SCHEDULES

Articles 37 and 59

SCHEDULE 14PROTECTIVE PROVISIONS

PART 1FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Application

1.  For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

Interpretation

2.  In this Part of this Schedule—

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

“apparatus” means—

and 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;

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

“utility undertaker” means—

for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

On street apparatus

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

Apparatus in stopped up streets

4.—(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

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

Protective works to buildings

5.  The undertaker, in the case of the powers conferred by article 20 (protective work to land and buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6.  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

7.—(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 requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility 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 utility undertaker in question in accordance with sub-paragraphs (2) to (6).

(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 the utility undertaker in question 28 days’ written notice of that requirement, together with a plan 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 a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility 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 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 the utility undertaker must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best 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 utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 64 (arbitration).

(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 64, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (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 utility undertaker in question that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

(7) If the utility undertaker in question fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved.

(8) For the avoidance of doubt, any such “deemed consent” under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.

(9) No part of this paragraph, or this Schedule, apply to the disused pipeline (comprised in Works Nos. G8 and G9) in plots 37-05, 38-04, 38-06, 38-07, 38-08, 38-11, 38-22, 38-26, 38-27, 38-31, 38-32, 38-36, 38-39, 38-41, 38-42, 38-43, 38-47, 38-64, 39-03, 39-07, 39-10, 39-23, 39-24, 39-47, 39-60, 39-62, 39-67, 39-68, 39-77, 39-78, 39-79, 40-09, 40-20, 40-21, 40-22 and 40-23 as shown in the land plans unless otherwise agreed with the City of London Corporation.

Facilities and rights for alternative apparatus

8.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker 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 are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 64 (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 utility undertaker in question 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 that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

9.—(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 7(2) (removal of apparatus), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.

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

(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(4) If a utility 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 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

(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 instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan 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

10.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility 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 7(2) (removal of apparatus).

(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 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 article 64 (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 utility 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 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 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 would be payable to a utility undertaker 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 the utility undertaker 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.

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 (protective work to buildings) or 7(2) (removal of apparatus), or by reason of any subsidence resulting from such development or 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 those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

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

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

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

(2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless the utility undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and professional 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 with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.

(4) A utility undertaker 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 who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Co-operation

12.  Where in consequence of the proposed construction of any part of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) (removal of apparatus) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9 (retained apparatus), the undertaker must use best 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 the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

13.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 2FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

Application

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

Interpretation

15.  In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003(6);

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

“the electronic communications code” has the same meaning as in section 106 (application of the electronic communications code)(7) of the 2003 Act;

“electronic communications code network” means—

“electronic communications code operator” means a person in whose case the electronic communications 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) (infrastructure system) of that code; and

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

16.  The exercise of the powers conferred by article 37 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

17.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—

(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 purposes of those works), or other property of an operator; or

(b)there is any interruption in the supply of the service provided 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 expenses, 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.

(3) 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 who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) 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 64 (arbitration).

(5) 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 (street works in England and Wales) of the 1991 Act; or

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

(6) 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 laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 3FOR THE PROTECTION OF DRAINAGE AUTHORITIES

Application

18.  The provisions of this Part have effect for the protection of the drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority.

Interpretation

19.  In this Part of this Schedule—

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

“drainage authority” means in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses)(8) of the Land Drainage Act 1991;

“drainage work” means any ordinary watercourse and includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse which is the responsibility of the drainage authority;

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

“plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and

“specified work” means any of the following works carried out in relation to any ordinary watercourse—

Approval of plans

20.—(1) Before commencing construction of a specified work, the undertaker must submit to the drainage authority plans of the specified work and such further particulars available to it as the drainage authority may within 14 days of the submission of the plans reasonably request.

(2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph.

(3) A specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under paragraph 28 (disputes).

(4) Any approval of the drainage authority required under this paragraph—

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been given if it is neither given nor refused within 28 days of the submission of the plans for approval, or submission of further particulars (where required by the drainage authority under sub-paragraph (1)) whichever is the later; and

(c)may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, ordinary watercourse or for the prevention of flooding.

(5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.

21.  Without limiting paragraph 20 (approval of plans), the requirements which the drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, 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 drainage work against damage by reason of any specified work; or

(b)to secure that the efficiency of any drainage work for flood defence and land drainage purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of any specified work.

Specified and protective works

22.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 21, must be constructed—

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

(b)to the reasonable satisfaction of the drainage authority, and an officer of the drainage authority is entitled to watch and inspect the construction of such works at all reasonable times and on reasonable notice.

(2) The undertaker must give to the drainage authority—

(a)not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and

(b)notice in writing of its completion not later than 7 days after the date of completion.

(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work to which the protective works relate.

(4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the drainage 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 agreed, to restore the site to its former condition to such extent and within such limits as the drainage 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 on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any reasonable expenditure incurred by it 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 drainage authority must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 28 (disputes).

Maintenance of drainage works

23.—(1) Subject to sub-paragraph (5), the undertaker must from the commencement of the construction of the specified work until the date falling 12 months from the date of completion of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation on land held by the undertaker for the purpose of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of the work, or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove the specified work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.

(3) Subject to sub-paragraph (4) and paragraphs 25 and 26 if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is reasonably necessary for such compliance and may recover any reasonable expenditure reasonably incurred by it in so doing from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 28 (disputes).

(5) This paragraph does not apply to—

(a)drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and

(b)any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

Expenses and indemnity

24.  Subject to paragraphs 25 and 26 and sub-paragraph 23(5)(b) (maintenance of drainage works), if, by reason of the construction of a specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes or land drainage is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker as soon as reasonably practicable to the reasonable satisfaction of the drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.

25.  The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur in—

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

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

(c)subject at all times to receiving the prior written approval of the undertaker, in carrying out any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified work.

26.—(1) Without limiting the other provisions of this Part, the undertaker must make reasonable compensation to the drainage authority from all claims, demands, proceedings, costs, damages, expenses or loss, which may be made or taken against, recovered from, or incurred by, the drainage authority by reason of—

(a)any damage to any drainage work;

(b)any raising or lowering of the water table in land adjoining the authorised project or any sewers, drains and watercourses; or

(c)any flooding or increased flooding of any such lands,

caused by the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the specified work.

(2) The drainage authority must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(3) The fact that any act or thing may have been done by the drainage authority on behalf of the undertaker or in accordance with a plan approved or deemed to have been approved by the drainage authority or in accordance with any requirement of the drainage authority or under its supervision does not, subject to sub-paragraph (4), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless the drainage authority fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.

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

27.  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 drainage authority or to its satisfaction does not (in the absence of negligence on the part of the drainage authority, its officers, contractors or agents), relieve the undertaker from any liability under this Part.

Disputes

28.  Any dispute arising between the undertaker and the drainage authority under this Part is to be determined by arbitration in accordance with article 64 (arbitration).

PART 4FOR THE PROTECTION OF RAILWAY INTERESTS

Application

29.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Company.

Interpretation

30.  In this Part of this Schedule—

“Company” means Network Rail or, as the case may be, HS1;

“concession agreement” means the agreement between the Secretary of State for Transport and HS1 Limited for the design, construction, financing, operation, repair and maintenance of High Speed 1, as amended or supplemented from time to time;

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

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

“High Speed 1” means the high speed rail link between St Pancras in the London Borough of Camden and the Channel Tunnel Portal at Castle Hill, Folkestone, Kent and the international stations at St Pancras, Stratford and Ebbsfleet and Ashford and all associated track, facilities and installations, including the Waterloo Connection and the maintenance depots at Temple Mills and Singlewell;

“HS1” means High Speed One (HS1) Limited (company number 06045862, whose registered office is at 5^th Floor, Kings Place, 90 York Way, London N1 9AG) and any associated company of High Speed One (HS1) Limited which holds property for railway purposes and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.)(9) of the Companies Act 2006)) the holding company of High Speed One (HS1) Limited, a subsidiary of High Speed One (HS1) Limited or another subsidiary of the holding company of High Speed One (HS1) Limited;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail by the Secretary of State in exercise of powers under section 8 (licences)(10) of the Railways Act 1993;

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“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;

“protective works” means any works specified by the engineer under paragraph 32;

“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 the Company and—

“specified work” means so much of any of the authorised development as is, or is to be, situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

31.—(1) Where under this Part of this Schedule the Company is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that it must comply with any relevant railway operational procedures, any obligations under statute and in the case of—

(a)Network Rail, its network licence; and

(b)HS1, the concession agreement.

(2) In so far as any specified work or the acquisition or use of railway property or rights over railway property is or may be subject to railway operational procedures, the Company 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 its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development under this Order.

32.—(1) The undertaker must, before commencing construction of any specified work, supply to the Company 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 under article 64 (arbitration).

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to the Company the engineer has not intimated disapproval of those plans and the grounds of disapproval, the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 14 days beginning with the date upon which the engineer receives written notice from the undertaker and if, by the expiry of the further 14 days period specified in the written notice 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 14 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), the Company gives notice to the undertaker that it desires itself to construct any part of a specified work which in the reasonable opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of the Company then, if the undertaker desires such part of the specified work to be constructed, the Company must construct it (together with any adjoining part of the specified work which the undertaker reasonably requires to be constructed with that work) with all reasonable dispatch 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, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable 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 the Company 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 the Company, or by the undertaker, if the Company so desires, and such protective works must be carried out at the expense of the undertaker in either case with all reasonable dispatch 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 the engineer’s reasonable satisfaction.

33.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 32(4) 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 32;

(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 reasonably 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 the Company or the traffic on it 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 or a protective work, the undertaker must, regardless of any such approval, make good such damage and must pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may sustain by reason of any such damage, interference or obstruction.

(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 the Company or its servants, contractors or agents, or any liability on the Company with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or the undertaker’s employees, contractors or agents.

