (as the case may be) alone and accordingly, such provisions shall, with any necessary modifications, apply to the exercise of such powers and rights by the Harbour Authority or Network Rail, or by the Harbour Authority and Network Rail jointly, as the case may be.

(4) The Harbour Authority and Network Rail may enter into, and carry into effect, agreements for the transfer to and vesting in Network Rail or the Harbour Authority, or the Harbour Authority and Network Rail jointly, of-�

(a)the designated works or any part of those works; or

(b)any works, lands or other property required for the purposes of or in connection with any designated works or any part of those works,

together with any rights and obligations (whether or not statutory) of Network Rail or the Harbour Authority relating to any designated works or part of those works.

(5) In this article -�designated works-� means any part of the authorised works to be constructed on railway property.

Power to establish a police force

51.-�(1) On application by the Harbour Authority a justice of the peace may appoint persons to be constables and a person so appointed shall, on appointment, be attested as a constable in accordance with section 29 of the Police Act 1996(27).

(2) A justice of the peace may dismiss any constable appointed under paragraph (1) from his office and upon such dismissal all powers, protections and privileges vested in such a constable shall cease.

(3) A constable appointed under paragraph (1) may act as such within the area of jurisdiction and, subject to paragraph (5), whilst he is so acting he shall have all the powers and privileges of a constable.

(4) A constable appointed under paragraph (1) shall have powers of arrest within the area of jurisdiction and, where he pursues a person from the area of jurisdiction, shall have the same powers of arrest in respect of the person outside the area of jurisdiction as he would have within that area.

(5) Except in so far as it would otherwise conflict with his duties as a constable, the powers conferred on a constable appointed under this article are exercisable subject to paragraph 18 of Schedule 8 and for the purposes of that paragraph a constable shall be deemed to be an officer of the Harbour Authority.

Incorporation of Police and Criminal Evidence Act 1984

52. Part 1 (powers to stop and search), Part 2 (powers of entry, search and seizure), Part 3 (arrest), Part 4 (detention), Part 5 (questioning and treatment of persons by police) and Part 11 (miscellaneous and supplementary) of the Police and Criminal Evidence Act 1984(28), together with Schedules 1, 2, 5, 6 and 7 to that Act, shall be incorporated in this Order so far as applicable to the operation, management and use of the authorised works and so far as not inconsistent with the provisions of this Order.

Refusal of a landing place, etc.

53.-�(1) An officer of the Harbour Authority may prevent a vessel from using a landing place or berth provided by the Harbour Authority if the master of the vessel refuses to pay all applicable charges for such use.

(2) Subject to paragraph (3) an officer of the Harbour Authority may prevent a vessel from using a landing place or berth provided by the Harbour Authority if the master of the vessel refuses or is unable adequately to certify the origins, safety, identity or constitution of all or any freight, cargo, goods, materials, persons, animals or other things on board the vessel to the satisfaction of-�

(a)the Harbour Authority;

(b)any duly authorised official of Her Majesty-�s Government;

(c)a constable;

(d)Her Majesty-�s Coastguard;

(e)the Harbour Master; or

(f)any other person whose duty it is to ascertain the nature of items on board the vessel for the purposes of protecting the safety of any person either on board the vessel or elsewhere.

(3) Nothing in this article shall prevent the landing of a vessel that is under the control of an officer of the PLA or, in a case of emergency, under the direction of the PLA or one of its officers.

Power to discharge surface water into the river

54.-�(1) Subject to the provisions of paragraphs 5 and 6 of Schedule 8, the Harbour Authority shall have the power to discharge surface water into the river.

(2) Nothing in this Order authorises the entry into controlled waters of any matters whose entry or discharge into controlled waters is prohibited by section 85 of the Water Resources Act 1991(29).

Harbour Authority not to be a local lighthouse authority

55. Notwithstanding the provisions of section 193(2) of the Merchant Shipping Act 1995(30), nothing in this Order constitutes the Harbour Authority as a local lighthouse authority.

Harbour Authority not to be a port health authority

56. Notwithstanding the provisions of section 2 of the Public Health (Control of Disease) Act 1984(31), the Harbour Authority may not be designated as a port health authority.

PART 6PROTECTIVE PROVISIONS

Crown rights

57.-�(1) Nothing in this Order affects prejudicially any estate, interest, right, power, privilege, authority or exemption of the Crown, and in particular, nothing in this Order authorises the Harbour Authority to take, use, enter upon or in any manner interfere with any land, hereditaments or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary)-�

(a)belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those Commissioners; or

(b)belonging to a Government Department or held in trust for Her Majesty for the purposes of a Government Department, without the consent in writing of that Government Department.

(2) A consent under paragraph (1) may be given unconditionally or subject to such conditions or upon such terms as may be considered necessary or appropriate.

For the protection of the local highway authority

58.-�(1) This article applies to the construction of Works Nos. 1 to 8 (Sheets Nos. 224 to 239 of the deposited plans) so far as they relate to or affect the functions of the local highway authority.

(2) Before the Harbour Authority constructs any works referred to in paragraph (1) the Harbour Authority must first notify the local highway authority.

(3) During the construction of the works referred to in paragraph (1), the Harbour Authority shall at all times comply with all reasonable requests of the local highway authority as to public safety, standards of construction and traffic management and shall construct those works under the supervision (if given) of the local highway authority.

(4) For the purposes of the works referred to in paragraph (1), or of complying with the requests of the local highway authority pursuant to paragraph (3), the Harbour Authority may act as agent of the local highway authority.

(5) The Harbour Authority and the local highway authority may enter into agreements with respect to the construction of junctions and other highway improvement, construction or alteration works and such agreements may (without prejudice to the generality of this paragraph)-�

(a)make provision for the local highway authority or the Harbour Authority to carry out any functions under this Order which relate to Works Nos. 1 to 8 (Sheets Nos. 224 to 239 of the deposited plans) and for these purposes section 278 of the 1980 Act shall be construed as permitting the Harbour Authority or those authorised on its behalf to carry out the works in the public highway;

(b)provide for the vesting of the whole or any part of Works Nos. 1 to 8 (Sheets Nos. 224 to 239 of the deposited plans) in the local highway authority; and

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

(6) Nothing in this Order shall prevent the local highway authority at its own cost from constructing under its existing powers under the 1980 Act any part of Works Nos. 1 to 8 (Sheets Nos. 224 to 239 of the deposited plans).

(1) The Harbour Authority shall reimburse to the local highway authority the costs incurred for any supervision by the local highway authority of the Harbour Authority pursuant to paragraph (3) insofar as:

(a)that supervision is of those of the works referred to in paragraph (1) that it has been agreed at the time of supervision will be adopted by the local highway authority; and

(b)the local highway authority-�s costs do not exceed 5% of the cost of those works referred to in sub-paragraph (a).

(2) This article is without prejudice to the operation of section 278 of the 1980 Act.

For the protection of Thurrock Borough Council and others

59. Schedule 6 shall have effect.

For the protection of Network Rail

60. Schedule 7 shall have effect.

For the protection of the Port of London Authority

61. Schedule 8 shall have effect.

For the protection of the Trinity House Lighthouse Service

62. Schedule 9 shall have effect.

For the protection of the Environment Agency

63. Schedule 10 shall have effect.

For the protection of National Grid Gas plc and other statutory undertakers

64. Schedule 11 shall have effect.

PART 7MISCELLANEOUS AND GENERAL

No double recovery

65. Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Arbitration

66. Unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed by the London Court of International Arbitration on the application of either party after giving notice in writing to the other.

Defence of due diligence

67.-�(1) In proceedings for an offence under any provision of this Order it is a defence for the Harbour Authority to prove that it took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

(2) If in any case the defence provided by paragraph (1) involves allegations that the commission of the offence was due to the act or default of another person, the Harbour Authority shall not, without leave of the court, be entitled to rely on that defence unless, within a period of seven clear days before the hearing, it has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in its possession.

Local inquiries

68. The Secretary of State may cause to be held such inquiries as she may consider necessary in connection with the exercise of any powers or duties conferred or imposed upon her and the giving of any consent or approval under this Order, and subsections (2) to (5) of section 250 of the Local Government Act 1972(32) shall apply to any such inquiry as if it were an inquiry held in pursuance of subsection (1) of that section and the Harbour Authority were a local authority.

Certification of plans, etc.

69. The Company shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the deposited sections to the Secretary of State for certification that they are true copies of, respectively, the deposited plans and the deposited sections referred to in this Order, and a document so certified shall be admissible in any proceedings, as evidence of the contents of the document of which it is a copy.

SCHEDULES

Article 10(1)

SCHEDULE 1WORKS

1. In this Schedule-�

(a)-�Chainage Reference-� means the relevant chainage reference shown on the deposited plans and the deposited sections; and

(b)-�Coordinates Reference-� means the relevant coordinates reference shown on the deposited plans and the deposited sections and set out in the table below-�

2. The works referred to in article 10(1) are-�

Work No. 1 -� Improvement works to the A13/A128 Southfields Junction comprising a road (1400 metres in length) commencing at a point 650 metres west of the existing A128 Southfields Junction passing north-eastwards within a cutting, passing under an existing bridge and terminating 530 metres east of Barrington-�s Farm and incorporating service crossings. The improved A13/A128 Southfields Junction will incorporate a circulatory road which will cross the road described in this work on bridges replacing the existing bridges and will incorporate slip roads and bell-mouth junctions enabling vehicular access to and egress from the improved A13/A128 Southfields Junction to and from the road described in this work, the A1013 Stanford Road west, the A1013 Stanford Road east, the A128 Brentwood Road north and the A128 Brentwood Road south.

Work No. 2 -� Improvement works to the A13 comprising a road (1775 metres in length) commencing at the termination point of Work No. 1 passing north-eastwards for 300 metres within a cutting and terminating east of the existing cycleway FP48. The works will incorporate service crossings, areas for temporary or ancillary works, bell-mouth junctions with the A13 eastbound and A13 westbound service areas, and a footpath commencing at the point where the works join the existing footpath FP81 and terminating at a point 150 metres east of the A13 eastern service area. The road will be crossed by two new bridge works, the first carrying the existing footpath FP12 from a point 340 metres east of the eastern boundary of the A13 westbound service area, passing northwards over the road before terminating at a point 135 metres east of the A13 eastbound service area, and the second carrying the existing cycleway FP48 from a point 35 metres north-west of the A1013 Stanford Road, passing north-westwards over the road before terminating at a point 105 metres north-east of the property known as Talford.

Work No. 3 -� Improvement works to the A13/A1014 Junction comprising a road (1235 metres in length along Chainage Reference A) commencing at the termination point of Work No. 2, passing north-eastwards and terminating adjacent to a track at a point 300 metres north-east of the A1014 Manorway Junction at Stanford-le-Hope, and a road (800 metres in length along Chainage Reference B) commencing at a point 350 metres north-west of The Manorway rail overbridge, passing south-eastwards and terminating at the Southend Road overbridge. The improved A13/A1014 Junction will incorporate a circulatory road which will cross the roads described in this work on bridges, and will incorporate slip roads and bell-mouth junctions enabling vehicular access to and egress from the A13/A1014 Junction to and from the road described in this work, the A1013 Stanford Road and the B1007. This work will also incorporate service crossings, a culvert extension and areas for temporary or ancillary works.

Work No. 4 -� Improvement works to the A1014 comprising a road (750 metres in length) commencing at termination point of Work No. 3, Chainage Reference B (the Southend Road overbridge), passing eastwards and terminating immediately west of the Abbotts Hall Chase A1014 underpass, and incorporating service crossings and a pedestrian crossing. This work will also incorporate a footpath commencing at a point 100 metres west of the existing western A1014 subway, passing generally eastwards and terminating at a point 20 metres east of the existing western A1014 subway.

