SCHEDULES

SCHEDULE 15PROTECTIVE PROVISIONS

PART 2FOR THE PROTECTION OF EASTERN POWER NETWORKS PLC

Application

schedule 15 paragraph 9 + 9.  For the protection of Eastern Power, the following provisions have effect, unless otherwise agreed in writing between the undertaker and Eastern Power.

Interpretation

schedule 15 paragraph 10 + 10.  In this Part of this Schedule—

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

term apparatus + “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;

term functions + “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

term eastern power + “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

schedule 15 paragraph 11 + 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

schedule 15 paragraph 12 + 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

schedule 15 paragraph 13 + 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

schedule 15 paragraph 14 + 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

schedule 15 paragraph 15 + 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

schedule 15 paragraph 16 + 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

schedule 15 paragraph 17 + 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—

schedule 15 paragraph 17 3 a + (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

schedule 15 paragraph 17 3 b + (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)—

schedule 15 paragraph 17 4 a + (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

schedule 15 paragraph 17 4 b + (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

schedule 15 paragraph 18 + 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—

schedule 15 paragraph 18 1 a + (a)bear and pay the cost reasonably incurred by Eastern Power in making good such damage or restoring the supply; and

schedule 15 paragraph 18 1 b + (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.