34.—(1) The undertaker must—

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

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

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

36.—(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work or a protective work, or during a period of 12 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of the Company, such alterations and additions may be carried out by the Company and if the Company gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified, including details of the reasonable cost of carrying out - and in the case of any permanent alterations or additions, maintaining, working and, when necessary, renewing - those alterations or additions in the notice), the undertaker must pay to the Company the reasonable cost 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 properly and reasonably incurred by the Company in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work or a protective work by the undertaker, the Company gives notice to the undertaker that the Company desires itself to construct that part of the specified work or protective work which in the reasonable opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of the Company then, if the undertaker decides that part of the specified work or protective work is to be constructed, the Company must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any such approval of a specified work or protective work under paragraph 32(3), pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may suffer by reason of the execution by the Company of that specified work or protective work.

(3) 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 is to be set off against any sum payable by the undertaker to the Company under this paragraph.

(4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 37(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

37.  The undertaker must repay to the Company all reasonable fees, costs, charges and expenses properly and reasonably incurred by the Company—

(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 32(3) or in constructing any protective works under the provisions of paragraph 32(4) 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 reasonable approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work or a protective work;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is 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 or a protective work;

(d)in respect of any special traffic working resulting from any speed restrictions which may in the reasonable opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or a protective work or from the substitution of 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 or a protective work.

38.—(1) In this paragraph—

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

“the Company’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 the Company 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 applies to EMI only to the extent that such EMI is not attributable to any change to the Company’s apparatus carried out after approval of plans under paragraph 32(1) for the relevant part of the authorised development giving rise to EMI.

(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 the Company (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 the Company as early as reasonably practicable to identify all of the Company’s apparatus which may be at risk of EMI, and must continue to consult with the Company (both before and after formal submission of plans under paragraph 32(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

(c)the Company must allow the undertaker reasonable facilities for the inspection of the Company’s apparatus identified under sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to the Company’s apparatus, the Company must not withhold or delay its consent unreasonably to modifications of the Company’s apparatus, but the means of prevention and the method of their execution may be selected at the reasonable discretion of the Company, and in relation to such modifications paragraph 32(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the completion of the authorised development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by the Company 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) 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 the Company’s apparatus.

(7) In the event of EMI having occurred—

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

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

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

(8) Where the Company approves modifications to the Company’s apparatus under sub-paragraphs (5) or (6)—

(a)the Company must allow the undertaker reasonable facilities for the inspection of the relevant part of the Company’s apparatus; and

(b)any modifications to the Company’s apparatus approved under those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 33.

(9) For the purpose of paragraph 37(a) any modifications to the Company’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(10) In relation to any dispute arising under this paragraph the reference in article 64 (arbitration) to a single arbitrator to be agreed between the parties is to be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.

39.  If at any time after the completion of a specified work or a protective work, not being a work vested in the Company, the Company gives notice to the undertaker informing it that the state of maintenance of any part of the specified work or protective work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work or protective work in such state of maintenance as to not adversely affect railway property.

40.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work or a protective work in the vicinity of any railway belonging to the Company unless the undertaker has first consulted the Company and the undertaker must comply with the Company’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.

41.  Any additional expenses which the Company may properly and 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 or a protective 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 the Company.

42.—(1) The undertaker must pay to the Company all reasonable and properly incurred costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (but subject always to the remaining provisions of this paragraph and to article 67 (no double recovery) which may be occasioned to or reasonably incurred by the Company—

(a)by reason of the construction or maintenance of a specified work or a protective work or the failure of it; or

(b)by reason of any act or omission of the undertaker or of any person in the undertaker’s employ or of the undertaker’s contractors or others whilst engaged upon a specified work or a protective work,

and the undertaker must indemnify and keep indemnified the Company from and against all claims and demands arising out of or in connection with a specified work or a protective work or any such failure, act or omission; and the fact that any act or thing may have been done by the Company 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 the Company 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) The Company must—

(a)give the undertaker written notice of any such claims or demands as soon as reasonably possible after the Company became aware of any such claims or demands;

(b)not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior 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);

(c)take all reasonable steps to mitigate any liabilities relating to such claims or demands; and

(d)keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.

(3) In no circumstances is the undertaker liable to the Company under sub-paragraph (1) for any indirect or consequential loss or loss of profits, except that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—

(a)the Company is liable to make payment of the relevant costs pursuant to the terms of an agreement between the Company and a train operator; and

(b)the existence of that agreement and the extent of the Company’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker, but not otherwise.

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

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

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) properly and reasonably incurred by each train operator as a consequence of any restriction of the use of the Company’s railway network as a result of the construction, maintenance or failure of a specified work or a protective 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 (licences) of the Railways Act 1993.

43.  The Company 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, future cost forecasts 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 42 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 under this Part of this Schedule (including any claim relating to those relevant costs).

44.  In the assessment of any sums payable to the Company 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 the Company 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.

45.  The undertaker and the Company may, subject in the case of Network Rail to compliance with the terms of its network licence and in the case of HS1 to compliance with the terms of the concession agreement, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a)any railway property shown on the works plans or 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 the Company relating to any railway property or any lands, works or other property referred to in this paragraph.

46.—(1) 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.

(2) Sub-paragraph (3) applies in respect of the land comprised in the plots listed in the second column of the table only.

(3) In respect of the plots of land to which this sub-paragraph applies, the provisions of article 25 (compulsory acquisition of land) apply in respect of the specified airspace of the land only.

47.  The undertaker must no later than 28 days from the date that the documents referred to in article 62 (certification of documents, etc.) are submitted to and certified by the Secretary of State in accordance with that article, provide a set of those documents to the Company in the form of a computer disc with read only memory.

PART 5FOR THE PROTECTION OF SPECIFIED GAS UNDERTAKERS

Application

48.  For the protection of the gas undertakers referred to in this Part of this Schedule, the following provisions will, unless otherwise agreed in writing between the undertaker and the gas undertaker concerned, have effect.

Interpretation

49.  In this Part of this Schedule—

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

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by the gas undertaker for the purposes of its undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of the gas undertaker for the purposes of its undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“Cadent Gas Limited” means Cadent Gas Limited (company number 10080864), whose registered office is at Pilot Way, Ansty, Coventry, England CV7 9JU;

“commence” and “commencement” include any surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground conditions, the receipt and erection of construction plant and equipment, and non-intrusive investigations for the purpose of assessing ground conditions;

“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 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;

“facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;

“functions” includes powers and duties;

“gas supply” means the transmission, transportation, supply or storage of gas;

“gas undertaker” means Cadent Gas Limited or Southern Gas Networks plc as the case may be and includes any successor in title or any successor as a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986(11);

“ground mitigation scheme” means a scheme approved by the gas undertaker (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, requires the undertaker to submit for the gas undertaker’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” have effect as if the gas undertaker’s existing apparatus was authorised development and as if the term maintain includes protect and use;

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

“Southern Gas Networks” means Southern Gas Networks Plc (company number 05167021, whose registered office is at St Lawrence House, Station Approach, Horley, Surrey, RH6 9HJ);

“specified works” means any of the authorised development or activities (including maintenance) undertaken in association with the authorised development which—

“undertaking” means the rights, duties and obligations of the gas undertaker as a public gas transporter within the meaning of section 7(12) of the Gas Act 1986.

On Street apparatus

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

(a)paragraphs 51(on street apparatus), 56 (retained apparatus: protection of the gas undertaker), 57 (expenses) and 58 (indemnity); and

(b)where sub-paragraph (2) applies, paragraphs 54 (removal of apparatus) and 55 (facilities and rights for alternative apparatus).

(2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.

(3) Paragraph 57 (expenses) does not apply to any part of the authorised development that affects the gas undertaker’s apparatus in a street and which constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a)any allowable costs of the measures needing to be taken in relation to that apparatus in consequence of the authorised development, or in order to facilitate their execution, must be determined in accordance with Part 3 and section 85 (sharing of cost of necessary measures) of that Act, and any regulations for the time being having effect under that section; and

(b)any allowable costs are to be borne by the undertaker and the gas undertaker in such proportions as may be prescribed by any such regulations.

Apparatus of the gas undertaker in stopped up streets

51.—(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), if the gas undertaker has any apparatus in the street or accessed via that street the gas undertaker is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the gas undertaker, or procure the granting to the gas undertaker of, legal easements reasonably satisfactory to the gas undertaker in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph affects any right of the undertaker or of the gas undertaker to require the removal of that apparatus under paragraph 54 (removal of apparatus).

(2) Notwithstanding the temporary closure, alteration, diversion or restriction of use of any street under the powers of article 12 (temporary closure, alteration, diversion and restriction of use of streets), the gas undertaker will be at liberty at all times to take all necessary access across any such closed, restricted, altered or diverted street and 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 closure, alteration, diversion or restriction of use in respect of any apparatus which at the time of the stopping up or diversion was in that street.

Protective works to buildings

52.  The undertaker must exercise the powers conferred by article 20 (protective work to land and buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of the gas undertaker (such consent not to be unreasonably withheld or delayed).

Acquisition of land

53.—(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 interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of the gas undertaker otherwise than by agreement.

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

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

(4) Any agreement or consent granted by the gas undertaker under paragraph 56 (retained apparatus: protection of the gas undertaker) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

(5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement or other interest of the gas undertaker in such decommissioned apparatus and release the gas undertaker 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 right or interest of the gas undertaker (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 54 (removal of apparatus) do not apply, the undertaker must, unless the gas undertaker agrees otherwise—

(a)retain any notice of the gas undertaker’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 the gas undertaker’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 the gas undertaker’s easement, right or other interest in relation to such acquired land.

Removal of apparatus

54.—(1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 53 (acquisition of land), 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 the gas undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the facilities and rights referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of the gas undertaker and in accordance with sub-paragraph (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 the gas undertaker 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 the gas undertaker reasonably needs to move or remove any of its apparatus) the undertaker must afford to the gas undertaker to its satisfaction (taking into account paragraph 55(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—

(a)for the construction of alternative apparatus; and

(b)subsequently for the maintenance of that apparatus.

(3) If 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 gas undertaker must, 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 does not extend to the requirement for the gas undertaker 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 the gas undertaker and the undertaker.