Work No. 5 -� Improvements to the A1014 Sorrells Roundabout comprising a road (667 metres in length along Chainage Reference A) commencing at the termination point of Work No. 4, passing north-eastwards and terminating at a point 300 metres north-east of the existing A1014 Sorrells Roundabout, and a road (300 metres in length along Chainage Reference B) commencing at a point south of No. 231 Corringham Road, passing southwards and terminating at a point 250 metres north of High Road. The improved A1014 Sorrells Roundabout will incorporate a circulatory road which will incorporate the roads described in this work and slip roads and bell-mouth junctions enabling vehicular access to and egress from the A1014 Sorrells Roundabout to and from the roads described in this work, The Sorrells and Corringham Road. This work will also incorporate a pedestrian crossing, service crossings and areas for temporary or ancillary works.

Work No. 6 -� Road access into the port development comprising a road (4029 metres in length along Chainage Reference A) commencing at the termination point of Work No. 5, Chainage Reference B, passing south-eastwards and then eastwards, crossing the road described in Work No. 8, crossing the Thameshaven Branch Line and sidings on the level crossing described in Work No. 7 and terminating at a point 10 metres south of the existing Thameshaven Branch Line. A road (520 metres in length along Chainage Reference B) commencing at a junction with the first road described in this work at a point 425 metres south-west of the existing bitumen plant, passing southwards and then south-eastwards, crossing the realigned Thameshaven Branch Line and sidings (Works Nos. 9 and 10) on a bridge or a level crossing and terminating within the area of jurisdiction, and a road (450 metres in length along Chainage Reference C) commencing at a junction with the first road described in this work at a point 230 metres east of the existing refinery control room, passing southwards and then south-eastwards, crossing the realigned Thameshaven Branch Line and sidings (Works Nos. 9 and 10) on a bridge before turning eastwards and terminating within the area of jurisdiction. This work will incorporate road crossings, service crossings, culvert crossings, pedestrian crossings and level crossings. This work also includes a footpath (1615 metres in length along Chainage Reference D) commencing at a point 70 metres west of the existing refinery electrical intake substation, passing northwards across the first road described in this work, then following existing field boundaries to the end of the existing Great Garlands farm track, before terminating at a point 195 metres north-west of the existing refinery Gate 1 access road.

Work No. 7 -� A road (1013 metres in length) commencing at the existing Gate 3 access to the refinery, passing generally southwards and terminating at a point 10 metres south of the existing eastern level crossing of the Thameshaven Branch Line. The road will cross the first road described in Work No. 6, and will incorporate a level crossing of the Thameshaven Branch Line and service crossings.

Work No. 8 -� A road (993 metres in length) commencing at a point 260 metres south-west of the existing bitumen plant, passing northwards and crossing the first road described in Work No. 6 and terminating at the existing Gate 1 access.

Work No. 9 -� A double track railway (5330 metres in length) commencing at a point 60 metres north of the existing junction of the Thameshaven Branch Line with the London Tilbury and Southend Railway mainline, passing northwards, turning eastwards and crossing over a new Mucking Creek railway bridge. The railway continues eastwards along the existing railway corridor, crossing over a new Wharf Road railway bridge and enters the area of jurisdiction north of the existing surface water outfall at Reactor Quay. The railway continues eastwards within the area of jurisdiction and terminates at a point east of the existing eastern level crossing at the intersection with the existing Thameshaven Branch Line. The railway will incorporate vehicular and pedestrian level crossings, service crossings, culvert crossings, surface water outfall crossings and protective works to a pylon situated 105 metres north-east of the existing Stanhope Industrial Park water tower. This work also includes the diversion of two foul mains 25 metres south of the existing Mucking Creek railway bridge and a new foul pumping main commencing at the pumping chamber in the Anglian Water sewage pumping station, passing eastwards to the northern edge of Stanhope Industrial Park access road, crossing under the railway described in this work and terminating 50 metres south-east of the existing refinery electrical intake substation.

Work No. 10 -� A railway (3465 metres in length) consisting of multiple loading sidings, reception sidings, loco-shunting sidings and crippled wagon sidings, commencing at the western end by junctions with the double track railway described in Work No. 9, passing eastwards, incorporating junctions with the railway described in Work No. 9 and terminating at buffers.

Work No. 11 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 1, passing north-eastwards along the existing shore line through Coordinates Reference 5 to Coordinates Reference 2, to the south by a line commencing at Coordinates Reference 3, passing north-eastwards and terminating at Coordinates Reference 4, to the west by a line commencing at Coordinates Reference 3, passing north-westwards and terminating at the existing shoreline at Coordinates Reference 1 and to the east by a line commencing at Coordinates Reference 4, passing north-westwards and terminating at the existing shoreline at Coordinates Reference 2, as shown on the deposited plans: Demolition of any structures, including jetties and other berthing structures; reclamation of an area of the river with a bund in front for the construction of port facilities and infrastructure; port surfacing and construction of a quay wall, and other above ground works, including associated storage areas, construction of buildings and supporting facilities, drainage, ducting etc.; on reclaimed or surfaced areas, temporary stockpiles for construction materials; and temporary offices and workshops, including concrete batching plants and aggregate processing plants.

Work No. 12 -� This work may be carried out within an area bounded to the north by the existing shore line commencing at Coordinates Reference 5, passing generally eastwards and terminating at Coordinates Reference 6, to the south by a line commencing at Coordinates Reference 7, passing north-eastwards and terminating at Coordinates Reference 8, to the west by a line commencing at Coordinates Reference 7, passing north-westwards along the boundary of Work No. 17 to the boundary of Work No. 11 at Coordinates Reference 3, following the southern boundary of Work No. 11 north-eastwards to Coordinates Reference 4, north-westwards to Coordinates Reference 2 and south-westwards to the existing shoreline at grid reference Coordinates Reference 5, and bounded to the east by a line commencing at grid reference Coordinates Reference 8, passing north-westwards and terminating at the existing shoreline at Coordinates Reference 6, as shown on the deposited plans: Demolition of any structures, including jetties and other berthing structures; reclamation of an area of the river with a bund in front for the construction of port facilities and infrastructure; port surfacing and construction of a quay wall or jetty, and other above ground works, including associated storage areas, construction of buildings and supporting facilities, drainage, ducting, etc.

Work No. 13 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 9, passing eastwards to Coordinates Reference 16, continuing generally eastwards following the southern boundary of Work No. 18 to Coordinates Reference 11, and then continuing eastwards and terminating at Coordinates Reference 10, and bounded to the west by the existing shoreline and to the south by the existing shoreline and Works Nos. 11 and 17, and to the east by a line commencing at Coordinates Reference 5, passing northwards and terminating at Coordinates Reference 10, as shown on the deposited plans: Filling of land for the construction of port facilities and infrastructure; port surfacing and construction of a retaining wall and other above ground works, including associated storage areas, construction of buildings and supporting facilities, drainage, ducting, etc.; construction of general civil works, earthworks, drainage, ducting, etc. in connection with the construction of Works Nos. 9 and 10; and temporary stockpile areas for construction materials, temporary offices and workshops, including concrete batching plants and aggregate processing plants.

Work No. 14 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 11, passing generally eastwards, turning south-eastwards at Coordinates Reference 19 to Coordinates Reference 12, then turning north-eastwards and terminating at Coordinates Reference 13, bounded to the south by a line commencing at Coordinates Reference 5, passing eastwards following the existing shoreline and the northern boundary of Works Nos. 12 and 24 and terminating at Coordinates Reference 14, bounded to the west by Work No. 13 and to the east by Work No. 16 and by a line commencing at Coordinates Reference 14, passing north-westwards and terminating at Coordinates Reference 13, as shown on the deposited plans: Filling of land for the construction of port facilities and infrastructure; port surfacing and construction of a quay wall and other above ground works, including associated storage areas, construction of buildings and supporting facilities, drainage, ducting, etc.; and construction of general civil works, earthworks, drainage, ducting, etc., in connection with the construction of Works Nos. 9 and 10.

Work No. 15 -� This work may be carried out within an area bounded to the north and east by a line commencing at Coordinates Reference 15, passing south-eastwards and terminating at Coordinates Reference 16, to the south by a line commencing at Coordinates Reference 9, passing eastwards following the northern boundary of Work No. 13 and terminating at Coordinates Reference 16, and to the west by a line commencing at Coordinates Reference 15, passing south-eastwards following the existing shoreline and terminating at Coordinates Reference 9, as shown on the deposited plans: Filling of land for the construction of port facilities and infrastructure; port surfacing and construction of a retaining wall and other above ground works, including associated storage areas, construction of buildings and supporting facilities, drainage, ducting, etc.; and construction of general civil works, earthworks, drainage, ducting, etc., in connection with the construction of Works Nos. 9 and 10.

Work No. 16 -� This work may be carried out within an area bounded to the north and east by a line commencing at Coordinates Reference 17, passing south-eastwards following the existing railway and terminating at Coordinates Reference 18, and to the south and west by a line commencing at Coordinates Reference 17, passing southwards to Coordinates Reference 19, turning south-eastwards and following the north-eastern boundary of Work No. 14 to Coordinates Reference 12, then turning north-east and terminating at Coordinates Reference 18, as shown on the deposited plans: Filling of land for the construction of port facilities and infrastructure.

Work No. 17 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 21, passing north-eastwards to Coordinates Reference 22 then passing southwards and eastwards following the existing shore line and terminating at Coordinates Reference 1, to the east by a line commencing at Coordinates Reference 7, passing north-westwards following the western boundaries of Works Nos. 11 and 12 and terminating at the existing shore line at Coordinates Reference 1, to the west by a line commencing at Coordinates Reference 20, passing north-westwards and terminating at Coordinates Reference 21, and to the south by a line commencing at Coordinates Reference 20, passing north-eastwards and terminating at Coordinates Reference 7, as shown on the deposited plans: Temporary works to facilitate the construction of Work No. 11 and placement of permanent rock armour on the riverbed.

Work No. 18 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 16, passing eastwards and terminating at Coordinates Reference 11, and to the south by the northern boundary of Work No. 13, as shown on the deposited plans: Construction of general civil works, earthworks, drainage, ducting, etc., in connection with the construction of Works Nos. 9 and 10; and temporary stockpile areas for construction materials, offices and workshops, including concrete batching plants and aggregate processing plants.

Work No. 19 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 23, passing eastwards and terminating at Coordinates Reference 24, to the south by a line commencing at Coordinates Reference 25, passing generally eastwards following the northern boundary of Works Nos. 14, 15 and 18, to the east by a line commencing at Coordinates Reference 17, passing northwards and terminating at Coordinates Reference 24, and to the west by a line commencing at Coordinates Reference 25, passing northwards and terminating at Coordinates Reference 23, as shown on the deposited plans: Construction of general civil works, earthworks, drainage, ducting, etc., in connection with the construction of Works Nos. 9 and 10.

Work No. 20 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 26, passing north-eastwards and terminating at the western boundary of Work No. 17 at Coordinates Reference 29, to the west by a line commencing at Coordinates Reference 26, passing south-eastwards and terminating at Coordinates Reference 27, to the east by a line commencing at Coordinates Reference 28, passing north-westwards to the southern boundary of Work No. 17 at Coordinates Reference 7, turning south-westwards to Coordinates Reference 20, then turning north-westwards to Coordinates Reference 29 and to the south by a line commencing at Coordinates Reference 27, passing north-eastwards and terminating at Coordinates Reference 28, as shown on the deposited plans: River training works consisting of one or more low-level retaining structures.

Work No. 21 -� A road (849 metres in length) commencing by a junction with Work No. 6, passing generally south-eastwards and terminating at the new quay wall described in Work No. 12 or the new jetty described in Work No. 24.

Work No. 22 -� A pipeline (801 metres in length) for the purposes of carrying petroleum product commencing at the boundary of the existing Shell tank farm, crossing the Thameshaven Branch Line and the railway described in Works Nos. 9 and 10, passing generally south-eastwards and terminating at the new jetty described in Work No. 24.

Work No. 23 -� A pipeline (3186 metres in length) for the purposes of carrying bitumen product commencing at the boundary of the existing bitumen plant expansion area at a point 160 metres south-east of the bitumen plant, passing southwards, then eastwards, crossing the Thameshaven Branch Line and the railway described in Works Nos. 9 and 10, and then passing generally south-eastwards and terminating at the new jetty described in Work No. 24.

