SCHEDULES

Article 47

SCHEDULE 15PROTECTIVE PROVISIONS

PART 1FOR THE PROTECTION OF ELECTRICITY AND GAS UNDERTAKERS

Application

1.  For the protection of the affected undertakers referred to in this Part of this Schedule (save for Eastern Power Networks Plc which is protected by Part 2 of this Schedule and Cadent Gas Limited which is protected by Part 3 of this Schedule) the following provisions must, unless otherwise agreed in writing between the undertaker and the affected undertaker concerned, have effect.

2.  In this Part of this Schedule—

“affected undertaker” means—

for the area of the authorised development but, for the avoidance of doubt, does not include Eastern Power Networks Plc and Cadent Gas Limited which have the benefit of Part 2 and Part 3 of this Schedule respectively, and in relation to any apparatus, means the party to whom it belongs or by whom it is maintained;

“alternative apparatus” means alternative apparatus adequate to enable the affected undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means—

“functions” includes power and duties; and

“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.

Precedence of the 1991 Act in respect of apparatus in the streets

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Removal of apparatus

4.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of an affected undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the affected undertaker in question.

(2) If, for the purposes of executing any works in, on or under any land purchased, held or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question 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 conferred by this Order) an affected undertaker reasonably needs to remove any of its apparatus the undertaker must, subject to sub-paragraph (3), afford to the affected undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be construed elsewhere than in other land of the undertaker, or the undertaker 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 affected undertake must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 52 (arbitration).

(5) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 52 (arbitration) and after the grant to the affected undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertaker.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

5.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected undertaker facilities and rights for the construction and maintenance in land of the undertaker or alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the affected undertaker in question or in default of agreement settled by arbitration in accordance with article 52 (arbitration).

(2) If the facilities and rights to be afforded by the undertaker 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 affected undertaker in question then 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 must make such provision for the payment of compensation by the undertaker to that affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstance of the particular case.

Retained apparatus

6.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 4(2) of this Part of this Schedule, the undertaker must submit to the affected undertaker in question a plan of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the affected undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the affected undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by an affected undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If an affected undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 5 of this Part of this Schedule apply as if the removal of the apparatus had been required by the undertaker under paragraph 4(2) of this Part of this Schedule.

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the affected undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

Expenses and costs

7.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected undertaker in, or in connection with, 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 such works as are referred to in paragraph 4(2) of this Part of this Schedule.

(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater quality or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimension; 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 the apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 52 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of 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 affected undertaker in question by virtue of sub-paragraph (1) must 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 is not to be treated as a placing of apparatus of great dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it had also been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph would be payable to an affected undertaker in respect of works by virtue of sub-paragraph (1) must, 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 affected 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.

Compensation

8.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5, 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 an affected undertaker, or if there is any interruption in any service provided, or in the supply of any good, by any affected undertaker, the undertaker must—

(a)bear and pay the costs reasonably incurred by that affected undertaker in making good such damage or restoring the supply; and

(b)make reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected undertaker,

by reason or in consequence of any such damage or interruption.

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

(3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may 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.

PART 2FOR THE PROTECTION OF EASTERN POWER NETWORKS PLC

Application

9.  For the protection of Eastern Power, the following provisions have effect, unless otherwise agreed in writing between the undertaker and Eastern Power.

Interpretation

10.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable Eastern Power to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means electric lines or electrical plant (as defined in the 1989 Act) belonging to or maintained by Eastern Power and which for the avoidance of doubt includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

“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; and

“Eastern Power” means Eastern Power Networks Plc (company registration number 02366906) registered at Newington House, 237 Southwark Bridge Road, London, SE1 6NP.

On-street apparatus

11.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Eastern Power are regulated by the provisions of Part 3 of the 1991 Act.

Temporary closure of streets

12.  Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 12 (temporary stopping up of streets), Eastern Power is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Acquisition of land

13.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

14.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that Eastern Power’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Eastern Power to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of Eastern Power in accordance with sub-paragraphs (2) to (7).

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Eastern Power 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 conferred by this Order Eastern Power reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Eastern Power the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker 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, Eastern Power must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Eastern Power and the undertaker or in default of agreement settled by arbitration in accordance with article 52 (arbitration).

(5) Eastern Power must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 52 (arbitration), and after the grant to Eastern Power of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to Eastern Power in question that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by Eastern Power, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Eastern Power.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

15.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Eastern Power facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Eastern Power or in default of agreement settled by arbitration in accordance with article 52 (arbitration).

(2) If the facilities and rights to be afforded by the undertaker 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 Eastern Power 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 must make such provision for the payment of compensation by the undertaker to Eastern Power as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

16.—(1) Not less than twenty-eight days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 14(2) of this Part of this Schedule, the undertaker must submit to Eastern Power a plan, section and description of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (4) by Eastern Power for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Eastern Power is entitled to watch and inspect the execution of those works.

(3) If Eastern Power fails to respond to a plan, section and description submitted under sub-paragraph (1) within 42 days of its submission, the undertaker may send a written reminder to Eastern Power, and if Eastern Power has neither given nor refused its approval within 14 days of the issue of such reminder, such approval will be deemed to have been given.

(4) Any requirements made by Eastern Power under sub-paragraph (2) must be made within the period referred to in sub-paragraph (3).

(5) If Eastern Power in accordance with sub-paragraph (4) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 9 to 15 of this Part of this Schedule apply as if the removal of the apparatus had been required by the undertaker under paragraph 14(2) of this Part of this Schedule.

(6) Nothing in this paragraph 16 precludes the undertaker from submitting at any time or from time to time, but in no case less than 15 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph 16 apply to and in respect of the new plan, section and description.

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

Expenses

17.—(1) Subject to the following provisions of this paragraph 17, the undertaker must repay to Eastern Power the reasonable expenses incurred by Eastern Power in, or in connection with, 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 such works as are referred to in paragraph 14(2) of this Part of this Schedule.

(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this Part 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; 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 undertaker or, in default of agreement, is not determined by arbitration in accordance with article 52 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of 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 Eastern Power by virtue of sub-paragraph (1) is to 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 is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 14(2) of this Part of this Schedule; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph (5) would be payable to Eastern Power in respect of works by virtue of sub-paragraph (1), 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 Eastern Power any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.

Indemnity

18.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 14(2) of this Part of this Schedule, 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 Eastern Power, or there is any interruption in any service provided, or in the supply of any goods, by Eastern Power, the undertaker must—

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

(b)make reasonable compensation to Eastern Power for any other expenses, loss, damages, penalty or costs incurred by Eastern Power,

by reason or in consequence of any such damage or interruption.

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

(3) Eastern Power must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

PART 3FOR THE PROTECTION OF CADENT GAS LIMITED AS GAS UNDERTAKER

Application

19.  For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect.

Interpretation

20.  In this Part of this Schedule, unless context requires otherwise, the following terms have the following meanings—

“acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and “A3” if the rating is assigned by Moody’s Investors Services Inc.;

“acceptable insurance” means a third party liability insurance effected and maintained by the undertaker to a level of not less than £50,000,000 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance must be maintained for the construction period of the authorised works which constitute specified works and arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the same requirements as an “acceptable credit provider”, such policy must include (but without limitation)—

“acceptable security” means either—

“alternative apparatus” means appropriate alternative apparatus to the satisfaction of Cadent to enable Cadent to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections (including transformed rectifiers and any associated groundbeds or cables), cables, marker posts, block valves, hydrogen above ground installations or other apparatus belonging to or maintained by Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“authorised works” has the same meaning as is given to the term “authorised development” in article 2 (interpretation) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

“Cadent” means Cadent Gas Limited (Company Number 10080864) whose registered office is situated at Pilot Way, Ansty, Coventry, England, CV7 9JU and any successor in title or assign and/or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

“Cadent’s undertaking” means the rights, duties and obligations of Cadent Gas Limited as a public gas transporter within the meaning of Section 7 of the Gas Act 1986(2);

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary and/or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, will require the undertaker to submit for Cadent’s approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;

“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Cadent including retain, lay, construct, inspect, maintain, protect, use, access, enlarge, replace, renew, remove, decommission or render unusable or remove the apparatus and the definition of “maintain” in article 2 does not apply to this Part of this Schedule;

“parent company” means a parent company of the undertaker acceptable to Cadent and which will have been approved by Cadent acting reasonably;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“rights” includes rights and restrictive covenants, and in relation to decommissioned apparatus the surrender of rights, release of liabilities and transfer of decommissioned apparatus;

“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

On street apparatus

21.—(1) Except for paragraphs 22 (Apparatus of Cadent in stopped up streets), 25 (Removal of apparatus) in so far as sub-paragraph 21(2) of this Part of this Schedule applies, paragraph 26 (Facilities and rights for alternative apparatus) in so far as sub-paragraph 21(2) of this Part of this Schedule applies, 27 (Retained apparatus: protection of Cadent), 28 (Expenses) and 29 (Indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of Cadent, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 of the 1991 Act.

(2) Notwithstanding sub-paragraph (1), paragraphs 25 and 26 of this Part of this Schedule apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within an existing adopted public highway.

(3) Notwithstanding article 11 (power to alter layout, etc, of streets) or any other powers in the Order generally, section 85 (sharing of cost of necessary measures) of the 1991 Act in relation to cost sharing and the regulations made thereunder will not apply in relation to any diversion of apparatus of Cadent under the 1991 Act.

Apparatus of Cadent in stopped up streets

22.  Notwithstanding the temporary stopping up or diversion of any street under the powers of article 12 (temporary stopping up of streets), Cadent will be at liberty at all times to take all necessary access across any such stopped up street and/or to execute and do all such works and things in, upon or under any such street as it would have been entitled to do immediately before such temporary stopping up or diversion in respect of any apparatus which at the time of the stopping up or diversion was in that street.

Protective works to buildings

23.—(1) The undertaker, in the case of the powers conferred by article 20 (protective works to buildings and structures), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of Cadent or any interruption in the supply of gas by Cadent, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and subject to sub-paragraph (2), will—

(a)pay compensation to Cadent for any loss sustained by it; and

(b)indemnify Cadent against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by Cadent, by reason of any such damage or interruption.

(2) Nothing in this paragraph 23 imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of Cadent or its contractors or workmen; and Cadent will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof will be made by Cadent, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Acquisition of land

24.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of Cadent otherwise than by agreement.

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between Cadent and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement and/or other legal or land interest of Cadent and/or affects the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent and variations upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure and/or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and/or other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Schedule will prevail.

(4) Any agreement or consent granted by Cadent under paragraph 27 of this Part of this Schedule or any other paragraph of this Part of this Schedule, will not be taken to constitute agreement under sub-paragraph (1).

(5) As a condition of an agreement between the parties in sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and/or other interest of Cadent in such decommissioned apparatus and consequently acquire title to such decommissioned apparatus and release Cadent from all liabilities in respect of such de-commissioned apparatus from the date of such surrender.

(6) Where an undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements, and agreements relating to rights or other interests) and the provisions of this paragraph 24 do not apply, the undertaker must—

(a)retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and

(b)(where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.

Removal of apparatus

25.—(1) If, in the exercise of the agreement reached in accordance with paragraph 24 of this Part of this Schedule or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the rights and facilities referred to in sub-paragraph (2) have been provided, to the satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land. it must give to Cadent advance 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 conferred by this Order Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 26(1) of this Part of this Schedule) the necessary facilities and rights—

(a)for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus);

(b)subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus); and

(c)to allow access to that apparatus (including appropriate working areas to reasonably and safely undertake necessary works by Cadent in respect of the apparatus).

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker 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, Cadent may, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, save that this obligation will not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.

(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Cadent and the undertaker.

(5) Cadent must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to Cadent of any such facilities and rights as are referred to in sub-paragraph (2) or (3), have been afforded to Cadent to its satisfaction, then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.

Facilities and rights for alternative apparatus

26.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Cadent facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by Cadent.

(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed (in Cadent’s reasonable opinion) then the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 33 of this Part of this Schedule and the arbitrator will make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstance of the particular case.

Retained apparatus: protection of Cadent

27.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to Cadent under sub-paragraph (1) must include a method statement and describe—

(a)the exact position of the works;

(b)the level at which these are proposed to be constructed or renewed;

(c)the manner of their construction or renewal including details of excavation, positioning of plant etc.;

(d)the position of all apparatus;

(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

(f)any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraph (1) applies until Cadent has given written approval of the plan so submitted.

(4) Any approval of Cadent required under sub-paragraph (3)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and

(b)must not be unreasonably withheld or delayed.

(5) In relation to any work to which sub-paragraph (1) applies, Cadent may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works to which this paragraph 27 applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (5), as approved or as amended from time to time by agreement between the undertaker and Cadent and in accordance with all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works.

(7) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph 27, must be carried out to Cadent’s satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required prior to commencement.