(5) The gas undertaker must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to the gas undertaker of such facilities and rights as are referred to in sub-paragraph (2) or (3), 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

55.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for the gas undertaker 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 the gas undertaker and must be no less favourable on the whole to the gas undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by the gas undertaker.

(2) If the facilities and rights to be afforded by the undertaker and agreed with the gas undertaker 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 the gas undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed then the terms and conditions to which those facilities and rights are subject may be referred to arbitration in accordance with paragraph 62 of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to the gas undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of the gas undertaker

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

(2) The plan to be submitted to the gas undertaker 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 specified works until the gas undertaker has given written approval of the plan so submitted (and the ground monitoring scheme if required).

(4) Any approval of the gas undertaker required under sub-paragraph (3)—

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

(b)must not be unreasonably withheld or delayed and the gas undertaker must meaningfully engage with the undertaker within 28 days of the date of submission of the plan under sub-paragraph (1).

(5) The gas undertaker may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its 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) Specified works must only be executed in accordance with—

(a)the plan submitted under sub-paragraph (1) (and the ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and the gas undertaker; and

(b)all conditions imposed under sub-paragraph (4)(a), and the gas undertaker will be entitled to watch and inspect the execution of those works.

(7) Where the gas undertaker 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, must be carried out to the gas undertaker’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.

(8) If the gas undertaker, 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 48 to 50 and 53 to 55 apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 54(2) (removal of apparatus).

(9) Nothing in this paragraph 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 specified works, a new plan (and the ground monitoring scheme if required), instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan (and the ground monitoring scheme if required).

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development (including such an event attributable to its maintenance)—

(a)the undertaker must implement an appropriate ground mitigation scheme; and

(b)the gas undertaker retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 57 (expenses).

(11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to the gas undertaker notice as soon as is reasonably practicable and a plan of those works and must comply with the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances.

(12) In this paragraph, “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

57.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to the gas undertaker on demand, all charges, costs and expenses reasonably anticipated or reasonably incurred by the gas undertaker 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 development including without limitation—

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

(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 54(3) (removal of apparatus) if it elects to do so; or

(ii)exercising any compulsory purchase powers under this Order transferred to or benefitting the gas undertaker;

(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 sub-paragraph 56(6) (retained apparatus: protection of the gas undertaker).

(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 62 (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 gas undertaker by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) 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 the gas undertaker 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 the gas 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.

Indemnity

58.—(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 development (including works carried out under article 20 (protective work to land and buildings)) 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 the undertaker) 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 development) or property of the gas undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the gas undertaker, or the gas undertaker becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand accompanied by an invoice or claim from the gas undertaker, the cost reasonably incurred by the gas undertaker in making good such damage or restoring the supply; and

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

(2) The fact that any act or thing may have been done by the gas undertaker on behalf of the undertaker or in accordance with a plan approved by the gas undertaker or in accordance with any requirement of the gas undertaker 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 this sub-paragraph (1) unless the gas undertaker 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 the gas undertaker, its officers, servants, contractors or agents;

(b)any part of the authorised development carried out by the gas undertaker in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 8 (consent to transfer benefit of Order); and

(c)any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.

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

Enactments and agreements

59.  Except where this Part of this Schedule provides otherwise, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and the gas undertaker 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

60.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or the gas undertaker requires the removal of apparatus under paragraph 54(2) (removal of apparatus) or the gas undertaker makes requirements for the protection or alteration of apparatus under paragraph 56 (retained apparatus: protection of the gas undertaker), the undertaker must use its best 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 the gas undertaker’s undertaking and the gas undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the gas undertaker’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, it must not be unreasonably withheld or delayed.

Access

61.  If in consequence of any agreement reached in accordance with paragraph 53(1) (acquisition of land) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable the gas undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

62.  Save for differences or disputes arising under paragraph 54(2) and (4) (removal of apparatus) any difference or dispute arising between the undertaker and the gas undertaker under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and the gas undertaker, be determined by arbitration in accordance with article 64 (arbitration).

Notices

63.  Notwithstanding article 63 (service of notices) any plans submitted to the gas undertaker by the undertaker pursuant to paragraph 56(1) (retained apparatus: protection of the gas undertaker) must be sent via email and post to such email and postal addresses as the gas undertaker may from time to time appoint for that purpose and notify to the undertaker in writing.

PART 6FOR THE PROTECTION OF NATIONAL GAS TRANSMISSION PLC AS GAS UNDERTAKER

Application

64.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid.

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 8 (consent to transfer benefit of Order)—

(a)any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and

(b)written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant.

(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid (but see paragraph 74(3)(b) (indemnity)).

Interpretation

65.  In this Part of this Schedule—

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

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by National Grid for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“commence” and “commencement” in paragraph 72 (retained apparatus: protection of the gas undertaker) of this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

“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 or replace existing easements, agreements, 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 National Grid (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, requires the undertaker to submit for National Grid’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 National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

“National Grid ” means National Gas Transmission Plc (company number 02006000, whose registered office is at National Grid House, Warwick Technology Park, Gallows Hill, Warwick, CV34 6DA) or any successor as a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986;

“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; and

“specified works” means any of the authorised development or activities undertaken in association with the authorised development (including maintenance) which—

66.  Except for paragraphs 67 (apparatus of National Grid in stopped up streets), 72 (retained apparatus: protection of gas undertaker), 73 (expenses) and 74 (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 National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus of National Grid in stopped up streets

67.—(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 70 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 72 (retained apparatus: protection of the gas undertaker).

(2) (Notwithstanding the temporary closure, alteration, diversion or restriction of use of any street under the powers of article 12 (temporary closure alteration, diversion and restriction of use of streets), National Grid 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, alteration, diversion or restriction of use was in that street.

Protective works to buildings

68.  The undertaker must exercise the powers conferred by article 20 (protective work to land and buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid (such consent not to be unreasonably withheld).

Acquisition of land

69.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any interest in land or apparatus or override any easement or other interest of National Grid otherwise than by agreement.

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

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

(4) Any agreement or consent granted by National Grid under paragraph 72 (retained apparatus: protection of the gas undertaker) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

70.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid 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 National Grid in accordance with sub-paragraphs (2) to (5).

(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 National Grid advance written notice of that requirement, together with a plan 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 National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its reasonable satisfaction (taking into account paragraph 71(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—

(a)for the construction of alternative apparatus in other land of, or secured by, the undertaker; and

(b)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 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, National Grid must, 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 obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it 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 National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to National Grid 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.

Facilities and rights for alternative apparatus

71.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection 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 National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker 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 National Grid 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 matter may be referred to arbitration in accordance with paragraph 78 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of gas undertaker

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

(2) The plan to be submitted to National Grid 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 specified works until National Grid has given written approval of the plan so submitted.

(4) Any approval of National Grid 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) National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must only be executed in accordance with—

(a)the plan, submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and National Grid; and

(b)such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(7) Where under sub-paragraph (6) National Grid requires any protective works to be carried out by itself or by the undertaker such protective works (whether of a temporary or permanent nature) must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) If National Grid 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, paragraphs 64 to 66 and 69 to 71 apply as if the removal of the apparatus had been required by the undertaker under paragraph 70(2) (removal of apparatus).

(9) Nothing in this paragraph 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 specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development or its maintenance—

(a)the undertaker must implement an appropriate ground mitigation scheme; and

(b)National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 73 (expenses).

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5) to (7) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11), “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

73.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid 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 development or its maintenance including without limitation—

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

(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 70(3) (removal of apparatus); or

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

(b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(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.

(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 78 (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 National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances 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) Any amount which apart from this sub-paragraph would be payable to National Grid 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 National Grid 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

74.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development 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 development) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

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

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid 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 National Grid, its officers, servants, contractors or agents;

(b)any part of the authorised development (including maintenance) carried out by National Grid in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 8 (consent to transfer benefit of Order).

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

(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

Enactments and agreements

75.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid 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

76.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 70(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 72 (retained apparatus: protection of gas undertaker), the undertaker must use its best 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 National Grid’s undertaking and National Grid must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the undertaker’s or National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this schedule, or agreement is required to be reached between the parties under this schedule, it must not be unreasonably withheld or delayed.

Access

77.  If in consequence of the agreement reached in accordance with paragraph 69(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

78.  Save for differences or disputes arising under paragraphs 70(2) and (4) (removal of apparatus), and 71(1) (retained apparatus: protection of the gas undertaker) any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 64 (arbitration).

Notices

79.  Notwithstanding article 63 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 72 (retained apparatus: protection of the gas undertaker) must be sent to National Grid LSBUD at https://lsbud.co.uk/ or assetprotection@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 7FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY TRANSMISSION PLC AS ELECTRICITY UNDERTAKER

Application

80.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid.

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 8 (consent to transfer benefit of Order)—

(a)any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and

(b)written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant.

(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid (but see paragraph 90(3)(b) (indemnity)).

Interpretation

81.  In this Part of this Schedule—

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

“apparatus” means any electric lines or electrical plant as defined in section 64 of the Electricity Act 1989, belonging to or maintained by National Grid together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“commence” and “commencement” in paragraph 88 (retained apparatus: protection of the electricity undertaker) of this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

“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 or replace existing easements, agreements, 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 National Grid (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, requires the undertaker to submit for National Grid’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 National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

“National Grid ” means National Grid Electricity Transmission Plc (company number 02366977, whose registered office is at 1-3 Strand, London, WC2N 5EH) or any successor as a licence holder within the meaning of Part 1 of the Electricity Act 1989;

“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; and

“specified works” means any of the authorised development or activities undertaken in association with the authorised development (including maintenance) which—

82.  Except for paragraphs 83 (apparatus of National Grid in stopped up streets), 88 (retained apparatus: protection of electricity undertaker), 89 (expenses) and 90 (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 National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus of National Grid in stopped up streets

83.—(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 86 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 88 (retained apparatus: protection of electricity undertaker).

(2) (Notwithstanding the temporary closure, alteration, diversion or restriction of use of any street under the powers of article 12 (temporary closure alteration, diversion and restriction of use of streets), National Grid 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, alteration, diversion or restriction of use was in that street.