Work No. 24 -� This work may be carried out within an area bounded to the north by a line commencing at Coordinates Reference 6, passing generally eastwards following the existing shore line and the southern boundary of Work No. 14 and terminating at Coordinates Reference 14, to the south by a line commencing at Coordinates Reference 8, passing north-eastwards and terminating at Coordinates Reference 30, to the west by a line commencing at Coordinates Reference 8, passing north-westwards following the eastern boundary of Work No. 12 to Coordinates Reference 6, and to the east by a line commencing at Coordinates Reference 30, passing north-westwards and terminating at the existing shoreline at Coordinates Reference 14, as shown on the deposited plans: Demolition of any structures, including jetties and other berthing structures and construction of a jetty.

Work No. 25 -� Mitigation works comprising the creation of up to 33 hectares of mudflat by lowering the existing ground level, breaching the existing sea wall and constructing a new sea wall or bund (950 metres in length) commencing by existing footpath FP190 at a point 400 metres south of The Warren cottages, passing eastwards and terminating by existing footpath FP190 at a point 200 metres south-east of Stanhope Industrial Park by Stanford-le-Hope Marshes.

Work No. 26 -� Mitigation works comprising the creation of at least 41 hectares of mudflat by lowering the existing ground level, breaching the existing sea wall which commences at a point east of Cliffe Sluice, passes eastwards and terminates east of Salt Fleet and constructing a new sea wall (2720 metres in length along Chainage Reference A) commencing at a point east of Cliffe Sluice by a junction with the existing sea wall, passing eastwards for 50 metres, southwards for 860 metres, turning eastwards following the northern bank of Hope Fleet to the junction with Salt Fleet, then following the northern bank of Salt Fleet before crossing Salt Fleet and turning northwards behind the existing sea wall and terminating at a point east of Salt Fleet by Egypt Bay. This work includes the construction of a temporary quay extending from the existing sea wall for construction and maintenance access only, construction of a temporary road (1712 metres in length along Chainage Reference B) for construction and maintenance access only commencing at a point 180 metres north-east of the junction of Hope Fleet with Salt Fleet, passing south-eastwards for 1712 metres and terminating at the junction with the old sea wall by Decoy Fleet, and improvements to the existing tracks which run, respectively, from the sheepfold adjacent to existing footpath FP37, passing northwards to a point 480 metres east of Cliffe Sluice (836 metres in length along Chainage Reference C), and from Decoy Fleet, passing southwards, to a point 330 metres south-west of Bromhey Farm (2426 metres in length along Chainage Reference D).

Article 10(5)

SCHEDULE 2RESTRICTIONS ON WORKS

1. In this Schedule, -�building-� does not include any form of crane or flood lighting column or similar such structure.

Containers and associated equipment

2. Within the port premises, containers may not be stacked above an elevation of 35 metres AOD.

3. Within the port premises, gantry cranes used for stacking or otherwise handling containers may not be installed or used above an elevation of 48 metres AOD.

4. Quayside container cranes may only be used in the area hatched brown on the planning restrictions plan and must not-�

(a)exceed 35 in number;

(b)have an elevation (with boom up) exceeding 145 metres AOD; or

(c)have an elevation (with boom down in operating condition) exceeding 100 metres AOD.

5. Quayside equipment other than container cranes, such as general cargo cranes and oil products loading arms, may only be installed and operated in the area hatched brown on the planning restrictions plan and may not have an elevation exceeding 137 metres AOD.

Other height restrictions

6. Subject to paragraph 10, in the area washed in yellow on the planning restrictions plan, buildings may not be constructed above an elevation of 40 metres AOD.

7. In the area washed in blue on the planning restrictions plan, buildings may not be constructed above an elevation of 13 metres AOD except for one building to be used for port marine control purposes and its associated radio and radar masts and antennae, which may be constructed to a maximum elevation of 60 metres AOD.

8. Material dredged pursuant to article 13 (power to dredge) may only be stored or stockpiled in the area stippled on the planning restrictions plan and up to an elevation of 25 metres AOD.

9. Within the port premises, internal harbour security fencing shall not exceed 4 metres in height above ground level.

Railways

10. In the area cross-hatched on the planning restrictions plan, railway lines and associated railway plant, machinery, bridges and buildings may not be constructed above an elevation of 20 metres AOD.

11. Only in the area cross-hatched on the planning restrictions plan may the following take place-�

(a)the construction, operation, re-laying, improvement and reconstruction of at grade and grade-separated crossings of rail and road; and

(b)the relocation or reconstruction, for the purposes of the operation of the undertaking, of the works described in Work No. 10.

Other construction restrictions

12. No flood lighting columns shall be constructed within 50 metres of the riverward boundaries of the port premises but this shall not prevent the use of lights on equipment referred to in paragraphs 4 and 5.

13. No more than five entry and exit complexes with associated gate facilities, barriers, fencing, inspection and security huts to serve the port premises are permitted.

14. No more than one multi-storey car storage facility is permitted with a maximum gross internal floor space of 425,000 square metres and a maximum height of 20 metres AOD.

15. No more than one multi-storey car park is permitted with a maximum gross internal floor space of 20,000 square metres and a maximum height of 20 metres AOD.

Activities permitted for construction or operational purposes only

16. Once constructed-�

(a)no part of the water frontage of the authorised works may be used other than for the berthing of vessels; and

(b)no part of the water frontage of the authorised works between Coordinates Reference 1 and Coordinates Reference 7 as shown on Sheet No. 216 of the deposited plans may be used for the berthing of container vessels or roll-on roll-off ships.

17. Construction plant, concrete batching plant, temporary grading, washing and weighing plant, temporary bridges, conveyor systems, haul roads, accesses, temporary buildings and offices and plant working spaces are only permitted to facilitate the construction or maintenance of the authorised works and for no other purpose and shall be removed once the use for which they were installed has ceased.

18. Storage of fuels including diesel, petroleum or liquid petroleum gas within the port premises is only permitted for the purposes of the operation of the undertaking.

19. The underground storage and pumping of storm, surface and waste water, and the construction of pump houses, foul sewage pumping stations and drainage systems is only permitted within the port premises to the extent that those activities and facilities are required for the purposes of the operation of the undertaking.

20. The construction and operation of electricity sub-stations is only permitted within the port premises to the extent required for the purposes of the operation of the undertaking.

21. No signage is permitted within the port premises other than that which is required for the purposes of the operation of the undertaking. This may include, without limitation, directional signage, signage required for health and safety purposes as well as logos and branding on structures or apparatus.

22. No relocation, reconstruction or improvement of the existing bitumen and aviation fuel pipeline within the port premises is permitted other than for the purposes of the construction of the authorised works.

23. Subject to paragraph 24, the area of jurisdiction shall not be used for any purpose other than as a harbour for container handling together with ancillary cargo and other uses incidental to the functions of the Harbour Authority and such other uses as are authorised by this Order.

24. Paragraph 23 shall not preclude-�

(a)the permanent use of no more than 36 hectares of the area of jurisdiction for Ro-Ro use, including car import and export and ancillary uses;

(b)the temporary use of the whole or part of the area of jurisdiction in excess of 36 hectares for Ro-Ro use, for separate periods for each part, or for the whole, of no more than five years in any one case;

(c)the permanent use of facilities and land within the area of jurisdiction for the handling of oil and other fuel products; or

(d)the use during construction of any part of the area of jurisdiction for the stockpiling, storage and handling of dredged materials by way of an aggregates wharf.

Application of Town and Country Planning legislation

25. The provisions of this Schedule shall be deemed to be conditions subject to which a planning permission was granted under section 70 of the 1990 Act and, accordingly, they shall be subject to the provisions of that Act and all associated legislation and, in particular, they may be varied in their application to the authorised works in accordance with sections 73, 73A and 97 of the 1990 Act and the Town and Country Planning (General Development Procedure) Order 1995(33).

Article 13

SCHEDULE 3DREDGING WORKS

1. In this Schedule-�

(a)-�Coordinates Reference-� means the relevant coordinates reference shown on the deposited plans and deposited sections and set out in the table below-�

(b)References to named channels and areas are references to such channels and areas as are shown from time to time on the relevant charts.

2. The works referred to in article 13(1) are as follows-�

Dredging Work No. 1 -� An area of the riverbed-�

Dredging Work No. 2 -� A deep water channel-�

Dredging Work No. 3 -� A deep water anchorage-�

Dredging Work No. 4 -� An area of the river-�

Dredging Work No. 5 -� Works ancillary to Work No. 17 and to the reclamation works authorised by Works Nos. 11 and 12 as required-�

Article 19

SCHEDULE 4STOPPING UP OF FOOTPATHS AND BRIDLEWAY AND NEW PUBLIC RIGHTS OF WAY TO BE SUBSTITUTED

Article 26

SCHEDULE 5APPLICATION OF PERMITTED DEVELOPMENT RIGHTS

PART 1GENERAL PERMITTED DEVELOPMENT

1.-�(1) In their application to any development authorised by this Order, or to other development carried out on land which falls to be operational land of London Gateway Port by virtue of this Order, article 3 of, and Parts 11 and 17 of Schedule 2 to the 1995 Order (which permit development authorised by a harbour empowerment order designating specifically both the nature of the development thereby authorised and the land on which it may be carried out, and development by certain statutory undertakers, respectively) shall have effect-�

(a)in the case of Part 11 only, as if the authority to construct given by this Order were limited to the authorised works substantially begun within twenty five years of the coming into force of this Order, or such extended period as the Secretary of State may, on the application of the Harbour Authority, allow; and

(b)subject to the restrictions contained in Schedules 2 and 6 to this Order.

(2) Nothing in sub-paragraph (1) shall affect the carrying out of any development which consists of any maintenance of the authorised works, which (to the extent it would not otherwise be) shall be permitted development as if it were included in article 3 of, and Parts 11 and 17 of Schedule 2 to the 1995 Order.

2.-�(1) Any change of use of the port premises to a use (other than an occasional or incidental use) which falls outside the development referred to in articles 10 to 13 shall be deemed to be a material change of use requiring planning permission granted on an application made under Part 3 of the 1990 Act or under any relevant provisions of the 1995 Order or the 1964 Act.

(2) Sub-paragraph (1) shall not have effect to restrict permitted development rights conferred by Parts 11 and 17 of Schedule 2 to the 1995 Order (which grants planning permission for the construction of the authorised works and use of the land authorised by this Order).

PART 2HABITATS REGULATIONS

3. Subject to paragraph 4, regulation 60(1) of the Habitats Regulations shall not apply to any planning permission which relates to the development authorised by this Order and which is granted by article 3(1) of the 1995 Order for the class of development described as permitted development in Parts 11 and 17 of Schedule 2 to the 1995 Order.

4. If and to the extent that any development authorised by this Order-�

(a)does not form part of a plan or project which was subject to an appropriate assessment under regulation 48 of the Habitats Regulations in connection with the making of this Order; and

(b)is not subject to a further consent, permission or authorisation by a competent authority within the meaning of the Habitats Regulations;

paragraph 3 shall not have the effect of disapplying regulation 60(1) of the Habitats Regulations in relation to any planning permission for that development.

Article 59

SCHEDULE 6FOR THE PROTECTION OF THURROCK BOROUGH COUNCIL AND OTHERS

General

1. The following provisions of this Schedule shall have effect for the protection of the appropriate authority and those whose interests it represents.