(8) If Cadent in accordance with sub-paragraphs (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (1) to (3) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 25(2) of this Part of this Schedule.

(9) Nothing in this paragraph 27 precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the authorised works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph 27 will apply to and in respect of the new plan.

(10) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works and must comply with—

(a)the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and

(b)sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order the undertaker must comply with Cadent’s policies for safe working in proximity to gas apparatus “CD/SP/SSW/22 (Cadent’s policies for safe working in the vicinity of Cadent’s Assets” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker will implement an appropriate ground mitigation scheme save that Cadent retains the right to carry out any further necessary works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 28 of this Part of this Schedule.

Expenses

28.—(1) Subject to the following provisions of this paragraph 28, the undertaker must pay to Cadent within 28 days of demand all charges, costs and expenses reasonably anticipated or incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—

(a)any costs reasonably incurred by or compensation properly paid by Cadent in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—

(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 25(3); and/or

(ii)exercising any compulsory purchase powers in the Order transferred to or benefitting Cadent;

(b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

(c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d)the approval of plans;

(e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(f)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule; and

(g)any watching brief pursuant to paragraph 27(6) of this Part of this Schedule.

(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

(3) If in accordance with the provisions of this Part 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; 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 situated,

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 undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 33 of this Part of this Schedule to be necessary, then, if such placing involves cost in the construction of works under this Part of 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 (3) would be payable to Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

(4) For the purposes of sub-paragraph (3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimension than those of the existing apparatus; and

(b)where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph (5) would be payable to Cadent in respect of works by virtue of sub-paragraph (1) will, 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 Cadent 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.

Indemnity

29.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will—

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

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

(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of Cadent, its officers, servants, contractors or agents; and

(b)any authorised works and/or any other works authorised by this Part of this Schedule carried out by Cadent as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 (benefit of order granting development consent) of the Planning Act 2008 or article 8 (transfer of benefit of Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph (3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 29.

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

(5) The undertaker must not commence construction (and must not permit the commencement of such construction) of the authorised works on any land owned by Cadent or in respect of which Cadent has an easement or wayleave for its apparatus or any other interest or to carry out any works within 15 metres in any direction of Cadent’s apparatus until the following conditions are satisfied—

(a)unless and until Cadent is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has first provided the acceptable security (and provided evidence that it will maintain such acceptable security for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and Cadent has confirmed the same to the undertaker in writing; and

(b)unless and until Cadent is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to Cadent that it will maintain such acceptable insurance for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and Cadent has confirmed the same in writing to the undertaker.

(6) In the event that the undertaker fails to comply with sub-paragraph 29(5) of this Part of this Schedule, nothing in this Part of this Schedule will prevent Cadent from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Enactments and agreements

30.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between Cadent and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

31.—(1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 25(2) of this Part of this Schedule or Cadent makes requirements for the protection or alteration of apparatus under paragraph 27 of this Part of this Schedule, the undertaker must use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its reasonable endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, Cadent’s consent must not be unreasonably withheld or delayed.

Access

32.  If in consequence of the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

33.  Save for differences or disputes arising under sub-paragraphs 25(2), 25(4), 26(1), 28(5) and paragraph 27 of this Part of this Schedule any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 52 (arbitration) and in settling any difference or dispute, the arbitrator must have regard to the requirements of Cadent for ensuring the safety, economic and efficient operation of Cadent’s apparatus.

Notices

34.  The plans submitted to Cadent by the undertaker pursuant to sub-paragraph 27(1) must be sent to Cadent Gas Limited Plant Protection by e-mail to plantprotection@cadentgas.com copied by e-mail to landservices@cadentgas.com and sent to the General Counsel Department at Cadent’s registered office or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker.

PART 4FOR THE PROTECTION OF RAILWAY INTERESTS

35.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 48 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.

36.  In this Part of this Schedule—

“asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form agreed between the undertaker and Network Rail which must accord with the form of basic asset protection agreement already agreed between the undertaker and Network Rail as at the date of this Order;

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act 1993(3);

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

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to Network Rail and—

“regulatory consents” means any consent or approval required under—

by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development; and

“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 5 (maintenance of authorised development) in respect of such works.

37.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a)co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b)use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to the Order.

(3) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

(4) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld or delayed (save that it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion)) but may be given subject to reasonable conditions.

(5) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.

38.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration in accordance with article 52 (arbitration) of this Order.

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed (save that it shall never be unreasonable for Network Rail to delay consent where issues of railway and/or public consent are concerned (with such matters being in Network Rail’s absolute discretion)), and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a 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 then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph 38, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation, de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works) and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.

39.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 38(4) of this Part of this Schedule must, when commenced, be constructed—

(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 38 of this Part of this Schedule;

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

(c)in such manner as to cause as little damage as is possible to railway property; and

(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put in accordance with the indemnity provided at paragraph 48(1) of this Part of this Schedule.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

40.  The undertaker must—

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

(b)supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it.

41.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

42.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of the construction of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 38(1) of this Part of this Schedule, pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which Network Rail may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph 42 and paragraph 43(a) of this Part of this Schedule provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph 42.

43.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 38(3) of this Part of this Schedule or in constructing any protective works under the provisions of paragraph 38(4) of this Part of this Schedule 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 approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons 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 a specified work;

(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 a specified work 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 a specified work.

44.—(1) In this paragraph 44—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are 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 44 applies 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 plans under paragraph 38(1) of this Part of this Schedule for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a)the undertaker must 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 must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 38(1) of this Part of this Schedule) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b)Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

(c)Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (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 must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 38(1) of this Part of this Schedule has effect subject to this sub-paragraph.

(6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing of the authorised development causes EMI then the undertaker must 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 undertaker’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 undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

(b)Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;

(c)Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and

(d)the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph 44 to prevent EMI occurring.

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

(a)Network Rail must allow the undertaker 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 must be carried out and completed by the undertaker in accordance with paragraph 39 of this Part of this Schedule.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 48(1) of this Part of this Schedule applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph 44 (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 43(a) of this Part of this Schedule any modifications to Network Rail’s apparatus under this paragraph 44 shall be deemed to be protective works referred to in that paragraph 43(a).

(11) In relation to any dispute arising under this paragraph 44 the reference in article 52 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.

45.  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 undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property (in the reasonable opinion of the engineer (save that it shall never be unreasonable for Network Rail to delay consent where issues of railway and/or public consent are concerned) (with such matters being in Network Rail’s absolute discretion), the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

46.  The undertaker must 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 has first consulted Network Rail and it must 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.

47.  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 must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

48.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (subject to article 39 (no double recovery)) which may be reasonably incurred by Network Rail—

(a)by reason of the construction, maintenance or operation of a specified work or the failure thereof; or

(b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

(c)by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from a specified work;

(d)in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from a specified work by the undertaker or any person in its employ or of its contractors or others;

(e)in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the specified work,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work 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 undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision will not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must—

(a)give the undertaker reasonable written notice of any such claims or demands;

(b)not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

(c)take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

(3) The sums payable by the undertaker under sub-paragraph (1) will, if relevant, include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) In no circumstances shall the undertaker be liable to Network Rail under this paragraph 48 for any indirect or consequential loss (including, without limitation, loss of profit) howsoever arising, nor for any direct or indirect loss that may have been caused by a specified work or the carrying out of the authorised development more than six years after any specified work or the relevant part of the authorised development has been completed.

(6) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

(7) In this paragraph 48—

“the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); 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.

49.  Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 48 of this Part of this Schedule) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

50.  In the assessment of any sums payable to Network Rail under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

51.  The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a)any railway property shown on the works and land plans and described in the book of reference;

(b)any lands, works or other property held in connection with any such railway property; and

(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

52.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993.

53.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent which includes any railway land, under article 8 (transfer of benefit of Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

(a)the nature of the application to be made;

(b)the extent of the geographical area to which the application relates; and

(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.

54.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 51 (certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail via email or by USB.

PART 5FOR THE PROTECTION OF NATIONAL HIGHWAYS LIMITED

Application etc.,

55.—(1) The provisions of this Part of this Schedule apply for the protection of National Highways and have effect unless otherwise agreed in writing between the undertaker and National Highways.

(2) Except where expressly amended by this Order the operation of the powers and duties of National Highways or the Secretary of State under the 1980 Act, the 1984 Act, the 1991 Act, the Transport Act 2000(4), or Town and Country Planning (General Permitted Development) (England) Order 2015(5) which shall continue to apply in respect of the exercise of all National Highways’ statutory functions.

Interpretation

56.—(1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (2), the latter prevail.

(2) In this Part of this Schedule—

“administration fee” means the fee payable pursuant to the provisions of this Part of this Schedule that represent the general internal costs of National Highways in administering the implementation of the specified work and the requirements of this Part of this Schedule and charged as a flat fee based on the final cost of the specified works;

“as built information” means one electronic copy of the following information—

“the bond sum” means the sum equal to 200% of the cost of the carrying out the specified works (to include all costs plus any commuted sum) or such other sum agreed between the undertaker and National Highways;

“the cash surety” means the sum agreed between the undertaker and National Highways;

“commuted sum” means such sum calculated as provided for in paragraph 69 of this Part of this Schedule to be used to fund the future cost of maintaining the specified works where such works have resulted in new network equipment or improvements to the SRN which require future maintenance;

“condition survey” means a survey of the condition of National Highways structures and assets within the Order limits that may be affected by the specified works;

“contractor” means any contractor or subcontractor appointed by the undertaker to carry out the specified works;

“defects period” means the period from the date of the provisional certificate to the date of the final certificate which shall be no less than 12 months from the date of the provisional certificate;

“detailed design information” means such of the following drawings, specifications and calculations as are relevant to the specified works—

“DBFO contract” means the contract between National Highways and the highway operations and maintenance contractor for the maintenance and operation of parts of the strategic road network which are within the Order Limits or any successor or replacement contract that may be current at the relevant time;

“DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it;

“final certificate” means the certificate relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways pursuant to paragraph 67 of this Part of this Schedule;

“the health and safety file” means the file or other permanent record containing the relevant health and safety information for the authorised development required by the Construction (Design and Management) Regulations 2015(6) (or such updated or revised regulations as may come into force from time to time);

“highway operations and maintenance contractor” means the contractor appointed by National Highways under the DBFO contract;

“nominated persons” means the undertaker’s representatives or the contractor’s representatives on site during the carrying out of the specified works as notified to National Highways from time to time;

“programme of works” means a document setting out the sequence and timetabling of the specified works;

“provisional certificate” means the certificate of provisional completion relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways in accordance with paragraph 63 of this Part of this Schedule when it considers the specified works are substantially complete and may be opened for traffic;

“road safety audit” means an audit carried out in accordance with the road safety audit standard;

“road safety audit standard” means DMRB Standard HD GG119 or any replacement or modification of it;

“road space booking” means road space bookings in accordance with National Highways’ Asset Management Operational Requirements (AMOR) including Network Occupancy Management System (NOMS) used to manage road space bookings and network occupancy;

“Specification for Highways Works” means the specification for highways works forming part of the manual of contract documents for highway works published by National Highways and setting out the requirements and approvals procedures for work, goods or materials used in the construction, improvement or maintenance of the strategic road network;

“specified works” means—

“strategic road network” means any part of the road network including trunk roads, special roads or streets and including any structure on such roads or streets for which National Highways is the highway authority including drainage infrastructure, street furniture, verges and vegetation and all other land, apparatus and rights located in, on, over or under the highway;

“utilities” means any pipes, wires, cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act; and

“winter maintenance” means maintenance of the road surface to deal with snow and ice.

General

57.  The undertaker acknowledges that parts of the works authorised by this Order affect or may affect parts of the strategic road network in respect of which National Highways have appointed the highway operations and maintenance contractor.

58.  References to any standards, manuals, contracts, Regulations and Directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances.

Works outside the Order limits

59.  If the undertaker proposes to carry out works to the strategic road network that are outside of the Order Limits in connection with the authorised development, the undertaker must enter into an agreement with National Highways in respect of the carrying out of those works prior to the commencement of those works. For the avoidance of doubt, the reference to works in this paragraph 59 does not include traffic regulation orders identified on the access and traffic regulation order plans.

Prior approvals and security

60.—(1) The specified works must not commence until in respect of that part of the specified work, save where an item in (a) to (j) is agreed by National Highways and the undertaker as not being relevant to that part of the specified works—

(a)a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised by them or any exceptions are approved by National Highways;

(b)the programme of works has been approved by National Highways;

(c)the detailed design of the specified works comprising of the following details, insofar as considered relevant by National Highways, has been submitted to and approved by National Highways—

(i)the detailed design information, incorporating all recommendations and any exceptions approved by National Highways under sub-paragraph (a);

(ii)details of the proposed road space bookings;

(iii)the identity and qualification of the contractor and nominated persons;

(iv)a process for stakeholder liaison, with key stakeholders to be identified and agreed between National Highways and the undertaker; and

(v)information demonstrating that the walking, cycling and horse riding assessment and review process undertaken by the undertaker in relation to the specified works has been adhered to in accordance with DMRB GG142 - Designing for walking, cycling and horse riding.