Protective works to buildings

84.  The undertaker must exercise the powers conferred by article 20 (protective work to land and buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid (such consent not to be unreasonably withheld).

Acquisition of land

85.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any interest in land or apparatus or override any easement or other interest of National Grid otherwise than by agreement.

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

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

(4) Any agreement or consent granted by National Grid under paragraph 88 (retained apparatus: protection of electricity undertaker) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

86.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid 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 National Grid in accordance with sub-paragraphs (2) to (5).

(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 National Grid advance written notice of that requirement, together with a plan 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 National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its reasonable satisfaction (taking into account paragraph 87(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—

(a)for the construction of alternative apparatus in other land of, or secured by, the undertaker; and

(b)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 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, National Grid must, 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 obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it 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 National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to National Grid 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.

Facilities and rights for alternative apparatus

87.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection 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 National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker 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 National Grid 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 matter may be referred to arbitration in accordance with paragraph 94 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of electricity undertaker

88.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity apparatus.

(2) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid 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;

(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;

(f)any intended maintenance regimes;

(g)an assessment of risks of rise of earth issues; and

(h)if reasonably required by National Grid, a ground monitoring scheme in respect of those works.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—

(a)details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b)demonstration that pylon foundations will not be affected prior to, during and post construction;

(c)details of load bearing capacities of trenches;

(d)details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e)a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;

(f)written details of the operations and maintenance regime for any cable, including frequency and method of access;

(g)assessment of earth rise potential if reasonably required by National Grid’s engineers; and

(h)evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to 26 tonnes in weight.

(4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraph (4)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and,

(b)must not be unreasonably withheld.

(6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works executed under sub-paragraphs (2) or (3) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where under sub-paragraph (6) National Grid 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, must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraphs (6) or (8) 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 80 to 82 and 85 to 87 apply as if the removal of the apparatus had been required by the undertaker under paragraph 86(2) (removal of apparatus).

(10) Nothing in this paragraph 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 specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(11) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development or its maintenance—

(a)the undertaker must implement an appropriate ground mitigation scheme; and

(b)National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 89 (expenses).

(12) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6) to (8) insofar as is reasonably practicable in the circumstances.

(13) In sub-paragraph (12) “emergency works” means works whose execution at the time when they are executed is required in order to put an end to or to prevent the occurrence of circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

89.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid 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 development or its maintenance including without limitation—

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

(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 86(3) (removal of apparatus); or

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

(b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(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.

(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 94 (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 National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances 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) Any amount which apart from this sub-paragraph would be payable to National Grid 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 National Grid 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

90.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development 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 development) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

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

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid 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 National Grid, its officers, servants, contractors or agents;

(b)any part of the authorised development (including maintenance) carried out by National Grid in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 8 (consent to transfer benefit of Order).

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

(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

Enactments and agreements

91.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid 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

92.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 86(2) (rremoval of apparatus) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 88 (retained apparatus: protection of electricity undertaker), the undertaker must use its best 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 National Grid’s undertaking and National Grid must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the undertaker’s or National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this schedule, or agreement is required to be reached between the parties under this schedule, it must not be unreasonably withheld or delayed.

Access

93.  If in consequence of the agreement reached in accordance with paragraph 85(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

94.  Save for differences or disputes arising under paragraphs 86(2)and (4) (removal of apparatus), and 87(1) (facilities and rights for alternative apparatus) any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 64 (arbitration).

Notices

95.  Notwithstanding article 63 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 88 (retained apparatus: protection of electricity undertaker) must be sent to National Grid LSBUD at https://lsbud.co.uk/ or assetprotection@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 8FOR THE PROTECTION OF THE PORT OF LONDON AUTHORITY

Application

96.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the PLA, for the protection of the PLA in relation to the construction of the authorised development and, within any maintenance period defined in article 36 (temporary use of land for maintaining the authorised development), any maintenance of any part of the authorised development.

Interpretation

97.  In this Schedule—

“begin” means beginning to carry out any material operation (as defined in section 56(4) (time when development begun) of the 1990 Act) forming part of the authorised development including preliminary works (as defined in Schedule 2 of this Order) including any ground investigations in the river Thames;

“construction” includes execution, placing, altering, replacing, relaying, removal, renewal and works of maintenance within a maintenance period defined in article 36 (temporary use of land for maintaining the authorised development) and, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation, and “construct” and “constructed” are to be construed accordingly;

“Harbour Master” has the same meaning as “harbourmaster” in section 2(1) of the 1968 Act;

“plans” includes navigational risk assessments, plans, sections, elevations, drawings, specifications, programmes, construction methods and descriptions including, where applicable, such relevant hydraulic information about the river Thames as may be reasonably requested by the PLA;

“preliminary navigational risk assessment” means the document of that description listed in Schedule 16 (documents to be certified) and certified by the Secretary of State as the preliminary navigational risk assessment and, in connection with any ground investigations in the river Thames, means the “Lower Thames Crossing Ground Investigations Navigational Risk Assessment” (which forms Appendix F of the preliminary navigational risk assessment);

“specified function” means any function of the undertaker under this Order (except any function under article 25 (compulsory acquisition of land), article 28 (compulsory acquisition of rights and imposition of restrictive covenants), article 33 (acquisition of subsoil or airspace only)) the exercise of which may affect the river Thames or any function of the PLA;

“specified work” means any part of the authorised development (which for this purpose includes the removal of any part of the authorised development), which—

including any projection over the river Thames by any authorised work or any plant or machinery or any dredging (as defined in the 1968 Act) in the river Thames;

“temporary outfall” means the temporary outfall in the river Thames referenced in paragraph 5(2)(a) of Schedule 15 (deemed marine licence) to this Order; and

“tunnelling works” means so much of Work No. 4A as is carried out wholly under the bed of the River Thames.

Approval of detailed design (excluding the tunnelling works)

98.—(1) The undertaker must not exercise any specified function or begin the construction of any specified work until plans of the work or function have been approved in writing by the PLA, but the PLA’s approval is not required under this paragraph for any tunnelling works forming part of a specified work.

(2) The undertaker must submit to the PLA plans of the specified work or specified function and such further particulars as the PLA may, within 20 business days starting with the day on which the plans are submitted under this sub-paragraph, reasonably require, and the particulars so supplied are to provide all information necessary to enable the PLA to determine whether approval should be given and, if so, whether conditions should be imposed.

(3) Insofar as the plans submitted under sub-paragraph (2) include a navigational risk assessment, the undertaker must consult the Port of Tilbury London Limited on that assessment prior to submission under sub-paragraph (2) and that assessment must be in all material respects in accordance with the preliminary navigational risk assessment (including where relevant the incorporation of embedded risk controls and additional risk controls identified in the preliminary navigational risk assessment) unless otherwise agreed by the PLA.

(4) Any approval of the PLA required under this paragraph must not be unreasonably withheld but may be given subject to such reasonable modifications, terms and conditions as the PLA may make for the protection of—

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

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

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

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

(a)the proposed location of any temporary work and its dimensions or the location where the specified function is proposed to be exercised;

(b)the programming of temporary works or the exercise of the specified function including the timing and management of giving up temporary possession;

(c)the removal of any temporary works and the undertaking by the undertaker of any related work or operation that the PLA considers to be necessary for the purpose of removing or preventing any obstruction to navigation;

(d)the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the specified work or specified function; and

(e)the expiry of the approval if the undertaker does not commence construction or carrying out of the approved specified work or exercise of the specified function within a prescribed period.

(6) An application for approval under this paragraph is deemed to have been refused if it is neither given nor refused within 30 business days of the specified day.

(7) An approval of the PLA under this paragraph is not deemed to have been unreasonably withheld if approval within the time limited by sub-paragraph (6) has not been given pending the outcome of any consultation on the approval in question that the PLA is obliged to carry out in the proper exercise of its functions.

(8) The undertaker must carry out all operations for the construction of any specified work or the specified function without unnecessary delay and to the reasonable satisfaction of the PLA so that traffic in, or the flow or regime of, the river Thames, and the exercise of the PLA’s functions, do not suffer more interference than is reasonably practicable. The PLA is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey those operations and the undertaker must provide all reasonable facilities to enable that inspection and survey to take place.

(9) In this paragraph, “specified day” means—

(a)the day on which the plans of the specified work or specified function referred to in sub-paragraph (2) are provided to the PLA; or

(b)the day on which the undertaker provides the PLA with the further particulars requested by the PLA under sub-paragraph (2),

whichever is later.

Design of, and coordination of, tunnelling works to ensure existing and future use of river Thames

99.—(1) The detailed design and construction of the tunnelling works in the river Thames must—

(a)provide for a protected dredged navigational channel depth of 12.5m below chart datum with an additional 0.5m to allow for over-dredging attributable to standard dredging methodology;

(b)ensure that that channel depth can be maintained where scour protection is required; and

(c)take into account the need to protect the existing and future use of the river Thames, including reasonable mitigation of risks to the river Thames and the functions of the PLA during construction of the tunnelling works and operation of the authorised development.

(2) The undertaker must, in a timely manner, consult with the PLA in relation to matters related to or may affect their functions—

(a)when preparing the detailed design and construction methodology of the tunnelling works under the river Thames, on—

(i)the construction methodology for those works insofar as relevant to the existing and future use of the river Thames and the PLA’s functions;

(ii)the measures to be taken in connection with those works, including in respect of unexploded ordnance in the river Thames having regard to the need to protect the existing and future use of the river Thames; and

(b)during construction of the tunnelling works under the river Thames, on such matters regarding those works as the PLA may reasonably request including, but not limited to, tunnel monitoring, construction and baseline monitoring data.

(3) The undertaker must have reasonable regard to any representations made by the PLA under sub-paragraph (2) and provide a written account of how any such representations have been taken into account.

(4) Where the PLA are not reasonably satisfied in relation to the written account provided in relation to the matters under sub-paragraph (2)(a)(ii), the senior representatives from the PLA and the undertaker must seek to resolve the dispute through a meeting between the parties promptly and in any event within 10 business days, and if the PLA is not reasonably satisfied following that meeting it may within 20 business days of the specified day, notify the undertaker that the PLA is in dispute with the undertaker and accordingly refer the matter to arbitration under paragraph 116 (disputes) to review the measures to be implemented having regard to protecting the existing and future use of the river Thames.