2.-�(1) In this Schedule-�

-�the A13 Lakeside Link-� means that part of the A13 trunk road running from Junction 30 to the junction with the A126;

-�the A13/Manorway junction works-� means highway works to the roundabout at the junction of the A13 with The Manorway, comprising-�

unless otherwise approved by the appropriate authority;

-�the appropriate authority-� means-�

-�beneficial use-� means the use of the authorised works to generate revenue from shipping but does not include any activities connected with the construction, marketing, security or maintenance of the authorised works;

-�berth-� means 350 metres of quay, associated infrastructure and equipment in the area of jurisdiction of the Harbour Authority capable of servicing a container vessel;

-�diverted Footpath 190-� means the new bridleway substituted for part of Footpath 190 as described in column (3) to Schedule 4;

-�the final highway works-� means the final works associated with Junction 30 and the A13 Lakeside Link, being-�

together with the implementation of VMS on the A13 westbound carriageway between its junctions with the A1089 and the A1012 and associated approaches;

-�first occupied-� means the use of the related development to generate revenue for purposes permitted by the outline planning permission applying to the related development but does not include occupation by personnel engaged in construction, fitting out, marketing or security of any part of the related development;

-�the interim highway works-� means the interim works associated with Junction 30 and the A13 Lakeside Link, being-�

-�Junction 30-� means Junction 30 on the M25 motorway;

-�Junction 31-� means Junction 31 on the M25 motorway;

-�The Manorway-� means that section of the A1014 from its junction with the A13 eastwards in the borough of Thurrock;

-�materially implemented-� means the carrying out of a material operation as defined in section 56(4) of the 1990 Act but excluding-�

-�MOVA-� means Microprocessor Optimised Vehicle Actuation or such other equivalent system providing for a real time reactive computer controlled traffic management system including all associated detection and ancillary equipment and road markings;

-�the new access road-� means a new road running southwards from the new Sorrells roundabout to provide access to the authorised works and the related development;

-�practically completed-� means complete such that the works concerned can be occupied or brought into beneficial use but does not include minor snagging items;

-�the Ro-Ro-� means 400 metres of quay, associated infrastructure and equipment in the area of jurisdiction provided for Ro-Ro use;

-�The Sorrells/A1014 junction works-� means the works to the existing Sorrells roundabout on The Manorway to replace the current roundabout with a junction with The Sorrells and to construct a new Sorrells roundabout south-east of the existing roundabout providing for connections with Corringham Road, Manorway East, Manorway West and the new access road together with associated works and a Toucan crossing at the western approach to the new roundabout;

-�the Thameshaven Branch Line-� means the railway branch line running eastwards from its junction with the London, Tilbury and Southend railway line; and

-�VMS-� means variable matrix signing,

(2) References to lettered and numbered uses are references to uses and classes of development within the meaning of the Town and Country Planning (Use Classes) Order 1987(36) within the related development.

The authorised works in combination with the related development

3. In circumstances where the related development is materially implemented and the authorised works are carried out, paragraphs 4 to 13 shall apply.

4. None of the B1(b), B1(c), B2 or B8 uses or the authorised works shall be first occupied or brought into beneficial use until the interim highway works have been practically completed.

5.-�(1) This paragraph shall apply unless the Highways Agency acting on behalf of the Secretary of State for Transport gives notice to the Harbour Authority that the final highway works need not be carried out.

(2) Subject to sub-paragraph (1), no more than the total number of berths forming part of the authorised works set out in column (1) of the table and the corresponding total amount of B1(b), B1(c), B2 or B8 floorspace set out in column (2) of that table shall be brought into beneficial use or first occupied until the final highway works have been practically completed-�

6. No more than the following combinations of B1(b), B1(c), B2 and B8 floorspace set out in column (1) of the table and the corresponding number of berths forming part of the authorised works set out in column (2) of that table shall be first occupied or brought into beneficial use prior to the completion of the new access road as a single carriageway road together with a cycleway, footway and alongside the carriageway the provision for appropriate emergency stacking space for lorries accessing the authorised works and including a Pegasus crossing where the access road crosses diverted Footpath 190-�

7. No more than the following combinations of B1(b), B1(c), B2 and B8 floorspace set out in column (1) of the table and the corresponding number of berths forming part of the authorised works set out in column (2) of that table shall be first occupied or brought into beneficial use prior to the completion of the new access road as a dual carriageway road together with a cycleway and footway and including a Pegasus crossing where the access road crosses diverted Footpath 190-�

8. No more than the following combinations of B1(b), B1(c), B2 and B8 floorspace set out in column (1) of the table and the corresponding number of berths forming part of the authorised works set out in column (2) of that table shall be first occupied or brought into beneficial use prior to the completion of highway works on the A13 at its junction with the A128 to provide an additional dedicated slip lane from the A13 eastbound off-slip to the A128 northbound together with associated flaring and signage-�

9. No more than 100,000m² of the B1(b), B1(c), B2 and B8 development together with the Ro-Ro or, alternatively, 1 berth without the Ro-Ro, shall be first occupied or brought into beneficial use prior to the installation of a system for signalling traffic priority at the junction of the A13 with The Manorway.

10. No more than the following combinations of B1(b), B1(c), B2 and B8 floorspace set out in column (1) of the table and the corresponding number of berths forming part of the authorised works set out in column (2) of that table shall be first occupied or brought into beneficial use prior to the completion of the A13 / Manorway junction works-�

11. No more than 157,000m² of B1(b), B1(c), B2 and B8 development shall be first occupied in combination with the bringing into beneficial use of the Ro-Ro or, alternatively, 1 berth without the Ro-Ro, prior to the completion of the following works-�

(a)The Sorrells/A1014 junction works;

(b)a Toucan Crossing on Springhouse Road at its junction with Manorway East;

(c)improvements as approved by the appropriate authority to the two pedestrian subways at The Manorway; and

(d)noise mitigation works for the new Sorrells roundabout as approved by the appropriate authority.

12. No more than 167,000m² of B1(b), B1(c), B2 and B8 development and the Ro-Ro or, alternatively, 1 berth without the Ro-Ro, shall be first occupied or brought into beneficial use prior to the completion of the construction of acoustic barriers where appropriate-�

(a)along either side of The Manorway from its junction with the A13 to the new Sorrells roundabout;

(b)along the northern section of the new access road;

(c)along either side of the A13 from where it meets Stanford Road immediately west of the junction of Stanford Road and Buckingham Hill Road north-eastwards to the point north of Caldwell Road; and

(d)along the south side of the A13 from a point north of Hemley Road to the junction with Saffron Gardens,

in each case as approved by the appropriate authority and in conformity with Highways Agency Standard HA 66/95 -�Environmental Barriers Technical Requirements-� (or any standard which may replace it).

13. No more than the following combinations of B1(b), B1(c), B2 and B8 floorspace set out in column (1) of the table and the corresponding number of berths forming part of the authorised works set out in column (2) of that table shall be first occupied or brought into beneficial use prior to the completion of re-surfacing works to provide a low noise road surface (in accordance with a scheme to be submitted to and approved by the appropriate authority) to The Manorway between the A13 junction and up to and including the junction with The Sorrells-�

The authorised works without the related development

14.-�(1) In circumstances where the related development is not materially implemented but the authorised works are carried out-�

(a)none of the authorised works shall be brought into beneficial use until the interim highway works have been practically completed;

(b)no more than the Ro-Ro or, alternatively, 1 berth without the Ro-Ro, shall be brought into beneficial use prior to-�

(i)the completion of the works referred to in paragraphs 12(a) to (d);

(ii)the completion of The Sorrells/A1014 junction works; and

(iii)the installation of a system for signalling traffic priority at the junction of the A13 with The Manorway;

(c)no more than the Ro-Ro and 2 berths or, alternatively, 3 berths without the Ro-Ro, shall brought into beneficial use prior to-�

(i)the completion of the new access road as a single carriageway road together with-�

(aa)a cycleway;

(bb)a footway;

(cc)provision for emergency stacking space alongside the carriageway for lorries accessing the authorised works; and

(dd)a Pegasus crossing where the new access road crosses the diverted Footpath 190;

(ii)the completion of the highway works on the A13 at its junction with the A128 including flaring and signage; and

(iii)the completion of the A13/Manorway junction works;

(d)no more than the Ro-Ro and 5 berths or, alternatively 6 berths without the Ro-Ro, shall be brought into beneficial use until the final highway works have been practically completed; and

(e)no more than the Ro-Ro and 6 berths or, alternatively 7 berths without the Ro-Ro, shall be brought into beneficial use prior to-�

(i)the completion of the new access road as a dual carriageway road together with a cycleway and footway and including a Pegasus crossing where the access road crosses the diverted Footpath 190; and

(ii)the completion of re-surfacing works to provide a low noise road surface (in accordance with a scheme to be submitted to and approved by the appropriate authority) to The Manorway between the A13 junction and up to and including The Sorrells junction.

(2) Sub-paragraph (1)(d) shall apply unless the Highways Agency acting on behalf of the Secretary of State for Transport gives notice to the Harbour Authority that the final highway works need not be carried out.

Travel Plan

15. None of the authorised works shall be brought into beneficial use until the detailed measures comprising a travel plan for the operation of the undertaking have been approved by the appropriate authority following consultation with the local highway authority and the Highways Agency (on behalf of the Secretary of State).

Noise mitigation measures

16. Prior to bringing into beneficial use any of the authorised works-�

(a)the Harbour Authority shall agree with the appropriate authority measures appropriate to minimise the possibility of the night-time resultant free-field noise levels resulting either from the authorised works or the authorised works together with the related development at Great Garlands Farm, Old Hall Farm and Oak Farm exceeding 35dB LAeq (1 hour); and

(b)the Harbour Authority shall implement those measures.

17.-�(1) The Harbour Authority and the appropriate authority shall agree measures to provide noise mitigation for any building that would fall within Regulation 7 of the Noise Insulation (Railways and Other Guided Transport Systems) Regulations 1996(37) if the provisions of those Regulations were applicable to the entire length of the Thameshaven Branch Line.

(2) No more than ten trains servicing the authorised works in any 24 hour period shall be permitted to use the Thameshaven Branch Line prior to the completion by or on behalf of the Harbour Authority of the measures agreed under sub-paragraph (1).

(3) In any event, no trains servicing the authorised works may be scheduled to arrive at or depart from the port premises between the hours of 0700 and 1000, or between the hours of 1600 and 1900.

Sustainable handling and transport

18. Construction of the authorised works shall not be commenced until the Harbour Authority has agreed with the appropriate authority a scheme for the sustainable handling and transport of construction materials and dredged materials into and out of the area of jurisdiction.

Storage of fluids

19. Notwithstanding the provisions of the 1995 Order any oil and other chemical storage tanks, buildings, ancillary handling facilities, filling, drawing and overflow pipes shall be enclosed within an impervious bunded area of at least 110% of the tank capacity.

Application of Town and Country Planning legislation

20. The provisions of this Schedule shall be deemed to be conditions subject to which a planning permission was granted under section 70 of the 1990 Act and, accordingly, they shall be subject to the provisions of that Act and all associated legislation and in particular they may be varied in accordance with sections 73, 73A and 97 of that Act and the Town and Country Planning (General Development Procedure) Order 1995(38).

Article 60

SCHEDULE 7FOR THE PROTECTION OF NETWORK RAIL

1.-�(1) The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and Network Rail, have effect for the protection of Network Rail.

(2) In this Schedule-�

-�construction-� includes alteration, reconstruction and any non-routine maintenance and -�construct-� and -�constructed-� have corresponding meanings;

-�the engineer-� means an engineer to be appointed by Network Rail for the purpose in question;

-�plans-� includes sections, designs, drawings, specifications, soil reports, calculations and descriptions (including descriptions of methods of construction), staging proposals and programmes;

-�relevant costs-� means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail-�s railway network as a result of the construction of the specified works or of any such act as is mentioned in paragraph 18;

-�the specified works-� means so much of the authorised works as may be situated upon, across, under, over or within 15 metres of, or may in any way affect, railway property; and

-�train operator-� means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993(39).

2. The Harbour Authority shall not, under the powers conferred by this Order, acquire or enter upon, take or use (whether temporarily or permanently) any railway property, or acquire any new rights over any railway property unless such acquisition, entry or use is with the consent of Network Rail.

3. The provisions of article 32 (extinction of private rights of way) shall not apply to any right of access of Network Rail to railway property but such right of access may be diverted with the consent of Network Rail.