(d)a scheme of traffic management has been submitted by the undertaker and approved by National Highways such scheme to be capable of amendment by agreement between the undertaker and National Highways from time to time;

(e)stakeholder liaison has taken place in accordance with the process for such liaison agreed between the undertaker and National Highways under sub-paragraph (c)(iv) above;

(f)National Highways has approved the audit brief and CVs for all road safety audits and exceptions to items raised in accordance with the road safety audit standard;

(g)the undertaker has agreed the estimate of the commuted sum with National Highways;

(h)the scope of all maintenance operations (routine inspections, incident management, reactive and third party damage) to be carried out by the undertaker during the construction of the specified works (which must include winter maintenance) has been agreed in writing by National Highways;

(i)the undertaker has procured to National Highways warranties from the contractor and designer of the specified works in favour of National Highways to include covenants requiring the contractor and designer to exercise all reasonable skill, care and diligence in designing and constructing the specified works, including in the selection of materials, goods, equipment and plant; and

(j)the condition survey and a reasonable regime of monitoring of any National Highways assets or structures that are the subject of the condition survey has been agreed in writing by National Highways.

(2) The undertaker must not exercise—

(a)article 5 (maintenance of authorised development);

(b)article 12 (temporary stopping up of streets);

(c)article 17 (traffic regulation);

(d)article 19 (discharge of water);

(e)article 20 (protective works to buildings and structures);

(f)article 21 (authority to survey and investigate the land);

(g)article 23 (felling or lopping trees and removal of hedgerows);

(h)article 35 (temporary use of land for carrying out the authorised development); or

(i)article 36 (temporary use of land for maintaining the authorised development) of this Order,

over any part of the strategic road network without the consent of National Highways, and National Highways may in connection with any such exercise require the undertaker to provide details of any proposed road space bookings and/or submit a scheme of traffic management for National Highways’ approval.

(3) National Highways must prior to the commencement of the specified works or the exercise of any power referenced in sub-paragraph (2) inform the undertaker of the identity of the person who will act as a point of contact on behalf of National Highways for consideration of the information required under sub-paragraphs (1) or (2).

(4) Any approval of National Highways required under this paragraph 60—

(a)must not be unreasonably withheld;

(b)must be given in writing;

(c)shall be deemed to have been refused if neither given nor refused within 2 months of the receipt of the information for approval or, where further particulars are requested by National Highways within 2 months of receipt of the information to which the request for further particulars relates; and

(d)may be subject to any conditions as National Highways considers necessary.

(5) National Highways must provide the undertaker with a list, which is to be agreed between the parties acting reasonably, of all the structures, assets and pavements to be subject to both a condition survey and reasonable regime of monitoring pursuant to sub-paragraph (1)(j) before the first condition survey is conducted and the reasonable regime of monitoring is implemented.

Construction of the specified works

61.—(1) The undertaker must give National Highways 28 days’ notice in writing of the date on which part of the specified works will start unless otherwise agreed by National Highways.

(2) The undertaker must comply with National Highways’ road space booking procedures prior to and during the carrying out of the specified works and no such specified works for which a road space booking is required shall commence without a road space booking having first been secured from National Highways.

(3) The specified works must be carried out by the undertaker to the satisfaction of National Highways in accordance with—

(a)the relevant detailed design information and programme of works approved pursuant to paragraph 60(1) of this Part of this Schedule or as subsequently varied by agreement between the undertaker and National Highways;

(b)the DMRB, the Manual of Contract Documents for Highway Works, including the Specification for Highway Works, together with all other relevant standards as required by National Highways to include, inter alia; all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016(7) save to the extent that exceptions from those standards apply which have been approved by National Highways; and

(c)all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same and in particular the undertaker, as client, must ensure that all client duties (as defined in the said regulations) are undertaken to the satisfaction of National Highways.

(4) The undertaker must permit and must require the contractor to permit at all reasonable times and upon reasonable notice persons authorised by National Highways (whose identity must have been previously notified to the undertaker by National Highways) to gain access to the specified works for the purposes of inspection and supervision of the specified works.

(5) If any part of the specified works is constructed—

(a)other than in accordance with the requirements of this Part of this Schedule; or

(b)in a way that causes damage to the highway, highway structure or asset or any other land of National Highways,

National Highways may by notice in writing require the undertaker, at the undertaker’s own expense, to comply promptly with the requirements of this Part of this Schedule or remedy any damage notified to the undertaker under this Part of this Schedule, to the satisfaction of National Highways.

(6) If within 28 days on which a notice under sub-paragraph (5) is served on the undertaker (or in the event of there being, in the opinion of National Highways, a danger to road users, within such lesser period as National Highways may stipulate), the undertaker has failed to take the steps required by that notice, National Highways may carry out the steps required of the undertaker and may recover any expenditure incurred by National Highways in so doing, such sum to be payable within 30 days of a written demand, including itemised costs.

(7) Nothing in this Part of this Schedule prevents National Highways from carrying out any work or taking any such action as it reasonably believes to be necessary as a result of or in connection with or the carrying out or maintenance of the authorised development without prior notice to the undertaker in the event of an emergency or to prevent the occurrence of danger to the public and National Highways may recover any expenditure it reasonably incurs in so doing.

(8) In constructing the specified works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway over existing utilities must be constructed to the satisfaction of National Highways.

(9) During the construction of the specified works the undertaker must carry out all maintenance (including winter maintenance) in accordance with the scope of maintenance operations agreed by National Highways pursuant to paragraph 60(1)(h) of this Part of this Schedule and the undertaker must carry out such maintenance at its own cost.

(10) The undertaker must notify National Highways if it fails to complete the specified works in accordance with the agreed programme pursuant to paragraph 60(1)(b) of this Part of this Schedule or suspends the carrying out of any specified work beyond a reasonable period of time and National Highways reserves the right to withdraw any road space booking granted to the undertaker to ensure compliance with its network occupancy requirements.

Payments

62.—(1) The undertaker must pay to National Highways a sum equal to the whole of any costs and expenses which National Highways incurs (including costs and expenses for using internal or external staff) in relation to the specified works and in relation to any approvals sought under this Order, or otherwise incurred under this Part of this Schedule, including—

(a)the checking and approval of the information required under paragraph 60(1) of this Part of this Schedule;

(b)the supervision of the specified works;

(c)the checking and approval of the information required to determine approvals under this Order which are not covered by the administration fee;

(d)all costs in relation to the transfer of any land or grant of rights which may be required for the specified works;

(e)the administration fee;

(f)all legal costs incurred which are not already covered by (a) to (e) above; and

(g)any value added tax which is payable by National Highways in respect of such costs and expenses in (a) to (f) and for which it cannot obtain reinstatement from HM Revenue and Customs,

together comprising the “NH costs”.

(2) The undertaker must pay to National Highways within 30 days of receipt and prior to such costs being incurred the total costs that National Highways believe will be properly and necessarily incurred by National Highways in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the specified works.

(3) National Highways must provide the undertaker with an itemised schedule showing its estimate of the NH costs, including its estimate of the administration fee, prior to the commencement of the specified works and the undertaker must pay to National Highways an amount equal to the estimated sum prior to National Highways incurring any cost and prior to commencing the specified works.

(4) If at any time after the payment referred to in sub-paragraph (3) has become payable, National Highways reasonably believes that the NH costs will exceed the estimated NH costs notified pursuant to sub-paragraph (3) it may give written notice to the undertaker of the amount that it believes the NH costs will exceed the estimate (“the excess”) and the undertaker must pay to National Highways within 30 days of the date of the notice a sum equal to the excess.

(5) National Highways must give the undertaker an itemised final account of NH costs referred to in sub-paragraph (1) within 91 days of the issue of the provisional certificate issued pursuant to paragraph 63(4) of this Part of this Schedule.

(6) Within 30 days of the issue of the final account—

(a)if the final account shows a further sum as due to National Highways the undertaker must pay to National Highways the sum shown due to it;

(b)if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by National Highways, National Highways must refund the difference to the undertaker.

Provisional Certificate

63.—(1) Following any closure or partial closure of any part of the strategic road network for the purposes of carrying out the specified works, National Highways will carry out a site inspection to satisfy itself that the part of the strategic road network is, in its opinion, safe for traffic and the undertaker must comply with any requirements of National Highways prior to reopening of that part of the strategic road network.

(2) As soon as the undertaker considers that the provisional certificate may be properly issued it must apply to National Highways for the provisional certificate.

(3) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable and within 28 days of receipt of the application under sub-paragraph (2) or such other period agreed between the parties, National Highways must—

(a)inspect the specified works; and

(b)provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose.

(4) When—

(a)a stage 3 road safety audit for the specified works has been carried out (where relevant) and all recommendations raised including remedial works have (subject to any exceptions agreed) been approved by National Highways;

(b)the specified works incorporating the approved remedial works under sub-paragraph (4)(a) and any further works notified to the undertaker pursuant to sub-paragraph (3)(b) have been completed to the satisfaction of National Highways;

(c)the as built information has been provided to National Highways; and

(d)the undertaker has paid the commuted sum to National Highways.

National Highways must issue the provisional certificate (not to be unreasonably withheld or delayed).

(5) On the issue of the provisional certificate the bond sum shall be reduced to 20% of the total bond sum save insofar as any claim or claims have been made against the bond before that date in which case National Highways will retain a sufficient sum to ensure it does not have to meet any costs for or arising from the specified works.

(6) The undertaker must submit a stage 4 road safety audits as required by and in line with the timescales stipulated in the road safety audit standard. The undertaker must comply with the findings of the stage 4 road safety audit and must provide updated as-built information to National Highways.

Opening

64.  The undertaker must notify National Highways not less than 14 days in advance of the intended date of opening to the public of part (a) of the specified works and the undertaker must notify National Highways of the actual date part (a) of the specified works will be opened to the public within 14 days of that date.

Final condition survey

65.—(1) The undertaker must, as soon as reasonably practicable after making its application for a provisional certificate pursuant to paragraph 63(2), arrange for the highways structures and assets that were the subject of the condition survey to be re-surveyed and must submit the re-survey to National Highways for its approval. The re-survey will include a renewed geotechnical assessment required by DMRB CD622 or its equivalent if the specified works include any works beneath the strategic road network.

(2) If the re-surveys carried out pursuant to sub-paragraph (1) indicate that any damage has been caused to a structure, asset or pavement, the undertaker must submit a scheme for remedial works in writing to National Highways for its approval in writing and the undertaker must carry out the remedial works at its own cost and in accordance with the scheme submitted.

(3) If the undertaker fails to carry out the remedial work in accordance with the approved scheme, National Highways may carry out the steps required of the undertaker and may recover any expenditure it reasonably incurs in so doing, such agreed sum to be paid within 30 days of receipt of a written and itemised demand.

(4) National Highways may, at its discretion, at the same time as giving its approval to the re-surveys pursuant to sub-paragraph (1) give notice in writing that National Highways will remedy any damage identified in the re-surveys and National Highways may recover any expenditure it reasonably incurs in so doing.

(5) The undertaker must make available to National Highways upon request copies of any survey or inspection reports produced pursuant to any inspection or survey of any of the specified work following its completion that the undertaker may from time to time carry out.

Defects Period

66.—(1) The undertaker must at its own expense remedy any defects in the specified works as are reasonably required by National Highways to be remedied during the defects period. All identified defects must be remedied in accordance with the following timescales—

(a)in respect of matters of urgency, within 24 hours of receiving notification for the same (urgency to be determined at the absolute discretion of National Highways);

(b)in respect of matters which National Highways considers to be serious defects or faults, within 14 days of receiving notification of the same; and

(c)in respect of all other defects notified to the undertaker, within 4 weeks of receiving notification of the same or such other time period as is agreed.

(2) On the issue of the provisional certificate National Highways has responsibility for maintenance of the strategic road network save for any soft landscaping works which must be established and which must thereafter be maintained for a period of 3 years by and at the expense of the undertaker.

Final Certificate

67.—(1) The undertaker must apply to National Highways for the final certificate no sooner than 12 months from the date of the provisional certificate.

(2) Following receipt of the application for the final certificate, National Highways must as soon as reasonably practicable and within 28 days of receipt of the application under sub-paragraph (1) National Highways must—

(a)inspect the specified works; and

(b)provide the undertaker with a written list of any further works required to remedy or make good any defect or damage to the strategic road network or confirmation that no such works are required for this purpose.

(3) The undertaker must carry out such works notified to it pursuant to sub-paragraph (2).