(5) Unless sub-paragraph (6) applies, in the event that a matter is referred to arbitration under sub-paragraph (4), the undertaker must not begin any tunnelling work to which a dispute under sub-paragraph (4) relates until such arbitration is settled by the arbitrator (and where sub-paragraph (6) applies, the arbitrator must ensure its decision does not conflict with the Secretary of State’s decision under that sub-paragraph).

(6) This sub-paragraph applies where the undertaker provides the Secretary of State with PLA’s representations, and the written account required under sub-paragraph (3), and the Secretary of State agrees any tunnelling work to which a dispute under sub-paragraph (4) relates can begin.

(7) The undertaker must, no later than three months prior to the expected commencement of the tunnelling works, provide the PLA with a point of contact for continuing liaison and co-ordination throughout the construction of the tunnelling works and the undertaker must notify the PLA of the date of—

(a)the tunnelling works beginning as soon as reasonably practicable and, in any event, 28 days prior to beginning of those works;

(b)the completion of the tunnelling works as soon as reasonably practicable after the completion of those works;

(c)the beginning and end of construction of each of the tunnel bore for northbound traffic, the tunnel bore for southbound traffic and each cross-passage connecting the two tunnels;

(d)any suspension or resumption of tunnelling works which may affect the PLA’s functions; and

(e)any changes to the planned tunnelling works which may affect the PLA’s functions.

(8) In this paragraph, “construction methodology” includes construction methods and measures for management of construction risks.

Construction of tunnelling works

100.—(1) Prior to commencing construction of the tunnelling works and as soon as reasonably practicable after they each become available, the undertaker must provide to the PLA the following—

(a)an Approval in Principle, or similar, demonstrating that the design requirement has been incorporated into the detailed design of the tunnelling works;

(b)a Design Certificate demonstrating that the detailed design of the tunnelling works has satisfied the design requirement;

(c)a Check Certificate, completed by an independent person, demonstrating that the detailed design of the tunnelling works has satisfied the design requirement;

(d)a river use and navigation emergency response plan relating to the tunnelling works in so far as they may affect the river Thames or the PLA’s functions, which must include reasonable notification to the PLA of any risks arising which may affect the PLA’s assets and operations; and

(e)a management, monitoring and reporting plan relating to the tunnelling works in so far as they may affect the river Thames and the PLA’s functions, which must include a mechanism by which the PLA can reasonably require any additional relevant monitoring information concerning such risks.

(2) The undertaker must supply to the PLA—

(a)any of the drawings referred to in either of the certificates specified in sub-paragraphs (2)(b) and (2)(c); and

(b)such other information relating to any of the documents provided under sub-paragraph (1) or (2)(a) as the PLA may reasonably require,

upon request made by the PLA within 10 business days of the day on which the PLA receives the document that gives rise to the request.

(3) If, following receipt of any of the documents supplied under sub-paragraphs (2) and (3), the PLA is not reasonably satisfied that the design requirement will be met, senior representatives from the PLA and the undertaker must seek to resolve the dispute through a meeting between the parties promptly and in any event within 10 business days, and if the PLA is not reasonably satisfied following that meeting it may within 20 business days of the specified day, notify the undertaker that the PLA is in dispute with the undertaker and accordingly refer the matter to arbitration under paragraph 116 to review the proposed detailed design of the tunnelling works so far as it concerns the design requirement.

(4) In this paragraph—

(a)“Approval in Principle”, “Check Certificate” and “Design Certificate” have the same meaning as in the DMRB Volume 1 Section 1 Part 1 BD2/12;

(b)“the design requirement” means the detailed design requirement specified in paragraph 99(1) (design of, and coordination of, tunnelling works to ensure existing and future use of river Thames);

(c)“the specified day” means—

(i)the day on which the documents referred to in sub-paragraph (4) are provided to the PLA under that sub-paragraph; or

(ii)the day on which the undertaker provides the PLA with all drawings and further information that has been requested by the PLA under sub-paragraph (2),

whichever is the later.

As built drawings

101.  As soon as reasonably practicable following the completion of the construction of the authorised development, the undertaker must provide to the PLA as built drawings of any specified works in a form and scale to be agreed between the undertaker and the PLA to show the position of those works in relation to the river Thames.

Discharges etc.

102.—(1) The undertaker must not without the consent of the PLA exercise the powers conferred by article 19 (discharge of water) so as to—

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

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

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

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

(3) Any consent under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 25 business days of the day on which the request for consent is submitted under sub-paragraph (1).

(4) The undertaker must not, in the exercise of the powers conferred by article 19, damage or interfere with the beds or banks of any watercourse forming part of the river Thames unless such damage or interference is approved as a specified work under this Order or is otherwise approved in writing by the PLA.

Removal of temporary works

103.—(1) On completion of the construction of the whole or any part of a permanent specified work, the undertaker must—

(a)as soon as reasonably practicable after such completion seek approval under paragraph 98 (approval of detailed design (excluding the tunnelling works)) for the removal required by paragraph (b); and

(b)as soon as reasonably practicable after the grant of that approval under paragraph 98 remove—

(i)in the case of completion of part of a permanent specified work, any temporary tidal work (other than a residual structure) carried out only for the purposes of that part of the permanent specified work;

(ii)on completion of all the specified works, any remaining temporary tidal work (other than a residual structure); and

(c)in either case, any materials, plant and equipment used for such construction,

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

(2) Without limitation to paragraph (1), the undertaker must as soon as reasonably practicable seek approval under paragraph 98 for the removal of the temporary outfall in the river Thames and any structure installed in connection with ground investigations in the river Thames where the use of that outfall or structure is no longer necessary in connection with the construction of the authorised development, and as soon as practicable after the grant of that approval must remove that outfall and structure and make good the site to the reasonable satisfaction of the PLA.

(3) For the purposes of the undertaker making good the site in accordance with sub-paragraph (1)(b), the PLA may require that—

(a)any residual structure is cut off by the undertaker at such level below the bed of the river Thames as the PLA may reasonably direct; and

(b)the undertaker takes such other steps to make the residual structure safe as the PLA may reasonably direct.

(4) As soon as reasonably practicable after the undertaker has complied with the PLA’s requirements under sub-paragraphs (1), (2) and (3) in relation to any residual structure, the PLA must grant the undertaker a works licence for that structure under section 66 (licensing of works) of the 1968 Act, and the terms of the licence are to reflect such requirements.

(5) For the avoidance of doubt, article 53 (disapplication of legislative provisions, etc.) will not apply to a residual structure which will, accordingly, be subject to sections 66 to 75 (lands above mean high water level) of the 1968 Act.

(6) In this paragraph—

“residual structure” means any part of a temporary tidal work that the PLA agrees cannot reasonably be removed by the undertaker on completion of the construction of the permanent specified works; and

“tidal work” means any specified work any part of which is, or may be, or, in, under or over the surface of land below the level of mean high water forming part of the river Thames.

Protective action

104.—(1) If any specified work or the exercise of any specified function—

(a)is constructed or carried out otherwise than in accordance with the requirements of this Schedule or with any condition in an approval given under paragraph 98(4) (approval of detailed design (excluding the tunnelling works)); or

(b)during construction or carrying out gives rise to sedimentation, scouring, currents or wave action, or other material change to the riverbed, which would be materially detrimental to traffic in, or the flow or regime of, the river Thames,

then the PLA may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.

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

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

(i)this Schedule; or

(ii)the condition that has been breached; or

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

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

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

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

(4) If a specified work gives rise to materially new or materially different environmental effects over and above those anticipated by any environmental document, the undertaker must, in compliance with its duties under any enactment, take such action as is necessary to prevent or mitigate those environmental impacts and in so doing must consult and seek to agree the necessary measures with the PLA.

(5) If the PLA becomes aware that any specified work is causing materially new or materially different environmental effects over and above those anticipated by any environmental document, the PLA must notify the undertaker of—

(a)that materially new or materially different environmental effect;

(b)the reasons why the PLA believes that the materially new or materially different environmental effects are being caused by the specified work; and

(c)measures that the PLA reasonably believes are necessary to counter or mitigate that materially new or materially different environmental effects.

(6) The undertaker must implement either the measures that the PLA has notified to it under paragraph (5) or such other measures as the undertaker believes are necessary to counter materially new or materially different environmental effects identified, giving reasons to the PLA as to why it has implemented such other measures.

(7) In this paragraph “environmental document” means—

(a)the environmental statement; and

(b)any other document containing environmental information provided by the undertaker to the PLA for the purposes of any approval under paragraph 98.

Facilities for navigation

105.—(1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river Thames without the consent of the PLA, and must ensure that access to such aids remains available during and following construction of any specified work or the exercise of any specified function.

(2) The undertaker must provide at any specified work, or must afford reasonable facilities at such work (including an electricity supply) for the PLA to provide at the undertaker’s cost, from time to time such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the PLA may deem necessary by reason of the construction and presence of the specified work and must ensure access remains available to such facilities during and following construction of the specified work.

(3) The power under article 18(1)(e) (powers in relation to relevant navigations or watercourses) may only be exercised in connection with the relevant navigation as defined in that article where that exercise relates to—

(a)Work No. 5A;

(b)Work No. 5X;

(c)ground investigation works; and

(d)any other activity approved in writing by the PLA.

Use of land above the riverbed of the river Thames

106.  The undertaker’s powers of temporary possession and compulsory acquisition of rights and imposition of restrictive covenants under this Order above the riverbed of the river Thames in connection with the temporary outfall, permanent outfall, the new water inlet with self-regulating valve and ground investigation works, is limited to what is reasonably necessary for the undertaker safely to construct the authorised development.