4. The exercise by the Harbour Authority against Network Rail of the powers of section 11(3) of the 1965 Act shall be confined to lands in relation to which the Harbour Authority-�s powers of compulsory acquisition are not subject to the consent of Network Rail under paragraph 2.

5. Where Network Rail is asked to give its consent pursuant to paragraphs 2, 3 or 4, such consent shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions.

6. The Harbour Authority shall before commencing construction of the specified works supply to Network Rail proper and sufficient plans for the reasonable approval of the engineer and shall not commence such construction of the specified works until plans of that work have been approved in writing by the engineer or settled by arbitration.

7. The approval of the engineer under paragraph 6 shall not be unreasonably withheld or delayed and if by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated his disapproval of those plans and the grounds of his disapproval he shall be deemed to have approved the plans as submitted.

8. If by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail, Network Rail gives notice to the Harbour Authority that Network Rail desires itself to construct any part of the specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail or the services of train operators using the same then, if the Harbour Authority desires such part of the specified works to be constructed, Network Rail shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the Harbour Authority in accordance with the plans approved or deemed to be approved or settled as aforesaid.

9.-�(1) When signifying his approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in his opinion should be carried out before the commencement of construction of the specified works to ensure the safety or stability of railway property, the continuation of safe and efficient operation of the railways of Network Rail or the services of train operators using the same (including any relocation of works, apparatus and equipment necessitated by the specified works) and the comfort and safety of passengers who may be affected by the specified works.

(2) Such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail, with all reasonable dispatch or, if Network Rail so desires such protective works shall be carried out by the Harbour Authority at its own expense. The Harbour Authority shall not commence the construction of the specified works until the engineer has notified the Harbour Authority that the protective works have been completed to his reasonable satisfaction.

10. Any specified work and any protective works to be constructed by virtue of paragraph 9 shall, when commenced, be constructed-�

(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under this Schedule;

(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer; and

(c)in such manner as to cause as little damage as possible to railway property and as little interference as may be reasonably practicable with the conduct of traffic on the railways of Network Rail;

and, if any damage to railway property or any such interference or obstruction is caused by the carrying out of the specified works, the Harbour Authority shall, notwithstanding any such approval, make good such damage and shall pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

11. The Harbour Authority shall-�

(a)at all times afford reasonable facilities to the engineer for access to the specified works during their construction; and

(b)supply the engineer with all such information as he may reasonably require with regard to the specified works or the method of construction of the specified works.

12. Network Rail shall at all times afford reasonable facilities to the Harbour Authority and its agents for access to any works carried out by Network Rail under this Schedule during their construction and shall supply the Harbour Authority with such information as it may reasonably require with regard to such works or the method of construction of those works.

13.-�(1) If any alterations or additions, either permanent or temporary, to railway property are reasonably necessary in consequence of the construction of a specified work, either-�

(a)during the construction of the specified works or any protective works under paragraph 9; or

(b)during a period of 12 months after the completion of the specified works,

then such alterations and additions may be carried out by Network Rail.

(2) If Network Rail gives to the Harbour Authority reasonable notice of its intention to carry out alterations or additions as provided for in sub-paragraph (1), the Harbour Authority shall pay to Network Rail the reasonable cost of such alterations or additions including, in respect of permanent alterations and additions, a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations and additions.

(3) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions referred to in sub-paragraph (1) a capitalised sum representing such saving shall be set off against any sum payable by the Harbour Authority to Network Rail under sub-paragraph (2).

14. The Harbour Authority shall repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail-�

(a)in constructing any part of the specified works on behalf of the Harbour Authority as provided by paragraph 8 or in constructing any protective works under the provisions of paragraph 9(2) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b)in respect of the supervision by the engineer of the construction of the specified works and otherwise in connection with the implementation of the provisions of this Schedule;

(c)in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;

(d)in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of the specified works, or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of the specified works.

15. If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the Harbour Authority informing it that the state of maintenance of the specified work appears to be such as may adversely affect the operation of railway property, the Harbour Authority shall, on receipt of such notice, take such steps as may be reasonably necessary to put the specified works in such state of maintenance as not to adversely affect railway property.

16. The Harbour Authority shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it shall have first consulted Network Rail and it shall comply with Network Rail-�s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

17. Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall be repaid by the Harbour Authority to Network Rail provided that 56 days-� previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the Harbour Authority.

18. The Harbour Authority shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail-�

(a)by reason of the construction or maintenance of the specified works or the failure of the specified works; or

(b)by reason of any act or omission of the Harbour Authority or of any person in its employment or of its contractors or others whilst engaged upon the specified works;

and the Harbour Authority shall indemnify Network Rail from and against all claims and demands arising out of or in connection with the specified works or any such failure, act or omission and the fact that any act or thing may have been done by Network Rail on behalf of the Harbour Authority or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employment or of its contractors or agents) excuse the Harbour Authority from any liability under the provisions of this Schedule.

19. Network Rail shall give to the Harbour Authority reasonable notice of any claim or demand as mentioned in paragraph 18 and no settlement or compromise of such a claim shall be made without the prior consent of the Harbour Authority.

20.-�(1) In this paragraph-�

-�EMI-� means, subject to sub-paragraph (2), electromagnetic interference with Network Rail-�s apparatus generated by the operation of the Harbour Authority-�s apparatus where such interference is of a level which adversely affects the safe operation of Network Rail-�s apparatus;

-�the Harbour Authority-�s apparatus-� means any electric lines, circuits, wires, apparatus, equipment and other works of any description owned or used (or intended to be used) by the Harbour Authority for the purpose of the authorised works; and

-�Network Rail-�s apparatus-� means any lines, circuits, wires, apparatus or equipment owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to Network Rail-�s apparatus carried out after approval of those plans under paragraph 6 for the relevant part of the authorised works giving rise to EMI unless the Harbour Authority has been given notice in writing before the approval of the plans of the intention to make such change, other than any change carried out by Network Rail as part of, or in consequence of the authorised works.

(3) Subject to sub-paragraph (4), the Harbour Authority shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the Harbour Authority-�s compliance with sub-paragraph (3)-�

(a)the Harbour Authority shall consult with Network Rail as early as reasonably practicable to identify all Network Rail-�s apparatus which may be at risk of EMI, and thereafter shall continue to consult with Network Rail (both before and after formal submission of plans under paragraph 6) to identify all potential causes of EMI and the measures required to eliminate them;

(b)Network Rail shall make available to the Harbour Authority all information in the possession of Network Rail reasonably requested by the Harbour Authority in respect of Network Rail-�s apparatus identified pursuant to sub-paragraph (4)(a); and

(c)Network Rail shall allow the Harbour Authority reasonable facilities for the inspection of Network Rail-�s apparatus identified pursuant to sub-paragraph (4)(a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail-�s apparatus, Network Rail shall not withhold its consent unreasonably to modifications of Network Rail-�s apparatus, but the means of prevention and the method of their execution shall be selected in Network Rail-�s reasonable discretion and in relation to such modifications, paragraph 6 shall have effect subject to this sub-paragraph.

(6) If at any time prior to the opening of the authorised works for the passage of railway traffic and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the Harbour Authority shall immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the Harbour Authority-�s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent specified in sub-paragraph (5)) to Network Rail-�s apparatus.

(7) In the event of EMI having occurred-�

(a)the Harbour Authority shall afford reasonable facilities to Network Rail for access to the Harbour Authority-�s apparatus in the investigation of such EMI;

(b)Network Rail shall afford reasonable facilities to the Harbour Authority for access to Network Rail-�s apparatus in the investigation of such EMI; and

(c)Network Rail shall make available to the Harbour Authority any additional material information in its possession reasonably requested by the Harbour Authority in respect of Network Rail-�s apparatus or such EMI.

(8) Where Network Rail approves modifications to Network Rail-�s apparatus pursuant to sub-paragraphs (5) or (6)-�

(a)Network Rail shall allow the Harbour Authority reasonable facilities for the inspection of the relevant part of Network Rail-�s apparatus; and

(b)any modifications to Network Rail-�s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the Harbour Authority in accordance with the approval given.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 18 shall apply to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail-�s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 14(a) any modifications to Network Rail-�s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

21.-�(1) The sums payable by the Harbour Authority under paragraph 18 shall include a sum equivalent to the relevant costs.

(2) Subject to the terms of any agreement between Network Rail and the relevant train operators regarding the timing or method of payment of the relevant costs in respect of that train operator, once received, Network Rail shall promptly pay to each train operator the amount of any sum referred to in sub-paragraph (1) that relates to the relevant costs of that train operator.

(3) The obligation under paragraph 18 and sub-paragraph (1) to pay to Network Rail the relevant costs shall, in the event of default, be enforceable directly by a train operator concerned to the extent that such a sum would be payable to that operator pursuant to sub-paragraph (2).

Article 61

SCHEDULE 8FOR THE PROTECTION OF THE PORT OF LONDON AUTHORITY

General

1.-�(1) The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and the PLA, have effect for the protection of the PLA and the users of the river.

(2) For the purposes of this Schedule, the definition of -�tidal work-� shall be taken to include-�

(a)any projection over the river outside the area of jurisdiction by booms, cranes and similar plant or machinery, whether or not situated within the area of jurisdiction; and

(b)any authorised work which affects the river or any functions of the PLA, whether or not that authorised work is within the PLA limits,

but shall not include any maintenance dredging.

Tidal Works: approval of detailed design

2.-�(1) Before-�

(a)submitting any plans and sections for any tidal work to the Secretary of State for her approval under article 16 (tidal works not to be constructed without approval of the Secretary of State);

(b)commencing any operation for the construction of a tidal work where approval of the Secretary of State under article 16 (tidal works not to be constructed without approval of the Secretary of State) is not required; or

(c)commencing any operation for the maintenance of a tidal work,

the Harbour Authority shall submit to the PLA plans and sections of the tidal work or operation and such further particulars as the PLA may, within 28 days from the day on which the plans and sections are submitted under this sub-paragraph, reasonably require.

(2) No application for the Secretary of State-�s approval under article 16 (tidal works not to be constructed without approval of the Secretary of State) shall be made in respect of a tidal work until plans and sections in respect of that tidal work submitted under sub-paragraph (1) have been approved by the PLA.

(3) Any tidal work not requiring the Secretary of State-�s approval under article 16 (tidal works not to be constructed without approval of the Secretary of State) shall not be constructed, and no tidal work shall be maintained, except in accordance with such plans as may be approved in writing by the PLA or determined under paragraph 24.

(4) Any approval of the PLA required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable requirements as the PLA may make for the protection of-�

(a)traffic in, or the flow or regime of, the river;

(b)the use of its operational land or the river for the purposes of performing its functions; or

(c)the performance of any of its functions connected with environmental protection.

(5) Requirements made under sub-paragraph (4) may include conditions as to-�

(a)the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the tidal work; and

(b)the expiry of the approval if the Harbour Authority does not commence construction of the tidal work approved within a prescribed period.

(6) Subject to sub-paragraphs (8) and (9), any such approval shall be deemed to have been refused if it is neither given nor refused within 42 days of the specified day.

(7) Before making a decision on any such approval, the PLA shall take into account any opinion on the plans and sections provided to it by the Environment Agency.

(8) Accordingly, an approval of the PLA under this paragraph shall not be deemed to have been unreasonably withheld if approval within the time limited by sub-paragraph (6) has not been given pending the outcome of any consultation on the approval in question that the PLA is obliged in the proper exercise of its functions to carry out provided that during the course of such consultation, the PLA has acted with all due expedition.

(9) In this paragraph -�the specified day-� means, in relation to any tidal work-�

(a)the day on which plans of that work are submitted to the PLA under sub-paragraph (1); or

(b)the day on which the Harbour Authority provides the PLA with all such particulars of the work as have been requested by the PLA under that sub-paragraph;

whichever is the later.

(10) Whenever the Harbour Authority provides the Secretary of State with an environmental document it shall at the same time send a copy to the PLA.