(4) When National Highways is satisfied that any defects or damage arising from defects during the defects period and any defects notified to the undertaker pursuant to sub-paragraph (2) and any remedial works required as a result of the stage 4 road safety audit have been made good to the satisfaction of National Highways, National Highways must issue the final certificate, such certificate not to be unreasonably withheld or delayed, after which the bond shall be released in full.

Security

68.  The specified works must not commence until—

(a)the undertaker procures that the specified works are secured by a bond from a bondsman first approved by National Highways in the agreed form between the undertaker and National Highways, to indemnify National Highways against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of the exercise of the powers under this Order and the specified works under the provisions of this Part of this Schedule provided that the maximum liability of the bond must not exceed the bond sum; and

(b)the undertaker has provided the cash surety which may be utilised by National Highways in the event of the undertaker failing to meet its obligations to make payments under paragraph 62 of this Part of this Schedule or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker under the provisions of this Part of this Schedule.

Commuted sums

69.—(1) National Highways must provide to the undertaker an estimate of the commuted sum, calculated in accordance with FS Guidance S278 Commuted Lump Sum Calculation Method dated 18 January 2010 or any successor guidance, prior to the commencement of the specified works.

(2) The undertaker must pay to National Highways the commuted sum prior to the issue of the provisional certificate.

Insurance

70.  Prior to the commencement of the specified works the undertaker must effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) in respect of any one claim against any legal liability for damage, loss or injury to any property or any person as a direct result of the execution of the specified works or use of the strategic road network by the undertaker.

Indemnity

71.—(1) The undertaker must indemnify National Highways from and against all costs, claims, expenses, damages, losses and liabilities directly suffered by National Highways arising from the construction, maintenance or use of the specified works or exercise of or failure to exercise any power under this Order within 30 days of demand provided that—

(a)National Highways notifies the undertaker upon receipt of any claim; and

(b)National Highways notifies the quantum of the claim to the undertaker in writing.

(2) The indemnity provided by this clause shall not apply in respect of any cost, expense, damage, loss and/or liability which may arise out of or be incidental to any negligent or defective act, default or omission on the part of National Highways, its agents, workmen or employees.

Maintenance of the specified works

72.—(1) The undertaker must, prior to the commencement of any works of maintenance to the specified works, give National Highways 28 days’ notice in writing of the date on which those works will start unless otherwise agreed by National Highways, acting reasonably.

(2) If, for the purposes of maintaining the specified works, the undertaker needs to occupy any road space, the undertaker must comply with National Highways’ road space booking requirements and no maintenance of the specified works for which a road space booking is required shall commence without a road space booking having first been secured.

(3) The undertaker must comply with any requirements that National Highways may notify to the undertaker, such requirements to be notified to the undertaker not less than 7 days in advance of the planned commencement date of the maintenance works.

(4) The provisions of paragraph 64 of this Part of this Schedule shall apply to the opening of any part of the strategic road network following occupation of any road space under this paragraph 72.

Land or rights

73.  If the transfer of any land from or to National Highways or the grant of rights in, on, over or under land for the benefit of the undertaker is required in respect of the specified works, National Highways and the undertaker hereby agree to cooperate in the execution of any transfer or deed of grant or easement as may be necessary. National Highways further agrees that the undertaker may exercise any powers under Part 5 of this Order as may be necessary for the acquisition of such rights.

Expert Determination

74.—(1) Save as set out in sub-paragraph (6), article 52 (arbitration) of the Order does not apply to this Part of this Schedule.

(2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute.

(4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed.

(5) The expert must—

(a)invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b)permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

(c)issue a decision within 42 days of receipt of the submissions under sub-paragraph (b); and

(d)give reasons for the decision.

(6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 52.

(7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.

PART 6FOR THE PROTECTION OF LOCAL HIGHWAY AUTHORITIES

Application etc.

75.  The provisions of this Part of this Schedule apply for the protection of the local highway authority and have effect unless otherwise agreed in writing between the undertaker and the local highway authority.

Interpretation

76.—(1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (2), the latter prevail.

(2) In this Part of this Schedule—

“agreement fee” means a sum equal to eight and a half per cent (8.5%) of the works estimate in respect of the local highway authority’s technical approval, administration and inspection costs for keeping the specified works under observation and inspection during the period of construction from when any specified works begin to when the provisional certificate of completion is issued and undertaking the pre-maintenance inspection pursuant to paragraph 88(1) of this Part of this Schedule and final inspection pursuant to paragraph 90(6) of this Part of this Schedule;

“approved drawings” means those plans drawings, calculations and diagrams required to demonstrate that the specified works can reasonably be constructed within the local highway which shall be substantially in accordance with the highways plans and approved pursuant to this Part of this Schedule;

“approved programme and method statement and traffic management proposals” means respectively the detailed programme of works and the method statement and traffic management proposals as approved by the local highway authority as set out in paragraph 81 of this Part of this Schedule and reference to any one of them and the term “the programme” must be construed accordingly;

“asset management fee” means the sum of £150.00 towards amending the local highway authority’s legal records;

“asset planning fee” means the sum of £150.00 towards adding and amending the local highway authority’s highway asset inventory;

“cash deposit” means a sum equivalent to the works sum;

“CDM Regulations” means The Construction (Design and Management) Regulations 2015;

“cessation of works notice” means a notice served by the local highway authority on the undertaker requiring the undertaker to forthwith cease carrying out the specified works specified in the notice;

“commencement notice” means at least twenty (20) working days’ notice to be given by the undertaker to the local highway authority of the undertaker’s intention to commence the specified works on the local highway;

“commuted sum” means a payment to the local highway authority calculated in accordance with the formulas pursuant to Cambridgeshire County Council’s ‘Highways Commuted Sums’ policy dated 1 April 2023;

“conditions of contract” means the contract for the specified works which must be let by the undertaker using the New Engineering Contract version 3 2013 (NEC3) or version 4 2017 (NEC4) as amended in 2023 or such other contract as may be approved by the local highway authority;

“conditions survey” means a survey of the surface features of the existing local highway recording any existing defects, damage or missing elements and the required record shall include photographs and a location measured from the centre line of the proposed works noting the cardinal direction or intermediate directions for the side of the local highway;

“contractor” means a suitably qualified contractor nominated by the undertaker and approved by the local highway authority (such approval not to be unreasonably withheld or delayed);

“defects” means any damage or defects to the specified works identified by the local highway authority as part of the pre-maintenance inspection pursuant to paragraph 88(1) of this Part of this Schedule and the final inspection pursuant to 90(6) of this Part of this Schedule;

“final certificate” means the certificate issued by the local highway authority at the end of the maintenance period and following the stage 3 safety audit (or the stage 4 safety audit, if necessary, as the case may be) signifying the specified works are satisfactory and any defects have been remedied and otherwise made good to the satisfaction of the local highway authority;

“health and safety file” means the health and safety documentation required under the CDM Regulations prepared by the undertaker and submitted to the local highway authority;

“designers response” as described in GG119 of the Design Manual for Roads and Bridges;

“Housing Estate Road Construction Specification” means the specification within Cambridgeshire County Council’s Development Management – General Principals of Development policy document published by the local highway authority on 7 March 2023;

“local highway” means any public, vehicular highway, way, route, footpath, cycle route, footway, carriageway, bridleway, byway-open-to-all-traffic which vests or is intended at the completion of specified works to vest in or be otherwise maintainable by the local highway authority at public expense;

“local highway authority” means the highway authority with responsibility for the relevant local highway pursuant to the 1980 Act;

“maintenance period” means the period of not less than 12 months from the date of the provisional certificate of completion;

“overseeing organisation” has the meaning as described in GG119 of the Design Manual for Roads and Bridges;

“post-construction inventory” means an inventory of new highway assets listing the number and area of each element of the new assets within the specified works as specified by the local highway authority;

“provisional certificate of completion” means the certificate issued by the local highway authority confirming the specified works have been completed and have been found to be satisfactory to the local highway authority;

“specification” means the Housing Estate Road Construction Specification and where applicable the ‘Design Manual for Roads and Bridges’ and any other such specifications as reasonably required by the local highway authority and as may be amended from time to time;

“specified works” means any highway works and any street works carried out within the local highway as part of the authorised development and includes any part of the specified works (as the case may be);

“stage 2 safety audit” means the audit undertaken of the detailed design of the specified works prior to the commencement of the specified works. The audit shall be undertaken in compliance with the requirements of GG119 of the ‘Design Manual for Roads and Bridges’;

“stage 3 safety audit” means the audit undertaken following completion of the specified works in compliance with the requirements of GG119 of the ‘Design Manual for Roads and Bridges’;

“stage 4 safety audit” means the safety audit undertaken in compliance with the requirements of GG119 of the ‘Design Manual for Roads and Bridges’ at the discretion of the local highway authority following expiration of the maintenance period to assess the specified works in order to determine whether any remedial works are required prior to issue of the final certificate;

“statutory undertaker (highways)” means a statutory undertaker as defined in section 329(1)(8) (further provision as to interpretation) of the 1980 Act and all those bodies deemed to be statutory undertakers for the purposes of the 1980 Act and all those undertakers licensed in accordance with the 1991 Act;

“street lighting design review” means a review of street lighting comprised in the specified works, such review to include layout design and specification;

“technical approval” means approval granted to the undertaker by the local highway authority in connection with each of the specified works at a specific specified works location enabling these to progress to on site operations;

“third party notice information” means—

“third party notices” means at least 20 working days’ notice to be given by the undertaker to—

containing the third party notice information;

“works estimate” means in relation to each part of the specified works the sum specified in the bill of quantities for the relevant part of the specified works in accordance with paragraph 102(5) of this Part of this Schedule;

“works sum” means a sum equivalent to the works estimate plus 10% (contingency).

77.—(1) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of the local highway authority, that approval or consent must—

(a)not be unreasonably withheld or delayed; and

(b)be in writing and subject to such reasonable terms and conditions as the local highway authority may require.

Dispositions

78.—(1) Until issue (or deemed issue) of the final certificate the undertaker must give the local highway authority written notice of any disposition of any legal interest in the land adjacent to the specified works within 15 working days of completion of such disposals save in the following circumstances—

(a)where the disposal is to a—

(i)local authority;

(ii)statutory body or service supply company of an electricity substation gas governor pumping station, water pumping station or other statutory services which have been or are to be constructed or installed;

(iii)local highway authority for the purpose of adoption of the roads and footpaths and cycle ways to be constructed; and/or

(iv)a subsidiary of the undertaker;

(b)where the disposal comprises or involves—

(i)the grant of a legal charge or any security but for the avoidance of doubt not a disposition by a mortgagee in possession or under a power of sale;

(ii)a compulsory sale or acquisition (whether permanent or temporary);

(iii)the grant of a garage lease with the use restricted to use in association with a dwelling.

Prior approvals and security

79.—(1) The specified works must not commence until in respect of that part of the specified works—

(a)the quantum of the cash deposit and the works estimate have been agreed with the local highway authority;

(b)the local highway authority has approved in writing the detailed design of the relevant part(s) of the specified works , the specification and the approved drawings;

(c)the local highway authority has agreed the approved programme and method statement and traffic management proposals;

(d)the commencement notice and the third party notices have been served by the undertaker on the local highway authority;

(e)the undertaker has obtained all necessary consents under the 1991 Act and the Traffic Management Act 2004 (as applicable);

(f)All matters relating to the stage 2 safety audit have been fully resolved to the satisfaction of the overseeing organisation;

(g)a condition survey of the existing local highway for a distance of not less than 50 metres either side of the centreline of the specified works has been undertaken by the undertaker in the presence of an officer of the local highway authority.

(2) If within 40 working days after each and every submission of the details for each and every part of the specified works required to be submitted for approval pursuant to sub-paragraph (1) by the undertaker the local highway authority has not approved or refused them, it is deemed to have approved the details as submitted.

(3) If the local highway authority refuses the details submitted to it under this paragraph 79 at any time, it shall provide with such refusal the reasons therefor.

(4) The procedure specified in this paragraph 79 shall be repeated until such time as the relevant details are approved (or deemed approved) by the local highway authority.

(5) The undertaker must include in any submission made to the local highway authority under this paragraph 79 a statement that the provisions of sub-paragraph (2) apply and if the submission fails to include such statement the provisions of sub-paragraph (2) will not apply.

Construction of the specified works

80.—(1) The undertaker must carry out the specified works as follows—

(a)in a good and workmanlike manner using all professional skill and care and in accordance with good practice for works of the type, size and complexity comprised in the specified works;

(b)in accordance with—

(i)any reasonable instructions of the local highway authority given in writing or verbally (provided that instruction is confirmed by the local highway authority in writing within 2 working days) to the undertaker;

(ii)the specification and approved drawings; and

(iii)all relevant consents and approvals;

(c)in compliance with—

(i)planning and other obligations whether under section 106(9) of the 1990 Act or other statutory provisions applicable to the specified works; and

(ii)all relevant legislation statutory orders and regulations affecting the specified works; and

(d)with due diligence.