Survey of the river Thames riverbed

107.—(1) The PLA may, at the undertaker’s expense (such expense to be that which is reasonably incurred), carry out a survey (or externally procure the carrying out of a survey) for the purpose of establishing the condition of the river Thames—

(a)before the commencement of construction of the first specified work below the level of mean high water to be constructed following approval under paragraph 98 (approval of detailed design (excluding the tunnelling works));

(b)before the commencement of construction of any other specified work, or the carrying out of any other specified function, approved under paragraph 98;

(c)during the construction of any specified work, or the carrying out of any specified function, as is reasonably required; and

(d)after completion of, respectively—

(i)any specified work and the exercise of all related specified functions; and

(ii)all the specified works constructed and specified functions carried out under this Order in relation to such construction,

of such parts of the river Thames as might be affected by sedimentation, scouring, currents, wave action or other material change to the riverbed that might result from the construction of the relevant specified work, or the carrying out of a specified function as would, if it were to be constructed or carried out, constitute specified works, or give rise to operations, below the level of mean high water.

(2) The PLA must make available to the undertaker the results of any survey carried out under this paragraph, such results to be provided to the undertaker within 20 business days from the undertaker’s request.

(3) The PLA must not under this paragraph carry out a survey of any part of the river Thames in respect of which the undertaker has provided to the PLA survey material which the PLA is satisfied establishes the condition of the river Thames, and in the case of a survey under sub-paragraph (1)(c), the effect of the specified works and the specified functions.

(4) A survey carried out under this paragraph is the property of the PLA.

Statutory functions

108.  Subject to article 53 (disapplication of legislative provisions, etc.) the exercise in, under or over the river Thames by the undertaker of any of its functions under this Order is subject to—

(a)any enactment relating to the PLA;

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

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

Indemnity

109.—(1) The undertaker will pay to the PLA its proper and reasonable legal costs, professional fees and disbursements incurred in connection with reviewing detailed design information, construction information and any other information submitted to the PLA in respect of a specified work or a specified function.

(2) The undertaker is responsible for and must make good to the PLA all financial costs, charges, damages losses or expenses which may be incurred reasonably or suffered by the PLA by reason of—

(a)the construction or operation of a specified work or its failure;

(b)the exercise of any specified function; or

(c)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged on the construction or operation of a specified work or exercise of a specified function dealing with any failure of a specified work,

and the undertaker must indemnify the PLA from and against all claims and demands arising out of or in connection with the specified works or specified functions or any such failure, act or omission.

(3) The fact that any act or thing may have been done—

(a)by the PLA on behalf of the undertaker; or

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

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

(4) The PLA must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraphs (1) and (2) and no settlement or compromise of it is to be made without the prior consent of the undertaker.

Disposals, etc.

110.  The undertaker must within 7 days after the completion of any sale, agreement or other transaction under article 8 (consent to transfer benefit of Order) in relation to which any powers, rights and obligations of the undertaker are transferred to another party, notify the PLA in writing, and the notice must include particulars of the other party to the transaction under article 8, the general nature of the transaction and details of the extent, nature and scope of the works or functions sold, transferred or otherwise dealt with.

Navigational lights, buoys, etc.

111.—(1) The undertaker must, at or near a specified work or a location where a specified function is being exercised, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the PLA may from time to time reasonably require.

(2) The PLA must give the undertaker not less than 20 business days’ written notice of a requirement under sub-paragraph (1) except in the case of emergency when the PLA must give such notice as is reasonably practicable.

Directions as to lights

112.  The undertaker must comply with any reasonable directions issued from time to time by the Harbour Master with regard to the lighting of—

(a)a specified work; or

(b)the carrying out of a specified function or the use of apparatus for the purposes of such a function,

or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river Thames.

Removal, etc. of the PLA’s moorings and buoys

113.—(1) Subject to sub-paragraph (2), if by reason of the construction of any specified work or the exercise of any specified function it is reasonably necessary for the PLA to incur the cost of—

(a)temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the PLA;

(b)laying down and removing substituted moorings or buoys; or

(c)carrying out dredging operations for any such purpose,

not being costs which it would have previously incurred for any other reason, the undertaker must pay the costs reasonably so incurred by the PLA.

(2) The PLA must give to the undertaker not less than 20 business days’ notice of its intention to incur such costs, and take into account any representations which the undertaker may make in response to the notice within 10 business days of the receipt of the notice.

Abandoned or decayed works

114.—(1) If a specified work is abandoned or falls into decay, the PLA may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the specified work, or any part of it, or to remove the specified work and (to such extent and within such limits as the PLA reasonably requires) restore the site of that work to its condition prior to the construction of the specified work.

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

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

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

(3) If on the expiration of such reasonable period as may be specified in a notice under this paragraph the work specified in the notice has not been completed to the satisfaction of the PLA, the PLA may undertake that work and any expenditure reasonably incurred by the PLA in so doing is recoverable from the undertaker.

Apparatus in the tunnel area

115.—(1) Whenever the undertaker receives an application from any person who is considering placing or doing anything that might require the undertaker’s consent under article 47 (no apparatus in tunnel area without consent), the undertaker will inform the person concerned of the possible need to obtain the PLA’s licence under section 66 (licensing of works) of the 1968 Act in relation to that matter and will recommend that the person contacts the PLA in order to discuss the matter with the PLA.

(2) Within 5 business days of giving a consent under article 47 (no apparatus in the tunnel area without consent), the undertaker must notify the PLA in writing that consent has been given and in doing so must provide the PLA with the name and address of the person to whom the consent has been given and details of the apparatus or work to which the consent relates.

Disputes

116.  Any dispute arising between the undertaker and the PLA under this Schedule is to be determined by arbitration as provided in article 64 (arbitration).

PART 9FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

Application and Interpretation

117.—(1) The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

(2) In this part of this Schedule—

“Agency” means the Environment Agency;

“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” is construed accordingly;

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

“fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

“main river” has the same meaning given in section 113 (interpretation of Part IV)(13) of the Water Resources Act 1991;

“plans” includes sections, drawings, specifications, calculations and method statements;

“remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river;

“sea defence” means any bank, wall, embankment (and any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the Agency’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949(14) or by any local authority or any navigation, harbour or conservancy authority; and

“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within—

Submission and approval of plans

118.—(1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days 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 in writing by the Agency, or determined under paragraph 128 (disputes).

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

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and

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

(d)may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or for nature conservation or in the discharge of its environmental duties.

(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

Construction of protective works

119.  Without limiting paragraph 118 (submission and approval of plans), the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, 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 drainage work against damage; or

(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

Timing of works and service of notices

120.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 119 (construction of protective works), must be constructed—

(a)without unreasonable delay in accordance with the plans approved under this Schedule; and

(b)to the reasonable satisfaction of the Agency,

and the Agency is entitled by its officer to watch and inspect the construction of such works.

(2) The undertaker must give to the Agency 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 7 days after the date on which it is completed.

(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work to which the protective works relate.

Works not in accordance with this Part

121.—(1) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Schedule, the Agency 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 Agency 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 Agency reasonably requires.

(2) Subject to sub-paragraph (3) and paragraph 126 (indemnity), if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (1) 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 Agency may execute the works specified in the notice and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.

(3) In the event of any dispute as to whether sub-paragraph (1) 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 Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (2) until the dispute has been finally determined in accordance with paragraph 128 (disputes).

Maintenance of works

122.—(1) Subject to sub-paragraph (5) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the specified work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

(3) Subject to sub-paragraph (5) and paragraph 126, if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on 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 Agency may do what is necessary for such compliance and any expenditure incurred by the Agency in so doing is recoverable from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 128.

(5) This paragraph does not apply to—

(a)drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of the Order from doing so; and

(b)any obstruction of a drainage work authorised by this Order or in the approval of specified works plans approved under paragraph 118 (submission and approval of plans) and carried out in accordance with the provisions of this Part provided that any obstruction is removed as soon as reasonably practicable.

Remediating impaired drainage work

123.  Subject to paragraph 126 (indemnity), if by reason of the construction of any specified work or of the failure of any such work, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure incurred by the Agency in so doing from the undertaker.

Agency access

124.  If by reason of construction of the specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction as soon as reasonably practicable of the undertaker becoming aware of such obstruction.

Free passage of fish

125.—(1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

(2) If by reason of—

(a)the construction of any specified work; or

(b)the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) Subject to paragraph 126 (submission and approval of plans), if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and any expenditure reasonably incurred by the Agency in so doing is recoverable from the undertaker.

(4) Subject to paragraph 126, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

Indemnity

126.  The undertaker must indemnify the Agency in respect of all costs, charges and expenses which the Agency may incur—

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

(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and

(c)in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.

127.—(1) The undertaker is responsible for and must indemnify the Agency against all costs and losses not otherwise provided for in this Part of this Schedule which may be reasonably incurred or suffered by the Agency by reason of—

(a)the construction, operation or maintenance or failure during construction of any specified works comprised within the authorised development;

(b)the operation or maintenance of any specified works comprised within the authorised development or the failure of any such works; or

(c)any act or omission of the undertaker, its employees, contractors or agents or other persons acting under the direction of the undertaker whilst engaged upon—

(i)the construction, operation or maintenance of the specified works; or

(ii)in the case of those specified works that the undertaker is liable to maintain, dealing with any failure of those specified works.

(2) For the avoidance of doubt, in sub-paragraph (1)—

“costs” includes—

“losses” includes physical damage.

(3) The undertaker must indemnify the Agency against all liabilities, claims and demands arising out of or in connection with the authorised development or otherwise out of the matters referred to in sub-paragraph (1).

(4) In sub-paragraph (3)—

“claims” and “demands” include as applicable—

“liabilities” includes—

(5) The Agency must give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of the undertaker, which agreement will not be unreasonably withheld or delayed.

(6) The Agency must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.

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

(8) Nothing in this paragraph imposes any liability on the undertaker with respect to any costs, charges, expenses, damages, claims, liabilities, demands or losses to the extent that they are attributable to the neglect or default of the Agency, its officers, servants, contractors or agents.

Disputes

128.  Any dispute arising between the undertaker and the Agency under this Part of this Schedule must, if the parties agree, be determined by arbitration under article 64 (arbitration).