3. Subject to paragraph 21, no tidal work shall be subject to any of the controls in sections 66 to 75 of the 1968 Act.

4. Any operations for the construction of any tidal work approved in accordance with this Order shall, once commenced, be carried out by the Harbour Authority with all reasonable dispatch and to the reasonable satisfaction of the PLA so that river traffic, the flow or regime of the river and the exercise of the PLA-�s functions shall not suffer more interference than is reasonably practicable, and the PLA shall be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.

Discharges, etc.

5.-�(1) The Harbour Authority shall not without the consent of the PLA-�

(a)deposit in or allow to fall or be washed into the river any gravel, soil or other material;

(b)discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise; or

(c)directly or indirectly discharge any water into the river.

(2) Any consent of the PLA under this paragraph shall not be unreasonably withheld but may be given subject to such terms and conditions as the PLA may reasonably impose.

(3) Any such approval shall be deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 35 days of the day on which the request for consent is submitted under sub-paragraph (1).

(4) In its application to the discharge of water into the river, article 54 (power to discharge surface water into the river) shall have effect subject to the terms of any conditions attached to a consent given under this paragraph.

6. The Harbour Authority shall not, in exercise of the powers conferred by article 54 (power to discharge surface water into the river), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved as a tidal work under this Order or is otherwise approved in writing by the PLA.

Obstruction in river

7. If any pile, stump or other obstruction to navigation becomes exposed in the course of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the Harbour Authority shall, as soon as reasonably practicable after the receipt of notice in writing from the PLA requiring such action, remove it from the river or, if it is not reasonably practicable to remove it-�

(a)cut the obstruction off at such level below the bed of the river as the PLA may reasonably direct; or

(b)take such other steps to make the obstruction safe as the PLA may reasonably require.

Removal, etc. of PLA moorings and buoys

8. If-�

(a)by reason of the construction of any tidal work it is reasonably necessary for the PLA to incur costs in temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the PLA, or laying down and removing substituted moorings or buoys, or carrying out dredging operations for any such purpose, not being costs which it would have incurred for any other reason; and

(b)the PLA gives to the Harbour Authority not less than 28 days-� notice of its intention to incur such costs, and takes into account any representations which the Harbour Authority may make in response to the notice within 14 days of the receipt of the notice,

the Harbour Authority shall pay the costs reasonably so incurred by the PLA.

Navigational lights, buoys, etc.

9. In addition to any requirement under article 18 (lights on tidal works, etc.), the Harbour Authority shall, at or near every tidal work, and any other work of which the Harbour Authority is in possession in exercise of any of the powers of this Order (being in either case a work which is below mean high water level forming part of the river), exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the PLA may from time to time reasonably require.

Removal of temporary works

10. On completion of the construction of any part of a permanent authorised work, the Harbour Authority shall as soon as practicable remove-�

(a)any temporary tidal work carried out only for the purposes of that part of the permanent work; and

(b)any materials, plant and equipment used for such construction,

and shall make good the site to the reasonable satisfaction of the PLA.

Protective action

11.-�(1) If any tidal work-�

(a)is constructed otherwise than in accordance with the requirements of this Schedule or with any condition in an approval given pursuant to paragraph 2(4); or

(b)during construction gives rise to sedimentation, scouring, currents or wave action detrimental to traffic in, or the flow or regime of, the river,

then the PLA may by notice in writing require the Harbour Authority at the Harbour Authority-�s own expense to comply with the remedial requirements specified in the notice.

(2) The requirements that may be specified in a notice given under sub-paragraph (1) are-�

(a)in the case of a tidal work to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of-�

(i)this Schedule; or

(ii)the condition that has been breached; or

(b)in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river.

(3) If the Harbour Authority does not comply with a notice under sub-paragraph (1), or is unable to do so then the PLA may in writing require the Harbour Authority to-�

(a)remove, alter or pull down the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the PLA reasonably requires) to its former condition; or

(b)take such other action as the PLA may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

(4) If a tidal work gives rise to environmental impacts over and above those anticipated by any environmental document, the Harbour Authority shall, in compliance with its duties under any enactment and, in particular, under section 48A of the 1964 Act, take such action as is necessary to prevent or mitigate those environmental impacts and in so doing shall consult and seek to agree the necessary measures with the PLA.

(5) If the PLA becomes aware that any tidal work is causing an environmental impact over and above those anticipated by any environmental document, the PLA shall notify the Harbour Authority of that environmental impact, the reasons why the PLA believes that the environmental impact is being caused by the tidal work and of measures that the PLA reasonably believes are necessary to counter or mitigate that environmental impact. The Harbour Authority shall implement the measures that the PLA has notified to the Harbour Authority or shall implement such other measures as the Harbour Authority believes are necessary to counter the environmental impact identified, giving reasons to the PLA as to why it has implemented such other measures.

Abandoned or decayed works

12.-�(1) If any tidal work or any other work of which the Harbour Authority is in possession in exercise of any of the powers of this Order (being in either case a work which is below mean high water level) is abandoned or falls into decay, the PLA may by notice in writing require the Harbour Authority to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the PLA reasonably requires) to restore the site to its former condition.

(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the PLA may by notice in writing require the Harbour Authority to take such reasonable steps as may be specified in the notice-�

(a)to repair and restore the work or part of it; or

(b)if the Harbour Authority so elects, to remove the tidal work and (to such extent as the PLA reasonably requires) to restore the site to its former condition.

(3) If after such reasonable period as may be specified in a notice under this paragraph the Harbour Authority has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the PLA may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the Harbour Authority.

Facilities for navigation

13.-�(1) The Harbour Authority shall not in the exercise of the powers granted by this Order interfere with any marks, lights or other navigational aids in the river without the agreement of the PLA, and shall ensure that access to such aids remains available during and following construction of any tidal works.

(2) The Harbour Authority shall provide at any tidal works, or shall afford reasonable facilities at such works (including an electricity supply) for the PLA to provide at the Harbour Authority-�s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the PLA may deem necessary by reason of the construction of any tidal works, and shall ensure that access remains available to apparatus during and following construction of such works.

(3) Without prejudice to section 133 of the 1968 Act (Lights detrimental to navigation), the Harbour Authority shall comply with the directions of the Harbour Master from time to time with regard to the lighting on the tidal works or within London Gateway Port, or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river.

Survey of riverbed

14.-�(1) Before the commencement of construction of the first tidal work to be constructed following approval pursuant to article 16 (tidal works not to be constructed without approval of the Secretary of State), the PLA may, at the Harbour Authority-�s expense, carry out a survey of such parts of the river as might be affected by sedimentation, scouring, currents or wave action that might result from the construction of such of the authorised works as would constitute tidal works if they were to be constructed, for the purposes of establishing the condition of the river at that time.

(2) Before the commencement of construction of any other tidal work approved pursuant to article 16 (tidal works not to be constructed without approval of the Secretary of State), the PLA may, at the Harbour Authority-�s expense, carry out a survey of such parts of the river as might be affected by sedimentation, scouring, currents or wave action resulting from that tidal work for the purpose of establishing the condition of the river at that time.

(3) The PLA may carry out such surveys of the river as are reasonably required during the construction of any tidal work to ascertain the effect of that tidal work on the river and the PLA shall make available to the Harbour Authority the results of any such survey.

(4) After completion of, respectively, any tidal work and all the tidal works constructed under this Order, the PLA may, at the Harbour Authority-�s expense carry out a further survey of the parts of the river which were surveyed prior to the construction of that work, or as the case may be a survey of the completed tidal works as so constructed, for the purpose of establishing the condition of the river and the effect that the tidal work is, or as the case may be the tidal works are, having on navigation, the flow and the regime of the river and the exercise of the PLA-�s functions.

(5) The PLA shall not under this paragraph carry out a survey of any part of the river as respects which the Harbour Authority has provided to the PLA survey material which the PLA is satisfied establishes the condition of the river, and in the case of a survey under sub-paragraph (3), the effect of the tidal work, or as the case may be the tidal works.

Sedimentation, etc.: remedial action

15.-�(1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which-�

(a)is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and

(b)for the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the PLA be removed or made good.

(2) The Harbour Authority shall either-�

(a)pay to the PLA any additional expense to which the PLA may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or

(b)carry out the necessary dredging at its own expense and subject to the prior approval of the PLA, such prior approval not to be unreasonably withheld or delayed;

and the expenses payable by the Harbour Authority under this paragraph include any additional expenses accrued or incurred by the PLA in carrying out surveys or studies in connection with the implementation of this paragraph.

Indemnity

16.-�(1) The Harbour Authority shall be responsible for and make good to the PLA all financial costs or losses not otherwise provided for in this Schedule which may reasonably be incurred or suffered by the PLA by reason of-�

(a)the construction or operation of the authorised works or the failure of the authorised works;

(b)anything done in relation to a mooring or buoy pursuant to paragraph 8; or;

(c)any act or omission of the Harbour Authority, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works;

and the Harbour Authority shall indemnify the PLA from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.

(2) The fact that any act or thing may have been done-�

(a)by the PLA on behalf of the Harbour Authority; or

(b)by the Harbour Authority, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the PLA, or in a manner approved by the PLA, or under its supervision or the supervision of its duly authorised representative;

shall not (if it was done or required without negligence on the part of the PLA or its duly authorised representative, employee, contractor or agent) excuse the Harbour Authority from liability under the provisions of this paragraph.

(3) The PLA shall give the Harbour Authority reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the Harbour Authority.

Dedication of land for conservation, etc.

17.-�(1) Before dedicating or designating any land under article 47 (conservation), the Harbour Authority shall provide the PLA with a plan of the land and full particulars of the use to which it is intended to be put, and shall provide such further particulars as the PLA may, within 21 days from the day on which the plan is submitted under this paragraph, reasonably require.

(2) The Harbour Authority shall not dedicate or designate any land under article 47 (conservation) except in accordance with such plans and particulars as may be approved by the PLA or determined under paragraph 24.

(3) Any approval of the PLA required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable requirements as the PLA may make for the protection of-�

(a)traffic in, or the flow or regime of, the river;

(b)the use of its operational land or the river for the purpose of performing its functions; or

(c)the performance of any of its functions connected with environmental protection;

including conditions as to the proposed use of the land, its management and any environmental mitigation.

(4) Any such approval shall be deemed to have been refused if it is neither given nor refused within 35 days of the day on which the plans are submitted under sub-paragraph (1).

Statutory functions

18.-�(1) Subject to article 4(3) and this paragraph, any function of the Harbour Authority or any officer of the Harbour Authority, whether conferred by or under this Order or any other enactment, shall be subject to-�

(a)any enactment relating to the PLA;

(b)any byelaw, direction or other requirement made by the PLA or its Harbour Master under any enactment; and

(c)any other exercise by the PLA or its Harbour Master of any function conferred by or under any enactment.

(2) The Harbour Authority or Dockmaster shall not take any action in the river outside the area of jurisdiction under sections 57, 65 and 69 of the 1847 Act as incorporated by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) except with the consent of the Harbour Master, which shall not be unreasonably withheld.

(3) The Dockmaster shall not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847), if to do so would conflict with a special direction given to the same vessel by the Harbour Master.

(4) That part of the port premises not in the river shall not be -�port premises-� for the purposes of the 1968 Act.

(5) The PLA shall consult the Harbour Authority before making any byelaw under the 1968 Act which directly applies to or which could directly affect the construction, operation or maintenance of London Gateway Port or the port premises.

(6) The PLA or the Harbour Master (as appropriate) shall consult the Harbour Authority before giving any general direction under the 1968 Act which directly affects the construction, operation or maintenance of London Gateway Port or the port premises.

Vesting of reclaimed river bed

19.-�(1) Section 72 of the 1968 Act (vesting of embanked land) shall apply so as-�

(a)to vest in the Harbour Authority any reclaimed land created by the construction of Works Nos. 11 and 12 (Sheets Nos. 216 and 217 of the deposited plans) on the completion by the PLA of a separate certificate relating to that land; and

(b)to enable the PLA to issue one or more certificates, each relating to part only of the reclaimed land so created.