(2) The contract for the specified works must be in accordance with the conditions of contract and the local highway authority must have all rights and powers in relation to the construction, completion and maintenance of the specified works as if they were the service manager for the specified works (as defined in the contract) but only insofar as such rights and powers are necessary to ensure that the specified works are constructed, completed and maintained to his satisfaction.

(3) The undertaker must at its own expense—

(a)make reasonable provision to prevent mud and other materials from being carried onto local highways as a result of undertaking the specified works (such provision to include mechanical wheel cleaning apparatus and mechanical road sweeping equipment) and for any local highways on which the specified works are being undertaken to be swept by mechanical means at the end of each working day and at such other times as the local highway authority may reasonably require during the duration of the specified works and in the event that the undertaker fails to respond to any such reasonable request by an officer of the local highway authority, the local highway authority shall be entitled to sweep/clear the local highway itself and recover any and all associated costs for such from the undertaker;

(b)carry out or pay to be carried out such works as may reasonably be required from time to time by public utility companies or by the local highway authority at the request of public utility companies in relation to or in consequence of the construction of the specified works;

(c)as soon as reasonably practicable after receipt of a written request from the local highway authority to do so and in a manner and by such reasonable time determined by the local highway authority (acting reasonably) construct such—

(i)boundary fence;

(ii)footpaths;

(iii)road barrier safety fencing; and

(iv)temporary and permanent regulatory warning signs (including foundation bases and the provision of road traffic sign illumination)

as may in the local highway authority’s reasonable opinion be required in relation to or in consequence of the construction of the specified works;

(d)ensure the lighting and signing of the specified works comply with the specification and approved drawings and the provisions of Chapter 8 of the current edition of the Traffic Signs Manual (published by the Department for Transport) or any amendment thereto or republication thereof;

(e)without prejudice to the provisions of section 174(10) (precautions to be taken by persons executing works in streets) of the 1980 Act until the issue (or deemed issue) of the final certificate keep the specified works safe and in a good state of repair;

(f)pay the energy costs of any street lighting provided as part of the specified works from the date of commissioning/switching on of such street lighting until the issue (or deemed issue) of the final certificate;

(g)during the period when the specified works are being executed—

(i)institute measures reasonably required to maintain the traffic flows on the highways in the vicinity of the specified works with such temporary traffic management arrangements to be operated to the reasonable satisfaction of the local highway authority and except in cases of any emergency the undertaker must give five working days’ notice to the local highway authority of any intention to change the layout of any traffic management arrangements and must obtain the highway authority’s consent before carrying out such changes; and

(ii)request any orders or notices statutorily required in connection with the specified works;

(h)ensure that all operations reasonably necessary for the execution of the specified works must insofar as is reasonably practicable be carried on so as not to interfere unnecessarily or improperly with the public convenience or the access to or use or occupation of local highway or private roads and footpaths; and

(i)provide road markings on each applicable local highway at the time and in the manner to be determined by the local highway authority.

Programme and method statement/commencement of the specified works

81.—(1) Prior to commencing any of the specified works the undertaker must produce—

(a)a programme of works detailing the operations to be undertaken within the adopted public highway and the approximate duration of the specified works;

(b)a method statement in respect of the specified works detailing the methods of construction which the undertaker proposes to adopt or use; and

(c)a detailed traffic management proposal for each separate area of works within the adopted public highway for approval by the local highway authority.

(2) The undertaker must not commence any part of the specified works until—

(a)the programme and method statement and detailed traffic management proposals referred to in sub-paragraph (1) have been approved in writing (or deemed approved) by the local highway authority;

(b)a permit in accordance with the local highway authority’s permit scheme for road works and street works under the Traffic Management Act 2004 and pursuant to the Traffic Management Permit Scheme (England) Regulations 2007(11) has been obtained by the undertaker; and

(c)the requirements of the 1991 Act or the Traffic Management Act 2004 have been complied with.

(3) Any temporary speed restrictions that will be in place for longer than the construction of any of the specified works should be signed as a permanent speed restriction with permanent signs in accordance the Traffic Signs Regulations and General Directions 2016 until such time as the restriction is no longer required and the signage can be removed.

(4) The undertaker must not undertake any specified works other than at the times specified in the approved (or deemed approved) programme and method statement and traffic management proposals unless prior written approval to make the appropriate variation to the approved programme and method statement and traffic management proposals has been obtained from the local highway authority.

(5) If within 40 working days after submission of the details required to be submitted for approval pursuant to this paragraph 81 by the undertaker the local highway authority has not approved or disapproved them, it is deemed to have approved the details as submitted.

(6) If the local highway authority refuses the details submitted to it under this paragraph 81 at any time, it shall provide with such refusal the reasons therefor.

(7) The procedure specified in this paragraph 81 shall be repeated until such time as the relevant details are approved (or deemed approved) by the local highway authority.

(8) The undertaker must include in any submission made to the local highway authority under this paragraph 81 a statement that the provisions of sub-paragraph (5) apply and if the submission fails to include such statement the provisions of sub-paragraph (5) will not apply.

Deviations from approved programme and method statement and traffic management proposals

82.—(1) If following approval (or deemed approval) of the programme the undertaker wishes to review, change, alter or amend the approved programme, method statement and/or detailed traffic proposal the undertaker must submit revised details to the local highway authority for its approval at least 25 working days before the intended implementing of such revisions.

(2) If within 40 working days after submission of the details required to be submitted for approval pursuant to this paragraph 82 by the undertaker the local highway authority has not approved or disapproved them, it is deemed to have approved the details as submitted.

(3) The undertaker must as soon as reasonably practicable carry out such proposals referred to in sub-paragraph (1) as approved (or deemed approved) by the local highway authority and comply with such other reasonable requirements given by the local highway authority in writing or verbally (provided those requirements given verbally are confirmed in writing by the local highway authority within 2 working days).

(4) The undertaker must include in any submission made to the local highway authority under this paragraph 82 a statement that the provisions of sub-paragraph (2) apply and if the submission fails to include such statement the provisions of sub-paragraph (2) will not apply.

Completion of the works

83.  The undertaker must complete the specified works in accordance with the approved programme and method statement and traffic management proposals.

Access, inspection and testing

84.—(1) The undertaker must during the progress of the specified works upon reasonable request give or procure for the local highway authority free access to each and every part of the specified works and permit the local highway authority to inspect the specified works as they proceed and all materials used or intended to be used therein and must give effect to any reasonable and proper requirements made or reasonable and proper direction given by the local highway authority to conform to the programme, the specification and the approved drawings.

(2) The undertaker unless otherwise directed by the local highway authority must not cover up or put out of view any works without its approval and must afford full opportunity for the local highway authority to examine any work which is about to be covered up or put out of view and to examine foundations before permanent work is placed thereon and must give at least five (5) working days’ notice to the local highway authority whenever any such work or foundations is or are ready or about to be ready for examination.

(3) If within 40 working days after requesting the local highway authority examines any works which the undertaker wishes to cover up or put out of view the local highway authority has not responded or undertaken an inspection, it is deemed to have approved the covering up or putting out of view of the relevant works.

(4) The undertaker will allow the local highway authority to test materials, plant and workmanship used or proposed to be used in the specified works and to reject any materials, plant or workmanship so tested which it may reasonably and properly find to be not in accordance with the specification and approved drawings and the costs reasonably incurred by the local highway authority in connection with such testing must be payable by the undertaker.

(5) The undertaker must as soon as is reasonably practicable replace or repair any materials plant or workmanship which have been found not in accordance with the specification and approved drawings with such as are so in accordance.

(6) For the purpose of sub-paragraph (4) the undertaker must afford the local highway authority reasonable access and admission to the places where materials or plant for the specified works may be stored or are in the course of preparation, manufacture or use.

(7) The undertaker must as soon as is reasonably practicable remove such materials, plant and workmanship as are rejected by the local highway authority pursuant to sub-paragraph (4) which are not capable of repair or remedy from the site of the specified works and if the undertaker must wish to continue to store any rejected irreparable materials, plant or workmanship on the site of the specified works they must be stored separately from those materials, plant and workmanship which have not been so rejected or which the undertaker must wish in future to use in execution of the specified works.

(8) The undertaker must include in any request made to the local highway authority under this paragraph 84 a statement that the provisions of sub-paragraph (3) apply and if the request fails to include such statement the provisions of sub-paragraph (3) will not apply.

Inspection and testing (covered work and foundations)

85.  During the construction of the specified works and prior to the issue (or deemed issue) of any provisional certificate of completion the undertaker must upon reasonable request from the local highway authority open up or expose any of the specified works which may have been covered up without previously being inspected by the local highway authority.

Statutory undertakers (highways)

86.—(1) During construction of the specified works prior to the issue (or deemed issue) of any provisional certificate of completion the undertaker must at no cost to the local highway authority carry out or procure the carrying out of such works of protection or alteration as are necessary as a result of the construction of the specified works to the plant, equipment and other apparatus of a statutory undertaker (highways) on the site of the specified works.

(2) The undertaker must cause all new highway or other drains or sewers, gas and water mains, pipes, electric cables (if any) or telecommunications cables and ducts (if any) or other apparatus which are to be laid by the undertaker under the specified works together with all necessary connections from them to the boundary of the specified works to be laid under the specified works before the foundation of the specified works are laid and must also cause the connections from electric cables to street lamps to be laid before the paving of any footways comprised in the specified works is carried out.

Progress of the specified works

87.—(1) The undertaker must keep the local highway authority regularly informed of—

(a)material measures taken and stages reached by the undertaker in performing its obligations;

(b)the progress of the specified works; and

(c)material issues or delays affecting the specified works.

(2) The undertaker must arrange for site meetings to be held as necessary between the local highway authority, the undertaker, the contractor and the project team in order to discuss the carrying out and execution of the specified works in accordance with the provisions of this Part of this Schedule.

Provisional Certificate of Completion

88.—(1) Subject to sub-paragraph (2) when the local highway authority is notified by the undertaker that the specified works have been substantially completed which must mean that the specified works can be permanently used for the purpose and operate in the manner for which they were designed and the undertaker must clear away and remove from the site of the specified works all construction, plant and temporary works of every kind and leave the specified works in a good workmanlike condition and fully suitable for use as a public highway to the satisfaction of the local highway authority and traffic management measures have been removed from the site of the specified works the local highway authority must inspect the specified works as soon as is reasonably practicable (and in any event within 40 working days).

(2) The undertaker shall provide all the documents required under GG119 of the Design Manual for Roads and Bridges to enable the local highway authority to instruct the undertaking of the stage 3 safety audit of the specified works by the local highway authority’s in-house audit team.

(3) Following the formal written approval by the overseeing organisation of the stage 3 safety audit process as defined under GG119 of the Design Manual for Roads and Bridges the local highway authority must notify the undertaker as soon as reasonably possible of any remedial works identified by the local highway authority both as a result of the inspection and the stage 3 safety audit referred to in sub-paragraphs (1) and (2) (respectively) provided that if the local highway authority does not notify the undertaker of any such remedial works within 40 working days from the date of the formal written approval of the overseeing organisation or issue a provisional certificate of completion within that period, the provisional certificate of completion is deemed to have been issued and dated on the day following the 40 working day period.

(4) Subject to sub-paragraph (9) being satisfied by the undertaker (if applicable), if following the expiry of 40 working days of the undertaker notifying the local highway authority pursuant to sub-paragraph (1) the local highway authority has not inspected the specified works the provisional certificate of completion is deemed to have been issued and dated on the day following the 40 working day period.

(5) Where the specified works have not been completed within 24 months of their commencement the undertaker must within 10 working days of the undertaker notifying the local highway authority that the specified works have been substantially completed undertake and submit to the local highway authority a street lighting design review if required as part of the specified works and the local highway authority must notify the undertaker as soon as reasonably possible of any works of alteration or reconstruction required to the street lighting.

(6) The undertaker must comply in full to the local highway authority’s reasonable satisfaction with all requirements identified by it both as a result of the inspection, the stage 3 safety audit and the street lighting design review (if applicable).

(7) If applicable, the undertaker must thereafter notify the local highway authority that the specified works are ready for a further inspection and the local highway authority must (subject to sub-paragraph (9) below) as soon as reasonably practicable following such further inspection issue the provisional certificate of completion.

(8) Subject to sub-paragraph (9) being satisfied by the undertaker (if applicable), if following the expiry of 40 working days after the undertaker notifying the local highway authority pursuant to sub-paragraph (7) the local highway authority has not further inspected the specified works or issued a provisional certificate of completion, the provisional certificate of completion is deemed to have been issued and dated on the day following the 40 working day period.

(9) The undertaker must (if necessary) secure without cost to the local highway authority any deeds of easement or such other deeds to secure to the local highway authority—

(a)full drainage rights in respect of any parts of the surface water drainage system of the specified works;

(b)rights to inspect, maintain and repair any lighting required by the specified works

lying outside the limits of the local highway and the local highway authority must not be liable for payment of compensation or legal or any other costs or fees arising on account of the execution of any such deeds and the undertaker must indemnify the local highway authority in respect thereof.