PART 10FOR THE PROTECTION OF PORT OF TILBURY LONDON LIMITED

Application

129.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and PoTLL, for the protection of PoTLL in relation to the construction of the authorised development and the operation and maintenance of the authorised development within the Port.

Interpretation

130.—(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—

“accumulation” means any accumulation of silt or other material (including any materials used to construct the authorised development) which constitutes an impediment to navigation within and to and from the Port;

“the affected roads” means the A1089 St Andrews Road, Ferry Road, Fort Road and the unnamed link road between Fort Road and the A1089 St Andrews Road;

“plans” includes plans, sections, elevations, drawings, specifications, programmes, proposals, construction methods and descriptions;

“the Port” means—

“PoTLL” means Port of Tilbury London Limited, as statutory harbour authority for and operator of the Port;

“preliminary works” and “preliminary works EMP” have the same meaning as in paragraph 1 (interpretation) of Part 1 (requirements) of Schedule 2 to this Order;

“Required Easement Width” means any area of land comprising or forming part of an exclusion or protection zone pursuant to an easement for the benefit of a statutory undertaker and proposed to be—

“specified easement” means any easement, restrictive covenant or any other form of property right, including a Required Easement Width, for the benefit of another statutory undertaker in respect of a work authorised by this Order, burdening land within the Port and proposed to be—

“specified function” means any function of the undertaker under—

of this Order where exercised in respect of the land situated on, over, across or under the Port;

“specified work” means so much of the works and other matters listed at paragraphs (a) to (d) as are situated on, over, across or under the Port—

“Tilbury2” means that part of the Port constructed pursuant to the Port of Tilbury (Expansion) Order 2019(18); and

“vehicular access” includes but is not limited to access by road, rail, vessel and conveyor and any reference to “access” is to be construed as including vehicular access unless otherwise stated.

Approval of plans

131.—(1) The undertaker must, before the exercise, or carrying out of any specified function or specified work, supply to PoTLL proper and sufficient plans of that work or function for the approval of PoTLL, acting reasonably, and the specified function must not be exercised or the specified work must not begin except in accordance with such plans as have been approved in writing by PoTLL or settled pursuant to paragraph 150 (disputes) of this Part of this Schedule.

(2) Before approving plans provided under sub-paragraph (1), PoTLL may require the undertaker to supply it with such further information as PoTLL considers (acting reasonably) to be necessary to determine whether to grant approval but such a request must be made within 28 days of the date on which plans have been supplied to PoTLL under sub-paragraph (1).

(3) The approval of PoTLL under sub-paragraph (1) must not be unreasonably withheld but may be given subject to such reasonable conditions as PoTLL may make for the protection of the Port (outside of the land which is the subject of the plan submitted under sub-paragraph (1)), navigation and current and permitted future vehicular access to it, and its ability to carry out dredging to facilitate vessel access to the Port and to facilitate the effective and cost-efficient future development of the Port provided that such conditions must not, if implemented, give rise to a breach of this Order.

(4) When imposing conditions on any approval given under sub-paragraph (1), PoTLL may specify any reasonably necessary protective works (whether temporary or permanent) that must be carried out before the carrying out of a specified work to minimise, to the extent reasonably practicable, the impact on PoTLL’s undertaking, and such protective works as may be reasonably necessary for those purposes must be constructed either by PoTLL at the expense of the undertaker, such costs to be agreed by the undertaker prior to construction, or by the undertaker at its own expense, in either case to be undertaken to a programme agreed between the undertaker and PoTLL, both parties acting reasonably.

(5) The undertaker must carry out any specified function or specified work and any protective works required under sub-paragraph (4) in accordance with the plans approved under sub-paragraph (1) or settled pursuant to paragraph 150 (disputes) of this Part of this Schedule.

(6) PoTLL is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey the specified works and the protective works and the undertaker must provide all reasonable facilities to enable that inspection and survey to take place and, if the person duly appointed by PoTLL is of the opinion, acting reasonably, that the construction of the work poses danger to any property of the Port or persons within the Port, the undertaker must adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury.

(7) If, by the end of the period of 28 days beginning with the date on which plans (or any subsequent information reasonably requested in accordance with sub-paragraph (2)) have been supplied to PoTLL under sub-paragraph (1), PoTLL has not approved or intimated disapproval of those plans and the grounds of disapproval, PoTLL is deemed to have approved the plans as submitted.

(8) Where an approval is provided under this paragraph, the undertaker will be deemed to have a reasonable excuse for the purposes of paragraph 4(4) of Schedule 7 to the Port of Tilbury (Expansion) Order 2019(19), and no proceedings will be brought by PoTLL in pursuance of those byelaws, when the undertaker carries out the specified work or protective work or specified function in accordance with an approval.

Approval of specified easements

132.—(1) Before granting, imposing or acquiring any specified easement, transferring or granting the benefit of the Order pursuant to article 8(1) (consent to transfer benefit of Order) or issuing a consent under article 28(3) (compulsory acquisition of rights and imposition of restrictive covenants) in respect of any specified easement, the undertaker must supply to PoTLL details of the proposed terms of that specified easement for the approval of PoTLL, acting reasonably, and the specified easement must not be acquired, imposed or granted except in accordance with the proposed terms as have been approved in writing by PoTLL or settled pursuant to paragraph 150 (disputes) of this Part of this Schedule.

(2) The approval of PoTLL under sub-paragraph (1) must not be unreasonably withheld but may be given subject to such reasonable conditions as PoTLL may make for the protection of the Port and current and planned permitted vehicular access to it, and its ability to carry out dredging to facilitate vessel access to the Port and to facilitate the effective and cost-efficient operation and future development of the Port provided that such conditions must not, if implemented, give rise to a breach of this Order.

(3) In considering whether to grant its approval of the proposed terms of a specified easement submitted to it under sub-paragraph (1), PoTLL must have reasonable regard to—

(a)the reasonable requirements of the statutory undertaker for whose benefit the specified easement is proposed to be granted or acquired, including any relevant provisions of this Order;

(b)the intended purpose of the specified easement; and

(c)the desirability of the effective and efficient implementation of the authorised work or works to which the specified easement relates.

(4) When acquiring, imposing or granting the specified easement, transferring or granting the benefit of the Order pursuant to article 8(1) or issuing a consent under article 28(3) in respect of any specified easement, the undertaker must do so in accordance with the proposed terms approved under sub-paragraph (1) or settled pursuant to paragraph 150 of this Part of this Schedule.

(5) If, by the end of the period of 28 days beginning with the date on which the proposed terms of any specified easement have been supplied to PoTLL under sub-paragraph (1), PoTLL has not approved or intimated disapproval of those terms and the grounds of disapproval, PoTLL is deemed to have approved the proposed terms as submitted.

(6) Except for the retained provisions, the provisions of this Order do not apply to, and the powers conferred by this Order are not exercisable by the undertaker or any other person in respect of, the area 1 land.

(7) Other than as may be approved by PoTLL pursuant to the provisions of this Part of this Schedule, the undertaker must not exercise or permit the exercise of the powers conferred by this Order so as to limit PoTLL’s use, enjoyment and ability to develop, let or permit occupation of the area 1 land.

(8) The provisions of article 66 (power to override easements and other rights) of this Order do not apply to override any agreement entered into between the undertaker and PoTLL where, and to the extent that, such an agreement contains an express provision intended to exclude it from the scope of article 66.

(9) The provisions of article 29 (private rights) do not apply to the Port and any interests in or rights over land held by PoTLL unless otherwise agreed by PoTLL, acting reasonably.

(10) In this paragraph—

“the area 1 land” means the land comprised in plots 16-65, 16- 66, 17-08, 17-09, 21-32 and 21-34 as shown on the land plans and listed in the book of reference; and

“retained provisions” means sub-paragraphs (6) to (9) of this paragraph and paragraphs 149 (indemnity) and 150 of this Part of this Schedule.

Restoration of Port land

133.  Before permanently vacating any part of the Port, the undertaker must supply to PoTLL a schedule setting out the condition of that part of the Port and any temporary works and apparatus situated in, on, under or over that part, and, notwithstanding articles 35, 36 or 37, PoTLL may confirm in writing that any of the temporary works and apparatus are not to be removed by the undertaker and specify the condition that part of the Port is to be restored to, and the undertaker will put that part of the Port in that condition before vacating that part of the Port.

Consultation

134.—(1) PoTLL must be consulted by the undertaker on the development of the following plans required by Part 1 (requirements) of Schedule 2 and details in respect of any matters or measures within them that may affect the Port or the carrying out of a specified work or a specified function, before they are submitted to the Secretary of State for approval—

(a)an EMP (Second Iteration) under paragraph 4 (construction and handover environmental management plans);

(b)a LEMP (as defined in paragraph 1 of Schedule 2) under paragraph 5;

(c)any materials handling plan developed under paragraph 4 as part of the EMP (Second Iteration);

(d)a written scheme and programme under paragraph 6(2) (contaminated land and groundwater);

(e)a travel plan under paragraph 11 (construction travel plans); and

(f)fencing under paragraph 12 (fencing).

(2) Within the Port—

(a)the definition of “carrying out” in paragraph 6(1) of Part 1 of Schedule 2 is to be construed as applying to the preliminary works; and

(b)measures GS016, GS017, GS018, GS019, GS022, GS025, GS026, GS027 and GS028 of table 7.1 of the Code of Construction Practice apply to the carrying out of the preliminary works.

(3) PoTLL must be consulted by the undertaker on the development of the following plans, required by the environmental management plan for the preliminary works EMP, in respect of any matters or measures within them that may affect the Port or the carrying out of a specified work or specified function, before they are approved by the undertaker—

(a)a Security Management Plan;

(b)an Emergency Preparedness Plan; and

(c)a Noise and Vibration Management Plan.

(4) PoTLL must be consulted by the undertaker on the development of a traffic management plan for the preliminary works required by section 6 of the outline traffic management plan for construction.