(2) The PLA shall not be required to issue a certificate under sub-paragraph (1) in relation to any part of Works Nos. 11 and 12 (Sheets Nos. 216 and 217 of the deposited plans) unless-�

(a)the average level of the reclaimed land the subject of the certificate is not less than 1 metre above mean high water level and no part of that land is below mean high water level;

(b)the reclaimed land the subject of the certificate forms an identifiable section of the reclamation works by comprising reclaimed land surrounded by a bund which is connected to the river bank; and

(c)the compensation payable in respect of that land in accordance with paragraph 20 has been paid to the PLA.

Compensation for river bed

20. Notwithstanding paragraph 3, and unless otherwise agreed in writing between the Harbour Authority and the PLA, compensation shall be payable to the PLA in respect of any tidal work (including any reclamation) and any rights required in connection with such tidal work as if the Harbour Authority had been required-�

(a)to obtain a licence for the work under section 66 (Licensing of works) of the 1968 Act; and

(b)to pay consideration for the licence determined in accordance with the provisions of section 67 (Consideration for licence) of that Act;

and the PLA-�s costs incurred in connection with the determination of such compensation shall be recoverable from the Harbour Authority.

Maintenance dredging

21. For the avoidance of doubt, section 73 of the 1968 Act shall apply to any maintenance dredging carried out by the Harbour Authority.

Consideration for dredged material

22.-�(1) The Harbour Authority shall pay to the PLA for material dredged by the Harbour Authority under this Order from so much of the river as is vested in the PLA consideration calculated at a rate agreed between them and otherwise in accordance with this paragraph.

(2) The Harbour Authority shall pay consideration under sub-paragraph (1) as respects material dredged in the course of the construction of the works authorised by article 13 (power to dredge) based on the quantity of such material that-�

(a)is not used for the construction of-�

(i)the authorised works;

(ii)any other works related to the construction of London Gateway Port; or

(iii)the related development; and

(b)is sold by the Harbour Authority or by any other person exercising any powers under this Order.

Removal of wrecks and obstructions, etc.

23.-�(1) Before exercising any power under section 252 of the Merchant Shipping Act 1995(40) or under section 56 of the 1847 Act, the Dockmaster shall notify the Harbour Master.

(2) The Dockmaster shall comply with any reasonable instructions that the Harbour Master may give in relation to the exercise of the powers referred to in sub-paragraph (1).

Disputes

24. Any dispute arising between the Harbour Authority and the PLA under this Schedule shall be determined by arbitration as provided in article 66 (arbitration).

Article 62

SCHEDULE 9FOR THE PROTECTION OF THE TRINITY HOUSE LIGHTHOUSE SERVICE

General

1. The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and the Trinity House, have effect for the protection of the Trinity House, and the users of the river.

2. Nothing in this Order shall prejudice or derogate from any of the powers, jurisdiction, authority, rights, duties or privileges of the Trinity House.

Indemnity

3.-�(1) The Harbour Authority shall be responsible for and reimburse the Trinity House for all costs, charges, damages, expenses and losses of whatsoever nature reasonably incurred by the Trinity House-�

(a)by reason of the temporary repositioning of buoys in connection with the carrying out of works authorised by article 13 (power to dredge); or

(b)by reason of any act or omission of the Harbour Authority, its employees, contractors or agents or others whilst engaged upon the construction or maintenance of the works authorised by article 13 (power to dredge);

and the Harbour Authority shall indemnify the Trinity House from and against all liabilities, actions, claims and demands arising out of or in connection with the works authorised by article 10 (power to construct, etc., works) provided that the claims and demands do not arise through the negligence of the Trinity House, its employees, agents or servants.

Article 63

SCHEDULE 10FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

General

1.-�(1) The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and the Environment Agency (-�the Agency-�), have effect for the protection of the Agency.

(2) Where any consent, approval or agreement is required to be given by the Agency pursuant to this Schedule, it shall not be unreasonably withheld or delayed.

Definitions applying to this Schedule

2. In this Schedule-�

-�accumulation-� means any accumulation of silt or other material causing damage or a reasonable expectation of damage to flood defences managed by the Agency;

-�construction-� includes maintenance and -�construct-� and -�constructed-� shall be construed accordingly;

-�damage-� includes scouring, erosion and environmental damage and -�damaged-� shall be construed accordingly;

-�drainage work-� means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure or any appliance constructed or used for land drainage, flood defence or tidal monitoring;

-�erosion-� means any erosion of the bed or shore of the sea or of the bed or banks of any river;

-�excluded work-� means a tidal work as defined in article 2(1) and any work referred to in article 13 (power to dredge);

-�the fishery-� means any waters containing fish and fish in, or migrating to or from, such waters and spawn, habitat or food of such fish;

-�plans-� includes sections, drawings, specifications and method statements;

-�specified work-� means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to-�

-�watercourse-� includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer.

Tidal works

3.-�(1) At the same time as submitting any plans and sections for any tidal work or operation to the PLA in accordance with paragraph 2 of Schedule 8, the Harbour Authority shall provide such plans and sections to the Agency and at the same time as the Harbour Authority provides any further particulars to the PLA pursuant to paragraph 2 of Schedule 8, the Harbour Authority shall provide such further particulars to the Agency.

(2) Within 21 days of the later of-�

(a)the receipt of such plans and sections; or

(b)the receipt of any such further particulars,

the Agency shall provide the PLA with its opinion on the plans and sections and further particulars (if any).

Pre-conditions to commencing specified work

4.-�(1) Before beginning to construct any specified work other than an excluded work, the Harbour Authority shall submit to the Agency plans of the specified work and such further particulars available to it as the Agency may reasonably require.

(2) Any specified work other than an excluded work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or settled in accordance with paragraph 13(1).

(3) Any approval of the Agency required under this paragraph-�

(a)shall be deemed to have been given if it is neither given nor refused in writing and with a statement of the grounds for refusal within two months of the submission of plans for approval; and

(b)may be given subject to such reasonable requirements as the Agency may impose for-�

(i)the protection of any drainage work;

(ii)the protection of the fishery;

(iii)the protection of water resources;

(iv)the prevention of flooding;

(v)the prevention of pollution; and

(vi)the discharge of its environmental and recreational statutory duties (so far as may be necessary).

(4) Without prejudice to the generality of sub-paragraphs (1), (2) and (3), the requirements which the Agency may impose under those sub-paragraphs include-�

(a)conditions as to the time and the manner in which any other work or operation is to be carried out; or

(b)conditions requiring the Harbour Authority at its own expense to-�

(i)construct such protective works (-�the protective works-�), whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments and other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary to safeguard any drainage work against damage or to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased by reason of a specified work;

(ii)provide or maintain means of access for the Agency; or

(iii)provide, maintain and operate arrangements for dealing with any pollution incidents which may occur during and as a result of the construction of the specified works.

(5) The Harbour Authority shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain-�

(a)in the examination or approval of plans under this paragraph; or

(b)in the inspection of the construction of the specified works affecting a drainage work or any protective works required by the Agency under this Schedule.

(6) Subject to sub-paragraphs (1) and (2), any specified work other than an excluded work and all protective works, shall be constructed-�

(a)within such period (if any) as the Agency may approve at the time of approval or, upon an application by the Harbour Authority, may approve afterwards;

(b)in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and

(c)to the reasonable satisfaction of the Agency;

and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

(7) The Harbour Authority shall give to the Agency not less than 14 days-� notice in writing of its intention to commence construction of any specified work other than an excluded work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

(8) If any part of a specified work other than an excluded work comprising a structure in, over or under a watercourse is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing require the Harbour Authority at the Harbour Authority-�s own expense to comply with the requirements of this Schedule or, if the Harbour Authority so elects and the Agency consents in writing to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent as the Agency reasonably requires.

(9) Subject to sub-paragraph (10), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (8) is served on the Harbour Authority, it has failed to begin taking steps to comply with the requirements of the notice and thereafter complete them within such reasonable period as may be specified in such notice, the Agency may execute the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the Harbour Authority.

(10) In the event of any dispute as to whether sub-paragraph (8) is properly applicable to any work in respect of which notice has been served under that sub-paragraph or as to the reasonableness of the requirements of such a notice, the Agency shall not, except in a case of emergency, exercise the powers conferred by sub-paragraph (9) until the dispute has been finally determined.

Survey of any drainage work liable to be affected by a specified work

5. Before commencing the construction of a specified work liable to affect a drainage work the Harbour Authority shall procure at its expense, in liaison with and to the reasonable satisfaction of the Agency, a survey of any drainage work liable to be affected by that specified work.

Maintenance by Harbour Authority of drainage works within its jurisdiction

6.-�(1) Subject to sub-paragraph (2), the Harbour Authority shall, from the commencement of the construction of any specified work and except to the extent that any approval given by the Agency under this Schedule permits otherwise, maintain in good repair and condition and free from obstruction any drainage work which is situated within the jurisdiction of the Harbour Authority or which it otherwise has control of or is in occupation of for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers of the Order or is already in existence.

(2) The obligation imposed on the Harbour Authority under sub-paragraph (1) does not apply where the Agency or another person is liable to maintain any such drainage work and is not precluded by the exercise of the powers of the Order from doing so.

(3) If any drainage work referred to in sub-paragraph (1) is not maintained in good repair and free from obstruction the Agency may by notice in writing require the Harbour Authority to repair and restore the drainage work, or any part thereof, or (if the Harbour Authority so elects and the Agency in writing consents to remove the specified work and restore the site (including sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.

(4) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of a specified work is served under sub-paragraph (3) on the Harbour Authority, the Harbour Authority has failed to begin taking steps to comply with the reasonable requirements of the notice and thereafter completed them within such reasonable period as may be specified in the notice, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the Harbour Authority.

(5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (3), the Agency shall not, except in a case of emergency, exercise the powers of sub-paragraph (4) until the dispute has been finally determined.

Impairment of efficiency of drainage work for flood defence

7. If, by reason of the construction of a specified work or of the failure of any specified work or of the Harbour Authority to maintain it, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage shall be made good by the Harbour Authority to the reasonable satisfaction of the Agency and if the Harbour Authority fails to do so within such reasonable period as the Agency may require by notice in writing to the Harbour Authority, the Agency may make good the same and recover from the Harbour Authority the expense reasonably incurred by it in so doing.

Damage to flood defences managed by the Agency

8.-�(1) If, during the construction of a specified work or within 10 years after the completion of a specified work, there is caused or created an accumulation or erosion or alteration of the tidal flow or littoral drift which causes damage, or reasonable expectation of damage, to flood defences, the Harbour Authority shall, if it is proven to have caused the damage or reasonable expectation of damage, remedy to the extent of its causation such accumulation, erosion, alteration of tidal flow or littoral drift to the extent and commensurate with the damage it is proven to have caused, in the manner specified in sub-paragraph (4) and, if it refuses or fails so to do, the Agency may itself cause work to be done and may recover the reasonable cost of such work from the Harbour Authority.

(2) Should any accumulation or erosion or alteration of the tidal flow or littoral drift which causes damage or reasonable expectation of damage, arise within the said period of 10 years and be remedied in accordance with sub-paragraph (1), any recurrence of such accumulation or erosion or alteration of the tidal flow or littoral drift proven to be caused by the specified works shall from time to time be so remedied by the Harbour Authority during the said period of 10 years and at any time thereafter, save that the Harbour Authority-�s obligation under this paragraph shall cease in the event that following the remedying of any accumulation or erosion or alteration of the tidal flow or littoral drift a period of 10 years elapses without any further accumulation or erosion or alteration of the tidal flow or littoral drift.

(3) In sub-paragraphs (1) and (2), -�damage-� means, in the context of damage to flood defence capability or operation, any damage affecting the following-�

(a)the efficacy of flood defences;

(b)the bed or banks of the river; or

(c)the structure or operation of any outfall, flood or sea defences or any jetty or other structure under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991(41).