(10) The undertaker must include in any notification or request for inspection made to the local highway authority under this paragraph 88 a statement that the provisions of sub-paragraphs (3), (4) and/or (8) apply (as applicable) and if the notification or request fails to include such statement the provisions of sub-paragraph (3), (4) and/or (8) (as applicable) will not apply.

Maintenance and defects correction

89.—(1) The undertaker must at its own expense maintain to the satisfaction of the local highway authority all the specified works undertaken during the maintenance period.

(2) During the maintenance period the undertaker must at its own expense execute all such works of repair, reconstruction and rectification of any and all defects and imperfections and of any and all other faults arising out of defective design materials or workmanship or of any other nature whatsoever (which for the avoidance of doubt must include all traffic damage whether accidental or otherwise) that may be required in writing by the local highway authority in relation to the specified works.

(3) If the undertaker fails to carry out or procure the carrying out of any such works as aforesaid the local highway authority may carry out such work by its own employees or by contractors or otherwise and the undertaker must within twenty (20) working days of demand pay to the local highway authority the total amount of the costs and expenses (including traffic management costs) reasonably incurred or to be incurred by the local highway authority in completing such works.

(4) The undertaker must at its own expense carry out under the direction of the local highway authority such searches, tests or trials as may be reasonably necessary in order to ascertain the cause of any defects or faults but only if so required in writing by the local highway authority.

(5) On receipt of a written request from the local highway authority the undertaker must allow access to the specified works for the purpose of conducting at the undertaker’s expense any reasonably required borehole test and the undertaker must be responsible for reinstatement of the specified works.

Stage 4 safety audit

90.—(1) The undertaker must notify the local highway authority upon expiry of the maintenance period and invite the local highway authority to inspect the specified works and to reasonably determine whether or not a stage 4 safety audit is required.

(2) As soon as is reasonably practicable following the invitation to which sub-paragraph (1) refers (and in any event within 40 working days), the local highway authority must inspect the specified works and confirm in writing to the undertaker whether or not a stage 4 safety audit is required and the further remedial works to be undertaken (if any).

(3) If it is determined that a stage 4 safety audit is required which provides for further remedial works to be carried out, then within 40 working days of receipt of the stage 4 road safety audit the undertaker must provide the local highway authority with a programme of works for such further remedial works to be approved by the local highway authority.

(4) The undertaker must comply with and carry out in full to the local highway authority’s satisfaction all requirements identified by the local highway authority as a result of the inspection and where applicable the stage 4 safety audit and must at no cost whatsoever to the local highway authority reinstate and make good the defects including those which in the reasonable and proper opinion of the local highway authority must have arisen out of any defect in the design of the specified works or the use of defective workmanship or materials not in accordance with the specification and approved drawings during the construction of the specified works within the timeframes set out in the approved programme of works.

(5) The undertaker must thereafter notify the local highway authority that the specified works are ready for a further inspection.

(6) As soon as is reasonably practicable (and in any event within 40 working days) following the invitation to which sub-paragraph (5) refers, the local highway authority must further inspect the specified works.

Final Certificate

91.—(1) If after the expiration of the maintenance period and if following the further inspection(s) referred to in paragraph 90 of this Part of this Schedule the specified works have been shown to be satisfactory and the defects have been remedied and the specified works reinstated and otherwise made good to the satisfaction of the local highway authority it must as soon as reasonably practicable issue the final certificate.

(2) Prior to the issue of the final certificate the undertaker must provide the local highway authority with—

(a)a plan showing the land over which the specified works have been constructed;

(b)a complete set of as-built drawings for the whole of the specified works in accordance with paragraph 106 of this Part of this Schedule;

(c)the health and safety file; and

(d)the post-construction inventory.

(3) If within 40 working days after the undertaker requesting an inspection by the local highway authority pursuant to paragraph 90(1) of this Part of this Schedule the local highway authority has not inspected the specified works or specified whether or not a stage 4 safety audit is required, the final certificate is deemed to have been issued and dated on the day following the 40 working day period.

(4) If within 40 working days after the undertaker requesting an inspection by the local highway authority pursuant to paragraph 90(3) of this Part of this Schedule the local highway authority has not further inspected the specified works or issued a final certificate, the final certificate is deemed to have been issued and dated on the day following the 40 working day period.

(5) The undertaker must include in any request for inspection made to the local highway authority under paragraphs 90(1) and/or 90(3) of this Part of this Schedule a statement that the provisions of sub-paragraphs (3) or (4) apply (as applicable) and if the notification or request fails to include such statement the provisions of sub-paragraph (3) or (4) (as applicable) will not apply.

Indemnity

92.—(1) The undertaker must fully indemnify and keep indemnified—

(a)the local highway authority and all persons authorised by it in respect of all actions, liabilities, claims, demands and proceedings arising out of or in connection with or incidental to the carrying out of the specified works including claims relating to the infringement or destruction of any right, easement or privilege, including but not limited to—

(i)the negligent and defective design and/or construction of the specified works including the use of defective workmanship or materials or methods of construction not in accordance with the specification and approved drawings and good practice current when the specified works are constructed;

(ii)in respect of depreciation in the value of any interest in land caused by or resulting from the proper execution and/or use of the specified works or any part thereof; and

(iii)in respect of nuisance, loss or damage caused during or by the proper execution and/or use of the specified works or any part thereof;

(b)the local highway authority in respect of any and all actions, liabilities, claims, demands, proceedings or expenses arising out of or in connection with the use of the highway as modified by the specified works including for the avoidance of doubt claims under Part 1 (compensation for depreciation caused by use of public works) of the Land Compensation Act 1973.

(2) The indemnities specified in sub-paragraph (1) do not apply in respect of any actions, liabilities, claims, demands and proceedings that may arise as a result of the negligence of the local highway authority or any person authorised thereby.

Insurance

93.—(1) The undertaker must take out and maintain(or must procure that the contractor takes out and maintain) and whenever required must produce to the local highway authority satisfactory evidence that it has so taken out and maintained insurances—

(a)against all liability (whether at common law or under statute) in respect of injury (fatal or otherwise) to persons employed or engaged in the execution of the specified works; and

(b)against all third party risks (in respect of persons or property including employees of the local highway authority) arising out of or incidental to the specified works to the extent of not less than ten million pounds (£10,000,000.00) for any one claim.

(2) The insurances referred to in sub-paragraph (1) must be effected with reputable insurance companies and must be continued until the issue of the final certificate.

(3) If the undertaker fails upon written request to produce to the local highway authority satisfactory evidence that there are in force the insurances which it is required to effect under this Part of this Schedule then in any such case the local highway authority may as agent for and on behalf of the local highway authority effect and keep in force any such insurance and pay such premium or premiums as may be necessary for that purpose and from time to time to recover the costs, charges and expenses of doing so from the undertaker as a civil debt.

(4) Whenever insurance is arranged in the joint names of the parties or on terms containing provisions for indemnity to principals the party effecting such insurance shall procure that the subrogation rights of the insurers against the other party are waived and that such policy shall permit either the co-insured or the other party as the case may be to be joined to and be a party to any negotiations, litigation or arbitration upon the terms of the policy or any claim thereunder.

Variation to council specification and approved drawings

94.—(1) Save as provided in sub-paragraph (2) and subject to sub-paragraph (5) the undertaker must not make any variations (that is to say any alterations or additions or omission of anything from the specification and approved drawings nor the use of any materials in substitution for any specified in the specification and approved drawings) without the local highway authority giving prior written approval thereto (such approval not to be unreasonably withheld or delayed).

(2) The undertaker is entitled to make such variations as are insubstantial and immaterial and of a routine nature provided that this entitlement does not apply in respect of any variation consisting of substitution of materials specified in the specification and approved drawings.

(3) The undertaker must provide on request by the local highway authority a complete full sized hard copy set of the approved drawings as amended and revised from time to time for the duration of the specified works.

(4) The undertaker must take such steps as are necessary to procure for the local highway authority the full right and entitlement to use the ‘as built’ drawings on licence without further payment or liability for further payment for the purpose of constructing, repairing, rectifying, adjusting and/or maintaining the specified works and will execute all such deeds and documents as may be required to perfect such licence.

(5) If within 40 working days after the undertaker requesting any variations pursuant to sub-paragraph (1) the local highway authority has not responded, the variations are deemed approved as submitted.

(6) The undertaker must include in any submission made to the local highway authority under this paragraph 94 a statement that the provisions of sub-paragraph (5) applies and if the submission fails to include such statement the provisions of sub-paragraph (5) will not apply.

Default

95.—(1) If the undertaker fails to complete or maintain the specified works in accordance with this Part of this Schedule the local highway authority (including its own employees or by contractors or otherwise) may after not less than thirty (30) working days’ notice in writing to the undertaker to carry out the specified works or any such part or parts thereof as is or are not completed by the undertaker in accordance with this Part of this Schedule and the undertaker must within twenty (20) working days of written demand pay to the local highway authority the total amount of the reasonable costs and expenses incurred or to be incurred by the local highway authority in completing the specified works or if such payment is not made the local highway authority must recover the total amount of the reasonable costs from the cash deposit in accordance with paragraph 100 of this Part of this Schedule.

(2) In the event of the local highway authority executing the specified works pursuant to sub-paragraph (1) the undertaker must remove any temporary buildings, plant, tools, equipment, goods and materials belonging to or hired by it and in the event of any failure to do so the local highway authority may sell or otherwise dispose of such items and from the proceeds of sale of any such items the local highway authority may retain any costs or expenses incurred in connection with such sale and disposal and may apply any surplus in set off against any costs and expenses incurred pursuant to sub-paragraph (1) before accounting to the undertaker.

(3) Without prejudice to sub-paragraph (1) the local highway authority may serve a cessation of works notice where in the local highway authority’s reasonable opinion all or any part of the specified works are being carried out in breach of the terms of this Part of this Schedule.

(4) The undertaker must forthwith upon receipt of a cessation of works notice stop carrying out any works specified in that notice and must not recommence those works without the local highway authority’s prior written approval (which must not be unreasonably withheld or delayed) or until the local highway authority gives further notice to the undertaker withdrawing the cessation of works notice provided that in respect of any period of cessation of works arising out of a notice served the period provided for completion of the specified works referred to in paragraph 83 of this Part of this Schedule must be extended by an equivalent period.

(5) If within 20 working days after the undertaker requesting recommencement of the specified works following the receipt of a cessation of works notice pursuant to sub-paragraph (3) the local highway authority has not responded, the undertaker may recommence the specified works.

CDM Regulations

96.  The undertaker shall assume the obligations of the client for the purposes of the CDM Regulations and shall ensure that the execution of the specified works complies with the CDM Regulations and in the course of carrying out those obligations the undertaker shall act as principal designer and appoint a principal contractor in respect of the specified works in accordance with the CDM Regulations.

Telecommunications apparatus

97.  Save as provided in the specification and approved drawings the undertaker must not at any time give consent to any telecommunications company for the installation of any services in the specified works without the prior written consent in writing of the local highway authority such consent not to be unreasonably withheld or delayed.

Commuted sum and asset fees

98.—(1) If a commuted sum is required by the local highway authority the undertaker will pay the agreed commuted sum to the local highway authority prior to commencement of the part of the specified works to which the commuted sum relates.

(2) The undertaker shall pay the asset management fee and the asset planning fee to the local highway authority prior to commencement of the specified works.

Safety Audit Costs

99.  The undertaker must within 10 working days of the local highway authority’s request pay all costs incurred by the local highway authority in undertaking any road safety audit (whatever their stage) which shall include all costs incurred in testing of materials.

Cash Deposit

100.—(1) The undertaker shall prior to the commencement of any of the specified works deposit with the local highway authority the cash deposit as security for the performance by the undertaker of its obligations in this Part of this Schedule provided that if the undertaker—

(a)carries out, completes and maintains the specified works in accordance with this Part of this Schedule; and

(b)makes all payments in respect of damages, indemnity, reimbursement or otherwise which may have become payable by the undertaker under the terms hereof or in respect of any breach, non-observance or non-performance of any of the terms hereof; and

(c)in all other respects duly perform their obligations hereunder

the cash deposit plus any accrued interest (at a rate of 1% below the Bank of England’s base rate or 0% whichever is the greater) shall be refunded to the undertaker (but less any part of the cash deposit and interest thereon properly used by the local highway authority in accordance with this Part of this Schedule to defray the costs to the local highway authority arising from the failure of the undertaker to fulfil its obligations or any of them under this Part of this Schedule.

(2) In the event of the costs to which sub-paragraph (1) refers being less than the amount of the cash deposit plus interest accrued due the balance shall be repaid to the undertaker by the local highway authority within 20 working days of the final costs to the local highway authority arising from the default of the undertaker having been ascertained.