(4) For the purposes of sub-paragraphs (1) and (2)-�

(a)in the case of an accumulation, the remedy shall be its removal or such other protective works or measures as may be reasonably required by the Agency; and

(b)in the case of erosion or alteration of tidal flow or littoral drift, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be reasonably required by the Agency.

(5) In the event that surveys, inspections, tests or sampling establish that such accumulation or erosion or alteration of tidal flow or littoral drift would have been caused in any event by factors other than the construction of a specified work, the Harbour Authority shall be liable to remedy such accumulation or erosion or alteration of tidal flow or littoral drift only to the extent that the same is attributable to a specified work.

Protection of the fishery

9.-�(1) The Harbour Authority shall take all such measures as may be reasonably practicable to prevent any significantly detrimental interruption of the free passage of fish in the fishery during the construction of any specified work.

(2) If by reason of-�

(a)the construction of a specified work; or

(b)the failure of any such work;

damage to the fishery is caused or the Agency has reason to expect that such damage may be caused, the Agency may serve written notice on the Harbour Authority requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage to a fishery, the Harbour Authority fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from the Harbour Authority the expense reasonably incurred by it in doing so.

(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the Harbour Authority the reasonable cost of so doing provided that written notice specifying those steps is served on the Harbour Authority as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

Indemnity as to costs and expenses

10.-�(1) The Harbour Authority shall indemnify the Agency in respect of all reasonable and proper costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain in the inspection, for the purposes of compliance with this Schedule, of the construction of the specified works or protective works required by the Agency under this Schedule.

(2) The Harbour Authority shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss, which may be made or taken against, or recovered from or incurred by the Agency by reason of-�

(a)any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

(b)any damage to the fishery in so far as it has not already been compensated;

(c)any raising or lowering of the water table in land adjoining the authorised works or any sewers, drains and watercourses;

(d)any flooding or increased flooding of land adjoining the authorised works; or

(e)inadequate water quality in any watercourse or other surface waters or in any groundwater;

which is caused by the construction of any of the specified works or any act or omission of the Harbour Authority, its contractors, agents or employees whilst engaged upon the specified works.

(3) The Agency shall give to the Harbour Authority reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand shall be made without the consent of the Harbour Authority which shall not be unreasonably withheld and if such consent is not given by the Harbour Authority, the Agency shall diligently defend such claim or demand.

11. The fact that any work or thing has been executed or done by the Harbour Authority in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the Harbour Authority of any liability under paragraph 10.

Approvals deemed and not deemed

12.-�(1) For the purposes of section 109 of the Water Resources Act 1991 (structures in, over or under watercourses) as applying to the construction of any specified work, any approval given or deemed to be given by the Agency under this Schedule with respect to such construction shall be deemed also to constitute a consent under that section.

(2) Section 23 of the Land Drainage Act 1991(42) (prohibition on obstructions, etc. in watercourses) and any byelaws made under that Act or under the Water Resources Act 1991 shall not apply to anything done under or in pursuance of this Order.

(3) Subject to sub-paragraphs (1) and (2) and except as otherwise provided by this Schedule, nothing in this Order shall prejudice or affect in their application to the Agency the powers, rights, jurisdictions and obligations conferred, arising or imposed under the Land Drainage Act 1991, the Salmon and Freshwater Fisheries Act 1975(43), the Water Resources Act 1991 or any other enactment, byelaw or regulation relating to the Agency.

Arbitration in respect of differences arising under this Schedule between the parties

13.-�(1) Provided the Harbour Authority and the Agency agree, any difference arising between the Harbour Authority and the Agency under this Schedule (other than a difference as to its meaning or construction) shall be referred to and settled by arbitration in the manner provided by article 66 (arbitration) but where the Harbour Authority and the Agency do not agree, any difference shall be determined by the Secretary of State for Transport and the Secretary of State for Environment, Food and Rural Affairs, acting jointly.

(2) In the case of a conflict between any approval or consent given by the Agency pursuant to this Schedule and any condition or restriction imposed on any approval by the Secretary of State under article 16 (tidal works not to be constructed without approval of the Secretary of State), the terms of the approval of the Secretary of State shall prevail.

Article 64

SCHEDULE 11FOR THE PROTECTION OF NATIONAL GRID GAS PLC AND OTHER STATUTORY UNDERTAKERS

Apparatus of statutory undertakers, etc., on land acquired

1.-�(1) Subject to the following provisions of this paragraph, sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers, etc. and power of statutory undertakers, etc. to remove or re-site apparatus) shall apply in relation to any land acquired under this Order, or which is held by the Harbour Authority and is appropriated or used (or about to be used) by it for the purposes of the Order or purposes connected therewith, and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

(3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Harbour Authority compensation in respect of expenditure reasonably incurred by him, 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.

(4) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 or Part 3 of the 1991 Act applies.

(5) In this paragraph-�

-�public communications provider-� has the same meaning as in section 151(1) of the Communications Act 2003(44); and

-�public utility undertakers-� has the same meaning as in the 1980 Act.

Protection for National Grid Gas plc

2.-�(1) For the protection of the undertaker referred to in this Schedule the following provisions shall, unless otherwise agreed in writing between the Harbour Authority and the undertaker, have effect.

(2) In the remaining provisions of this Schedule-�

-�alternative apparatus-� means alternative apparatus adequate to enable the undertaker to fulfil its functions in a manner not less efficient than previously;

-�apparatus-� means any mains, pipes or other apparatus belonging to or maintained by the undertaker for the purposes of gas supply (not being apparatus in respect of which the relations between the Harbour Authority and the undertaker are regulated by the provisions of Part 3 of the 1991 Act) and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

-�in-� in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land;

-�plan-� includes method statements;

-�specified work-� means any of the authorised works which will or may be situated over, or within 15 metres measured in any direction of, or may in any way adversely affect any apparatus the removal of which has not been required under paragraph 3; and

-�the undertaker-� means National Grid Gas plc, whose registered office is 1-3 Strand, London WC2N 5EH.

3.-�(1) If, in the exercise of any of its powers granted under this Order, the Harbour Authority serves notice on the undertaker that it intends to develop land affecting the apparatus of the undertaker, that apparatus shall not be removed under this Schedule and any right of the undertaker to use, maintain, repair, renew or inspect that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.

(2) If, for the purpose of executing any authorised works in, on or under any land, the Harbour Authority requires the protection, diversion, relocation or removal of any apparatus placed in that land, the Harbour Authority shall give to the undertaker 56 days-� written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers granted under this Order, the undertaker reasonably needs to remove any of its apparatus) the Harbour Authority shall, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the Harbour Authority where the Harbour Authority so directs and thereafter for the use, maintenance, repair, renewal and inspection of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the Harbour Authority, or the Harbour Authority is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker shall, on receipt of a written notice to that effect from the Harbour Authority, use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Sub-paragraph (3) does not require the undertaker to exercise any power to acquire compulsorily any land or right in the land unless the Harbour Authority has agreed to be liable for the costs of the exercise of the power, and if the Harbour Authority does so agree, it may act as the undertaker-�s agent in the exercise of the power.

(5) Any alternative apparatus to be constructed in land of the Harbour Authority under this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker and the Harbour Authority or in default of agreement settled by arbitration in accordance with article 66 (arbitration).

(6) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 66 (arbitration), and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by the Harbour Authority to be removed under the provisions of this Schedule.

(7) Notwithstanding anything in sub-paragraphs (2) and (6), if the Harbour Authority gives notice in writing to the undertaker that the Harbour Authority desires itself to execute any part of the work necessary in connection with the construction of alternative apparatus, or the removal of the apparatus required to be removed, or the protection of apparatus, that work, in lieu of being executed by the undertaker, shall be executed by the Harbour Authority with the prior written consent of the undertaker (which shall not be unreasonably withheld but which may be subject to any such conditions as are reasonable and proper) in accordance with plans and in a position agreed between the undertaker and the Harbour Authority or, in default of agreement, settled by arbitration in accordance with article 66 (arbitration), with all reasonable dispatch under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(8) The Harbour Authority must agree the programme for diversion of the apparatus with the undertaker (who must act reasonably) to ensure that the undertaker can fulfil its operational requirements.

4.-�(1) Where, in accordance with the provisions of this Schedule, the Harbour Authority affords to the undertaker facilities and rights for the construction, and maintenance, in land of the Harbour Authority of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the Harbour Authority and the undertaker or in default of agreement settled, subject to sub-paragraphs (2) and (3), by arbitration in accordance with article 66 (arbitration).

(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in any property of the Harbour Authority, the arbitrator shall-�

(a)give effect to all reasonable requirements of the Harbour Authority for ensuring the safe and efficient construction and operation of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the Harbour Authority;

(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus for which the alternative apparatus is to be substituted and have regard to the undertaker-�s ability to fulfil its service obligations; and

(c)enable all or part of such development as is authorised by this Order (and its subsidiary consents, approvals, permissions and authorities as the case may be) to go ahead without undue delay or unreasonable cost.

(3) If the facilities and rights to be afforded by the Harbour Authority in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by the Harbour Authority to the undertaker as appears to him to be reasonable having regard to all the circumstances of the particular case.

5.-�(1) Not less than 56 days before commencing the construction or maintenance of any specified work the Harbour Authority shall submit to the undertaker a plan, section and description of the works to be executed.

(2) The Harbour Authority shall not commence the construction or maintenance of any specified work until the undertaker has given written approval of the plan, section and description so submitted.

(3) Any approval of the undertaker required under sub-paragraph (2)-�

(a)may be given subject to reasonable conditions for the alteration or otherwise for the protection of the apparatus, or for securing access to the apparatus, and the undertaker shall be entitled by its officer to watch and inspect the execution of those works;

(b)shall not be unreasonably withheld; and

(c)shall be deemed to have been given if it is neither given nor refused within 28 days of the submission of plans for approval.

(4) If the undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the Harbour Authority, reasonably requires the removal of any apparatus and gives written notice to the Harbour Authority of that requirement, the foregoing provisions of this Schedule shall apply as if the removal of the apparatus had been required by the Harbour Authority under paragraph 3.

(5) Nothing in this paragraph shall preclude the Harbour Authority from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, section and description in lieu of the plan, section and description previously submitted, following which the provisions of this paragraph shall apply to and in respect of the new plan, section and description.

(6) The Harbour Authority shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker as much prior notice as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable afterwards and shall comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

6.-�(1) Subject to the following provisions of this paragraph, the Harbour Authority shall repay to the undertaker the reasonable and evidenced expenses incurred by the undertaker in, or in connection with-�

(a)the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any specified works; and

(b)the provision of any superintendence and consultations and approvals referred to in paragraph 5.

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated after removal.

(3) If in pursuance of the provisions of this Schedule-�

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions except where this has been solely due to using the nearest currently available type on the open market or where it is required by law; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was;

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the Harbour Authority or, in default of agreement, is not determined by arbitration to be necessary, then, if such placing involves cost in the construction of works under this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the undertaker by virtue of sub-paragraph (1), shall be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph (3)-�

(a)an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a main or pipe is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from sub-paragraph (3) would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

7.-�(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works as are referred to in paragraph 3(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the undertaker the Harbour Authority shall-�

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

(b)compensate the undertaker for all valid claims, demands, proceedings, costs, damages, losses and expenses which may be made or taken against or recovered from or incurred by the undertaker;

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (1) shall impose any liability on the Harbour Authority with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, employees, servants, contractors, agents or others acting through it.

(3) The undertaker shall give the Harbour Authority reasonable notice of and full and detailed evidence of any such claim or demand and no settlement or compromise shall be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Article 28

SCHEDULE 12LAND WHICH MAY BE ACQUIRED COMPULSORILY

EXPLANATORY NOTE

(This note is not part of the Order)

This Order authorises the construction and use of a new port at Shell Haven, Stanford-le-Hope, Thurrock in the County of Essex.

This Order also establishes a new Harbour Authority for the port.

A copy of the deposited plans and the deposited sections and the relevant charts mentioned in this Order may be inspected free of charge during working hours at the offices of London Gateway Port Limited at The Manorway, Stanford-le-Hope, Essex, SS17 9PD.