(3) In the event of the costs to which sub-paragraph (1) refers being greater than the amount of the cash deposit plus the interest accrued due the balance of such costs shall be a debt due to the local highway authority and payable by the undertaker within 20 working days of notice being issued by the local highway authority to the undertaker of the amount of the said balance.

(4) Following issue of the provisional certificate of completion the local highway authority shall refund to the undertaker so much of the cash deposit so that the amount of the cash deposit retained by the local highway authority amounts to fifty percent (50%) of the original value of the cash deposit.

(5) The remainder of the cash deposit shall subject to sub-paragraph (1) be refunded in full upon issue of the final certificate by the local highway authority.

Dispute provisions

101.—(1) Article 52 (Arbitration) of the Order does not apply to this Part of this Schedule.

(2) In the event of a dispute between the local highway authority and the undertaker (the parties), each agrees that—

(a)they will use their reasonable endeavours to seek to resolve the dispute by entering into negotiation and discussion—

(i)should such negotiation and discussion not resolve the dispute then the undertaker, the contractor and the local highway authority will use their reasonable endeavours to agree to jointly instruct and enter into mediation on the basis of both parties paying their own costs;

(ii)in the event of mediation not resulting in an agreed solution (within a reasonable time of such process), then either one or both parties may refer the dispute to an expert for determination—

(aa)such expert must be an independent and suitable person holding appropriate professional qualifications to be appointed (in the absence of an agreement) by or on behalf of the President for the time being of the Institution of Civil Engineers, unless otherwise agreed between the parties. Such person must act as an expert whose decision must be final and binding on both parties in the absence of any manifest error or fraud;

(bb)any expert howsoever appointed must be subject to the express requirement that a decision must be reached and communicated to both relevant parties within the minimum practical timescale allowing for the nature and complexity of the dispute and in any event not more than 20 working days after the conclusion of any hearing that takes place or 20 working days after he has received any file or written representation;

(cc)the expert must be required to give notice to each of the said parties requiring them to submit to him within 10 working days of notification of his appointment written submissions and supporting material and the other party will be entitled to make a counter written submission within a further 10 working days.

(3) Nothing in this clause must prevent either party having recourse to law, including necessity for court action in relation to public safety.

Documents submitted for approval

102.—(1) Any documents submitted by the undertaker to the local highway authority shall conform to the following requirements—

(a)In respect of construction details – the Housing Estate Road Construction Specification;

(b)Where required by the local highway authority – the design manual for roads and bridges and the accompanying suite of documents;

(2) Any and all copyright requirements of the undertaker and its representatives shall be waived in respect of the normal requirements of the local highway authority and such permission shall be provided in writing.

(3) If deemed necessary by the local highway authority for each part of the specified works the undertaker shall provide all documentation required under GG119 of the Design Manual for Roads and Bridges to undertake a stage 2 safety audit.

(4) Where a stage 2 safety audit has been required by the local highway authority no part of that specified works shall be undertaken until the stage 2 safety audit has been completed to the satisfaction of the overseeing organisation.

(5) Prior to the specified works commencing the undertaker will submit to the local highway authority for approval a provisionally priced bill of quantities for the specified works and any land to be dedicated as public highway as part of the specified works and such bill of quantities must—

(a)comply with the layout and requirements of the specified works; and

(b)include elements for traffic management

and this figure will be the works estimate.

Agreement Fee

103.—(1) The undertaker will pay to the local highway authority upon technical submission an amount being 50% of the undertaker’s reasonable calculation of the agreement fee.

(2) The undertaker and the local highway authority will agree the works estimate prior to the issuing of technical approval by the local highway authority.

(3) The undertaker will pay to the local highway authority the remaining balance of the agreement fee (as established following the agreement of the works estimate pursuant to sub-paragraph (2)) prior to the issuing of technical approval by the local highway authority.

(4) The deeming provisions to which paragraph 79(2) of this Part of this Schedule refers shall not apply to the technical submission to which sub-paragraph (1) refers unless and until the undertaker has paid the agreement fee in full to the local highway authority in accordance with this paragraph 103 provided that this sub-paragraph does not affect such deeming provisions insofar as they relate to approval of the works estimate (or any other approval required to be given) by the local highway authority.

Additional technical vetting costs

104.  Additional technical vetting costs are applicable in respect of all road safety audits, structures, traffic signals and street lighting within the local highway.

Submissions of Drawings

105.—(1) The undertaker must supply electronic versions of the drawings and all other information required.

(2) All plans shall be at a true scale of no less than 1:500 and the construction specification drawings shall be at a scale of 1:20.

(3) The undertaker shall provide the local highway authority with the following minimum information for the specified works—

(a)The extent of the specified works within the public highway (coloured as below) at a true scale of not less than 1:200—

(i)specified works within existing public highway shall be coloured green (the shade of green shall conform to Hue 80, Saturation 117, Luminance 131 (#58BC4A Hex number));

(ii)if any land is to be offered for adoption by the local highway authority then such areas shall be coloured in pink (the shade of pink shall conform to Hue 223, Saturation 205, Luminance 208 (#F6AAE4 Hex number)); and

(iii)gullies, connections to the publicly maintained surface water sewer and any lengths of highway drain shall be marked blue;

(b)the proposed longitudinal and cross sections;

(c)the proposed layout of the street lighting;

(d)the construction drawings for the specified works;

(e)a plan showing the areas drained by each gully within the area of the specified works and such plan shall—

(i)identify the areas drained by varying the direction of a simple 45° line hatching;

(ii)show the areas drained by each gully in numbers;

(iii)show the direction and fall to the gully expressed as a factor of 1 (i.e. 1:150); and

(iv)identify the level of the high point and gully;

(f)a plan showing the proposed surface course material using different hatches or colours to differentiate between the materials being proposed;

(g)a plan showing all kerbing and edging types to be used;

(h)a copy of the geo-technical report for the site and the design California bearing ratios for the foundation must comply with the requirements of the Housing Estate Road Construction Specification;

(i)general arrangement drawing showing location and nature of utilities/ statutory undertakers’ apparatus; and

(j)all changes to drawings through the technical vetting process must be clouded in red.

As built drawings

106.—(1) The undertaker will immediately prior to the issuing of the final certificate for each of the specified works at a specific specified works location provide to the local highway authority six copies of an as built drawing at a true scale of not less than 1:500, showing the following information—

(a)Any key alterations to the layout/ adoptable areas which may have occurred through the construction process.

(b)The location and type of all street furniture, including, street lighting columns, lit and unlit bollards and the like.

(c)Gully locations and connections to the adopted sewer system, including lengths protected with concrete bed and surround.

(d)Lengths of highway drain.

PART 7FOR THE PROTECTION OF THE RELEVANT NAVIGATION AUTHORITY

107.  For the protection of the relevant navigation authority the following provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the relevant navigation authority, have effect.

108.  In this Part of this Schedule—

“river work” means any works forming part of the authorised development which are in or over the river Cam or which require interference with the movement of river traffic on the river Cam;

“temporary river work” means those river works which are temporary in nature and which do not form part of the permanent works in or over the river Cam.

River works

109.—(1) Save in an emergency, the undertaker will not commence any river work until—

(a)it has supplied to the relevant navigation authority plans of that river work showing the detailed design, work programme and any associated temporary or permanent interference with rights of navigation pursuant to articles 44(1) and 44(2) (rights on the river Cam); and

(b)it has provided 42 days’ written notice of the intention to commence such river work.

(2) The relevant navigation authority must provide any comments on the plans submitted pursuant to sub-paragraph (1)(a) within 28 days of receipt and the undertaker must have reasonable regard to those comments insofar as they relate to the maintenance of the safe movement of traffic on the river Cam.

(3) The undertaker must carry out all river work—

(a)in accordance with such details as have been provided to the relevant navigation authority pursuant to this paragraph 109;

(b)so that the movement of river traffic on the river Cam is not restricted more than is reasonably practicable in order to carry out the relevant river work; and

(c)in compliance with the reasonable requirements of the relevant navigation authority.

(4) Upon completion of any river work, the undertaker must—

(a)remove as soon as is reasonably practicable any temporary river work and associated materials; and

(b)as soon as reasonably practicable following the removal of any temporary river work pursuant to sub-paragraph (4)(a), to make good the site of any temporary river work including any damage to walls or banks arising from undertaking the river work so as not to cause any interference with the movement of river traffic.

(5) In carrying out any river work, the undertaker must not—

(a)deposit in or allow to fall or be washed into the river Cam any gravel, soil or other material except to the extent permitted by this Order; and

(b)discharge or allow to escape either directly or indirectly into the river Cam any offensive or injurious matter.

Details for approval

110.—(1) The undertaker must, at the same time as the provision of the plans pursuant to paragraph 109(1)(a) of this Part of this Schedule, provide for the approval of the relevant navigation authority—

(a)details of the extent of any temporary suspension of rights of navigation required pursuant to article 44(3) (rights on the river Cam) in order to carry out the relevant river work and the undertaker must not interfere with any rights of navigation pursuant to article 44(3) except in accordance with this paragraph 110; and

(b)details of any temporary or permanent signage required in connection with the river work.

(2) The relevant navigation authority must respond in writing within 42 days of the request for approval under sub-paragraph (1) to either give approval to the details as submitted or suggest amendments to the details provided, but any such amendment must not materially affect or delay the efficient delivery of the relevant river work and must be suggested only where the relevant navigation authority considers such amendment necessary (acting reasonably) in accordance with its functions and duties in its capacity as the relevant navigation authority.

(3) If the relevant navigation authority provides pursuant to sub-paragraph (2) any suggested amendments to the details provided, the undertaker must within 14 days confirm whether those amendments are accepted and in the event the undertaker agrees to the amendments, the undertaker must carry out the relevant river work in accordance with those amendments. In the event the undertaker does not agree to the amendment, the dispute may be referred to and settled by arbitration in accordance with article 52 (arbitration) and the relevant river work is to be undertaken in accordance with the terms of the final determination.

(4) If the relevant navigation authority fails to respond to the undertaker’s request for approval pursuant to this paragraph 110 within 42 days, approval is deemed to have been given.

(5) The undertaker must pay the relevant navigation authority a sum equal to the whole of any costs and expenses reasonably and properly incurred by the relevant navigation authority in relation to any approvals sought under this paragraph 110 within 30 days of written evidence of such costs and expenses.

Intention to commence Work No. 31 and Work No. 32

111.  The undertaker will provide to the relevant navigation authority at least 42 days’ written notice of the intention to commence Work No. 31 and Work No. 32.

Expenses

112.  Any reasonable and proper additional expenses not otherwise provided for in this Part of this Schedule which the relevant navigation authority incurs in managing or maintaining the river under any powers existing at the making of this Order by reason of the construction of any river work or temporary river work must be repaid by the undertaker to the relevant navigation authority (but subject to the submission to the undertaker, to its reasonable satisfaction, of written evidence that the additional expenses are a direct result of the construction of the river work or temporary river work and on the proviso that there will be no double recovery).

Indemnity

113.—(1) Subject to the provisions of this paragraph 113, the undertaker agrees to indemnify the relevant navigation authority from and against such charges, claims, demands, damages, expenses, liabilities and losses, (together, “losses”) suffered or reasonably incurred by the relevant navigation authority to the extent that any losses are directly caused by—

(a)the construction of a river work or a temporary river work; or

(b)any act or omission of the undertaker or of its officers, employees, servants, contractors or agents whilst engaged in—

(i)the construction or carrying out of maintenance of the river work or a temporary river work; or

(ii)seeking to remedy any failure of the river work or a temporary river work.

(2) The relevant navigation authority must mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under sub-paragraph (1) and must, if requested by the undertaker, provide an explanation of how any claim under the indemnity in sub-paragraph (1) has been mitigated.

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any losses referred to in that sub-paragraph to the extent that they are—

(a)attributable to the negligence or wilful misconduct of the relevant navigation authority or of its officers, employees, servants, contractors or agents; or

(b)not within the reasonable control of the undertaker or of its officers, employees, servants, contractors or agents.

(4) The relevant navigation authority must give to the undertaker notice in writing of any losses for which the undertaker may be liable under this paragraph 113 as soon as reasonably possible and no settlement or compromise of them may be made without the prior written consent of the undertaker which, if it notifies the relevant navigation authority that it desires to do so, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand provided that no settlement or compromise of any such claim or demand shall be made without the consent of the relevant navigation authority (which shall not be unreasonably withheld). If consent is not given by the undertaker, the relevant navigation authority shall diligently defend such claim or demand.

Disputes

114.  Any difference arising between the undertaker and the relevant navigation authority under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) must be referred to and settled by arbitration in accordance with article 52 (arbitration).

PART 8FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

115.  For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing, between the undertaker and the operator.

116.  In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003;

“the code rights” has the same meaning as in the paragraph 3 of the electronic communications code(12);

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 (networks, services and the radio spectrum) of the 2003 Act;

“electronic communications code network” means—

“electronic communications code operator” means a person in whose case the electronic communication code is applied by a direction under section 106 of the 2003 Act;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and

“operator” means the operator of an electronic communications code network.

117.  The exercise of the powers conferred by this Order is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

118.—(1) Subject to sub-paragraph (2) and paragraph 119 of this Part of this Schedule, if as a result of the authorised development or its construction, or of any subsidence resulting from any of the authorised development—

(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposed of the authorised development), or other property of an operator; or

(b)there is any interruption in the supply of the service supplied by an operator,

the undertaker, must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other reasonable expense, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

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

119.  The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker and if such consent is withheld the undertaker has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

120.  Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 52 (arbitration).

121.  This Part of this Schedule does not apply to—

(a)any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

122.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made.

PART 9FOR THE PROTECTION OF CAMBRIDGE WATER

123.  For the protection of Cambridge Water the following provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and Cambridge Water.

124.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cambridge Water are regulated by the provisions of Part 3 of the Water Industry Act 1991.

125.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable Cambridge Water to fulfil its statutory functions in no less efficient a manner than previously;

“apparatus” means any works, mains, pipes or other apparatus belonging to or maintained by Cambridge Water for the purposes of water supply and any drain or works vested in Cambridge Water under the Water Industry Act 1991 and any sewer which is so vested in Cambridge Water or is the subject of a notice of intention to adopt by Cambridge Water given under section 102(4)(13) (adoption of sewers and disposal works) of that Act or an agreement to adopt by Cambridge Water made under section 104(14) (agreements to adopt sewer, drain or sewage disposal works, at future date) of that Act, and includes a sludge main, disposal main (within the meaning of section 219(15) (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“Cambridge Water” means Cambridge Water PLC (Company Registration Number 03175861) whose registered office is situated at 90 Fulbourn Road, Cherry Hinton, Cambridge, CB1 9JN and includes its successors in title or any successor in functions as a water undertaker within the meaning of the Water Industry Act 1991;

“functions” includes powers and duties;

“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 sections, drawings, specifications and method statements; and

“standard protection strips” means the strips of land falling the following distances to either side of the medial line of any relevant pipe or apparatus: 2.25 metres where the diameter of the pipe is less than 150 millimetres, 3.5 metres where the diameter of the pipe is between 150 and 450 millimetres, 5 metres where the diameter of the pipe is between 450 and 750 millimetres and 6 metres where the diameter of the pipe exceeds 750 millimetres.

Apparatus of Cambridge Water

126.  The undertaker must not interfere with, build over or build within 6 metres of any apparatus within the Order land or execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus or execute any filling around the apparatus (where the apparatus is laid in a trench) within the standard protection strips unless otherwise agreed in writing with Cambridge Water.

127.  If, in the exercise of the powers conferred by this Order, the undertaker requires the alteration, extension, removal or re-location of any apparatus, then that alteration, extension, removal or re-location of any apparatus must not be implemented by the undertaker until—

(a)any requirement for any permits under the Environmental Permitting (England and Wales) Regulations 2016 or other legislation and any other associated consents are obtained, and any approval or agreement required from Cambridge Water on alternative outfall locations as a result of such re-location are approved;

(b)the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Cambridge Water has agreed all of the contractual documentation required under the Water Industry Act 1991; and

(c)Cambridge Water has been consulted upon the proposed position of the alternative apparatus and such consultation has given Cambridge Water no less than 60 days within which to respond,

and such works to be executed only in accordance with the plan, section and description submitted and in accordance with the written approval of, and such reasonable requirements as may be made by Cambridge Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and an officer of Cambridge Water is entitled to watch and inspect the execution of those works.

128.  Regardless of any provision in this Order or anything shown on any plan, the undertaker must not acquire any apparatus otherwise than by agreement.

Acquisition of land

129.  In the situation, where in exercise of the powers conferred by the Order, the undertaker acquires any interest in any land in which apparatus is placed, or which has the effect of impacting on any existing apparatus owned by Cambridge Water, and such apparatus is to be relocated, extended, removed or altered in any way, no alteration or extension can take place until the undertaker has given Cambridge Water written notice of that requirement and Cambridge Water has established to its reasonable satisfaction, contingency arrangement in order to conduct its functions for the duration of the works to relocate, extend, remove or alter the apparatus and for the avoidance of doubt the undertaker will indemnify Cambridge Water in respect of the costs of any such contingency arrangements reasonably required by Cambridge Water including any requirement to remove any existing apparatus.

130.  Where the undertaker is notifying Cambridge Water of any proposed works under this Part of this Schedule then unless otherwise agreed between the parties, the following will be provided to Cambridge Water—

(a)the exact position of the works;

(b)the level at which they are proposed to be constructed, renewed or moved;

(c)the manner of their construction or renewal including details of excavation and positioning of plant;

(d)the position of all apparatus including existing apparatus and apparatus to be retained;

(e)detailed drawings showing the alterations proposed to the apparatus; and

(f)any maintenance required.

131.  Before extinguishing any existing rights for Cambridge Water to use, keep, inspect, renew and maintain its apparatus in the Order land, the undertaker must, with the agreement of Cambridge Water, create a new right to use, keep, inspect, renew and maintain the apparatus and such right must not be materially more onerous for Cambridge Water, such agreement not to be unreasonably withheld or delayed, and to be subject to arbitration under article 52 (arbitration).

Access

132.  If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is materially obstructed the undertaker must provide such alternative means of access to such apparatus as will enable Cambridge Water to maintain or use the apparatus no less effectively and no less onerously (including having regard to maintenance costs) than was possible before such obstruction.

Unmapped apparatus

133.  If in consequence of the exercise of the powers conferred by the Order, previously unmapped lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets will immediately be given to Cambridge Water and afforded the same protection as other Cambridge Water assets.

Costs

134.  If for any reason or in consequence of the construction of any of the works referred to in paragraphs 129 to 131 and 133 of this Part of this Schedule any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in the view of Cambridge Water due to its intended removal for the purposes of those works) or property of Cambridge Water, or there is any interruption in any service provided, or in the supply of any goods, by Cambridge Water, the undertaker must—

(a)bear and pay the cost reasonably incurred by Cambridge Water in making good any damage or restoring the supply; and

(b)make reasonable compensation to Cambridge Water for any other expenses, loss, damages, penalty or costs incurred by Cambridge Water (and for the avoidance of doubt this shall include any costs incurred due to an interruption in service to customers),

by reason or in consequence of any such damage or interruption save that nothing in this paragraph 134 shall impose liability on the undertaker to the extent that such costs are attributable to the neglect or default of Cambridge Water, its officers, employees, contractors or other agents.

Expenses

135.—(1) The undertaker must repay to Cambridge Water the expenses incurred by Cambridge Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus (including costs or compensation payable in connection with the acquisition of land for that purpose) which may be required in consequence of the execution of any of the authorised works.

(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated and determined by Cambridge Water after removal.

(3) If in accordance with the provisions of this Part 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 (save where it is not possible in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth); 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 situated,

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 undertaker or, in default of agreement, is not determined by arbitration in accordance with article 52 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of 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 Cambridge Water by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

(4) For the purposes of sub-paragraph (3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus will 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 pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph would be payable to Cambridge Water in respect of works by virtue of sub-paragraph (1) will, 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 Cambridge Water 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.

Co-operation

136.  Any approval of Cambridge Water required under this Part of this Schedule—

(a)must not be unreasonably withheld or delayed;

(b)must be given in writing; and

(c)will be deemed to have been given if neither given nor refused within 42 days of the receipt of the information for approval or, where further particulars are requested by Cambridge Water within 42 days of receipt of the information to which the request for further particulars relates.

PART 10FOR THE PROTECTION OF THE LEAD LOCAL FLOOD AUTHORITY

137.  The following provisions apply for the protection of the lead local flood authority unless otherwise agreed in writing between the undertaker and the lead local flood authority.

138.  In this Part of this Schedule—

“construction” includes execution, placing, altering, replacing, relaying, removing and excavation and “construct” and “constructed” are to be construed accordingly;

“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991(16);

“plans” includes sections, drawings, specifications, calculations, method statements and details of maintenance regimes;

“specified work” means so much of any work or operation authorised by this Order and the construction of any works authorised by this Part of this Schedule as is in, on, under, over or within 8 metres of an ordinary watercourse or is otherwise likely to affect any ordinary watercourse.

139.—(1) Before beginning to construct any specified work, the undertaker must submit to the lead local flood authority plans of the specified work and such further particulars available to it as the lead local flood authority may within 2 months of the receipt of the plans reasonably request.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved pursuant to sub-paragraph (3), or determined under paragraph 143 of this Part of this Schedule.

(3) Any request for approval or refusal of the lead local flood authority under this paragraph 139—

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been approved if it is neither given nor refused within 2 months of the submission of the plans;

(c)in the case of a refusal, must be accompanied by a statement of the grounds of refusal; and

(d)may be given subject to such reasonable requirements as the lead local flood authority may make for the protection of any ordinary watercourse.

(4) Each time the lead local flood authority requests further information from the undertaker, the time period in sub-paragraph (3)(b) will begin to run again from receipt of the information by the lead local flood authority, save that the time period will be reduced to 28 days.

(5) The undertaker must include in any submission made to the lead local flood authority under this paragraph 139 a statement that the provisions of sub-paragraph (3)(b) and sub-paragraph (4) apply and if the submission fails to do it the provisions of sub-paragraph(3)(b) and sub-paragraph (4) will not apply.

(6) Any requirement made by the lead local flood authority under sub-paragraph (3)(d) may include—

(a)a requirement for the undertaker to carry out monitoring during the implementation of any de-watering scheme approved by the lead local flood authority under this paragraph 139; and

(b)a requirement for the undertaker not to prevent or materially restrict the lead local flood authority’s use of any access route during construction of the specified work or, where that is not possible owing to the nature of the work, a requirement for the undertaker to provide for use by the lead local flood authority during construction of the specified work a reasonably suitable alternative to the access route on land over which the undertaker has control or the ability to provide such alternative access.

140.  Without limitation on the scope of paragraph 139 of this Part of this Schedule, but subject always to the provisions of that paragraph as to reasonableness, the requirements which the lead local flood authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, within the Order limits whether temporary or permanent, before or during the construction of the specified works (including the provision of walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a)to safeguard any ordinary watercourse against damage; or

(b)to secure that the risk of flooding is not otherwise increased,

by reason of any specified work.

(2) Subject to sub-paragraph (3), any specified work, and all protective works required by the lead local flood authority under this paragraph 140, must be constructed without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule.

(3) The undertaker must give to the lead local flood authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 24 hours after the date on which it is completed.

(4) If any part of a specified work or any protective work required by the lead local flood authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the lead local flood authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the lead local flood authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the lead local flood authority reasonably requires.

(5) Subject to sub-paragraph (6) if, within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the lead local flood authority may execute the works specified in the notice and any expenditure reasonably incurred by the lead local flood authority in so doing is recoverable from the undertaker.

(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the lead local flood authority must not except in the case of an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 143 of this Part of this Schedule.

141.  The undertaker must make reasonable compensation for costs, charges and expenses which the lead local flood authority may reasonably incur—

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

(b)in inspecting the construction of the specified work or any protective works required by the lead local flood authority under this Part of this Schedule; and

(c)in carrying out any surveys or tests by the lead local flood authority which are reasonably required in connection with the construction of the specified work.

142.—(1) The undertaker must make reasonable compensation for liabilities, costs and losses which may be reasonably incurred or suffered by the lead local flood authority by reason of—

(a)the construction of any specified works comprised within any work or operation or any associated maintenance authorised by this Order; or

(b)any act or omission of the undertaker, its employees, contractors or agents or others while engaged upon the construction of any work or operation or any associated maintenance authorised by this Order.

(2) The lead local flood authority must give to the undertaker reasonable notice of any such claim or demand and afford the undertaker the opportunity to take conduct of such claims and demands.

(3) The undertaker may at its own expense and if it elects to do so, conduct all negotiations for the settlement of any such claim and have conduct of any litigation that may arise therefrom.

(4) The lead local flood authority must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(5) The lead local flood authority will, having regard to its statutory functions, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or losses.

(6) The lead local flood authority will, at the request of the undertaker and having regard to its statutory functions, afford all reasonable assistance for the purpose of contesting any such claim or action, and it entitled to be repaid its reasonable expenses reasonably incurred in so doing.

(7) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the lead local flood authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from, any liability under this Part of this Schedule.

(8) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of any liabilities, costs or losses attributable to the neglect or default of the lead local flood authority, its officers, servants, contractors or agents.

143.  Any dispute arising between the undertaker and the lead local flood authority under this Part of this Schedule is to be determined by arbitration under article 52 (Arbitration).