(5) The undertaker must invite PoTLL to be a member of the following groups that are created in relation to the authorised development on the north side of the river Thames—

(a)the travel plan liaison group created under a travel plan approved under paragraph 11;

(b)the traffic management forum created under a traffic management plan approved under paragraph 11;

(c)the materials handling sub-group of the traffic management forum created under a traffic management plan approved under paragraph 11; and

(d)an advisory group created under a LEMP (as defined in paragraph 1 of Schedule 2) approved under paragraph 5.

(6) In this paragraph—

(a)“preliminary works EMP” has the meaning given by paragraph 2(1) (interpretation) of Part 1 of Schedule 2; and

(b)References to “paragraphs” are references to paragraphs in Part 1 of Schedule2.

Notification of works to utilities and services affecting the Port

135.—(1) Except in an emergency, prior to the carrying out of any works to any utilities or services within the infrastructure corridor, the undertaker will notify PoTLL of the intended works and the programme for the implementation of such works at least 28 days prior to the carrying out of the proposed works.

(2) In this paragraph, “the infrastructure corridor” means the purpose-built highway to access Tilbury2 between the A1089 and Substation Road.

Construction traffic management protocol within the Port

136.—(1) Before the commencement of any work constituting Work No. CA5 or ancillary to it, including preliminary works, the undertaker must submit a construction traffic management protocol to PoTLL for approval.

(2) The construction traffic management protocol must include—

(a)the security process to be followed by all vehicles accessing Work No. CA5 or otherwise travelling through the Port;

(b)the code of conduct to which the undertaker, its employers, agents and contractors will be held to whilst on the Port;

(c)procedures to be followed by all vehicles to ensure the Port and access to the Port does not become congested during any period in which the level crossing in the Port is in use;

(d)the procedures to be followed in an emergency;

(e)a suggested process by which advanced approval will be sought from PoTLL of the number of vehicular movements, including abnormal indivisible loads, expected to pass through the Port within a period to be agreed with PoTLL, and for updates to this information to be provided at the end of agreed period, for the next agreed period; and

(f)a suggested process by which variations to the numbers approved by PoTLL under paragraph (e) are to be approved by PoTLL.

(3) The approval of PoTLL under sub-paragraph (1) must not be unreasonably withheld but may be given subject to such reasonable modifications, terms and conditions as PoTLL may make for the protection of the Port and its tenants, including in respect of their current and future operations.

(4) The undertaker must ensure that its employees, agents and contractors comply with the agreed construction traffic management protocol within the Port and failure of an individual or body to comply with the construction traffic management protocol will entitle PoTLL to prohibit that individual or body from entering the Port.

Streets

137.—(1) Before exercising the relevant streets powers in respect of any affected roads the undertaker must consult PoTLL on its proposed exercise of those powers and have regard to any consultation response provided by PoTLL.

(2) Consultation under this paragraph will be effected by the undertaker sending to PoTLL the documents reasonably required to describe its proposed exercise of the relevant streets powers and, where required by the provisions of the relevant streets powers to consult or seek the consent of a street authority or traffic authority, a copy of the consultation documents or application seeking that consent, at the time those documents are submitted to the relevant street authority or traffic authority as the case may be.

(3) The undertaker must send to PoTLL a copy of any response received by the undertaker from the relevant street authority or traffic authority in response to any such consultation or submission for consent under the relevant streets powers within 7 days of the receipt by the undertaker of any such response.

(4) In this paragraph “the relevant streets powers” means the powers conferred by article 12 (temporary closure, alteration, diversion and restriction of use of streets), article 16 (clearways, speed limits and prohibitions) and article 17 (traffic regulation – local roads).

Minimising disruption to affected roads and streets within the Port

138.  In exercising the powers conferred by this Order in relation to the affected roads or any street within the Port, the undertaker must have regard to the potential disruption, delay or congestion of traffic which may be caused to the affected roads or streets within the Port and seek to minimise such disruption, delay or congestion so far as is reasonably practicable.

Obstruction within the Port

139.—(1) Where any event or accident on or affecting any road, street or highway within the Port or on or affecting the river Thames, prevents or obstructs pedestrian or vehicular access into, out of or within the Port, such event or accident being caused by or attributable to the undertaker, its agents, employees or contractors, or which requires the removal of any item, vessel or vehicle which is preventing or obstructing access and which is owned by, contracted to or otherwise being used on behalf of the undertaker, the undertaker must use best endeavours to reinstate access or remove the obstruction without delay.

(2) PoTLL may, where an obstruction has occurred and has not been removed by the undertaker within 14 days of the undertaker becoming aware of the obstruction, or upon the undertaker being given notice by PoTLL that it is expedient for PoTLL to do so, remove the obstruction and recover the cost of that removal and repair from the undertaker.

Land powers

140.  The undertaker must not exercise the powers conferred by article 25 (compulsory acquisition of land), article 33 (acquisition of subsoil or airspace only), article 35 (temporary use of land for carrying out the authorised development) and article 36 (temporary use of land for maintaining the authorised development) in relation to any land within the Port unless the exercise of those powers is with the consent of PoTLL, such consent not to be unreasonably withheld or delayed.

As-built plans

141.  As soon as reasonably practicable following the completion of the construction of any specified works within the Port or any protective works, the undertaker must provide to PoTLL as-built plans of those works in a form and scale to be agreed between the undertaker and PoTLL.

Accumulation and erosion

142.—(1) If during the construction of a specified work or protective work or in the carrying out of a specified function or after the completion of that work or function, there is caused or created an accumulation or erosion wholly or partly in direct consequence of its construction, the undertaker, if requested by PoTLL, acting reasonably, must remedy the accumulation or erosion to the extent attributable to the construction of the specified work or protective work and, if it refuses or fails to do so as soon as reasonably practicable, PoTLL may itself cause the work to be done and may recover the reasonable cost of doing so from the undertaker.

(2) For the purposes of sub-paragraph (1)—

(a)in the case of an accumulation, the remedy must be its removal; and

(b)in the case of erosion, the remedy must be the carrying out of such reconstruction works and other protective works or measures as PoTLL reasonably requires.

(3) In this paragraph, “erosion” means any fluvial, mechanical or other erosion, collapse, disturbance or destruction of the bed or banks of the river Thames or any quay or jetty or other structure of whatever nature within the Port.

Permitting

143.—(1) The undertaker must consult PoTLL before—

(a)applying for a new permit, a variation of an existing permit or a surrender of an existing permit under the Environmental Permitting (England and Wales) Regulations 2016(20);

(b)applying to surrender an existing permit under article 68 (interface with waste operation permits); or

(c)submitting an environmental scheme under article 68 (interface with waste operation permits),

which applies or will apply to activities in the Port, and must have regard to PoTLL’s comments in finalising those applications or submissions.

(2) Within the Port, the meaning of “authorised activity” in article 68 is to be construed as including the carrying out of any preliminary works.

Port closure in emergency

144.—(1) Subject to sub-paragraph (2), PoTLL may at any time close the Port and exclude access by the undertaker, including access under any power granted by this Order, under any access right and as provided for in any agreement between the undertaker and PoTLL, where PoTLL reasonably considers that it is necessary to do so in response to a request from an emergency service or government agency, any emergency or accident, or an imminent threat to the health or safety of persons.

(2) PoTLL must inform the undertaker of any closure of the Port as soon as reasonably practicable, including details of the location and extent of the closure and where known, the anticipated duration of the closure.

(3) The undertaker must not at any time prevent or unreasonably impede access by emergency services vehicles to the Port.

Interaction with the Tilbury2 Order

145.—(1) Notwithstanding article 55(5) (application of local legislation, etc.), the undertaker will not undertake any work, activity or operation authorised by this Order, the Town and Country Planning Act (General Permitted Development) Order 2015 or under any planning permission granted or having effect under the Town and Country Planning Act 1990 that will or could result in a breach of the provisions, requirements, licences and other consents that form part of, are authorised by, or are ancillary to Port of Tilbury (Expansion) Order 2019 (“the 2019 Order”) until a written scheme of management has been submitted to and approved by PoTLL.

(2) The written scheme of management must set out how the undertaker will—

(a)minimise the extent of any breach;

(b)monitor the breach;

(c)rectify the breach at the earliest opportunity; and

(d)reinstate the Port so as to ensure ongoing compliance with the provision, requirement, licence or consent following rectification of the breach.

(3) Unless otherwise agreed by PoTLL, the undertaker must carry out the written scheme of management approved under sub-paragraph (1).

(4) The undertaker is to be responsible for ensuring the rectification of any breach remains effective for the period of 12 months commencing with the date the breach was rectified or, should the breach recur, the date the recurrence was itself rectified.

(5) The rectification of any breach under sub-paragraph (2)(c) and reinstatement under sub-paragraph (2)(d) must be to at least the condition of the relevant land, ecological or other feature as at the date immediately prior to the action being undertaken that but for article 55(5) constituted a breach of the 2019 Order, but may include the provision of compensatory ecological provision where rectification would not otherwise be reasonably practicable due to the construction of the authorised development.

Safeguarding of access to the Port by rail

146.  The undertaker must not exercise any power under the Order in such a manner as to cause any vehicular access for the purposes of the authorised development to have priority over railway traffic at the level crossing in the Port.

Disposals, etc.

147.  The undertaker must within 7 days after the completion of any sale, agreement or other transaction under article 8 (consent to transfer benefit of Order) in relation to which any powers, rights and obligations of the undertaker are transferred to another party insofar as these would affect the Port or the operation of this Part of this Schedule, notify PoTLL in writing, and the notice must include particulars of the other party to the transaction under article 8, the general nature of the transaction and details of the extent, nature and scope of the works or functions sold, transferred or otherwise dealt with.

Costs

148.  The undertaker must pay to PoTLL its proper and reasonable legal costs, professional fees and disbursements incurred in connection with—

(a)reviewing any information provided by the undertaker in seeking any consent or approval required by this Part of this Schedule; or

(b)inspecting during construction or on practical completion of any specified work or protective work.

Indemnity

149.—(1) The undertaker agrees to indemnify and keep PoTLL, including any associated company (as defined in article 8(7) (consent to transfer benefit of Order)), indemnified at all times for all losses, costs, charges, damages, expenses, claims and demands which may be incurred reasonably or suffered by PoTLL, by reason or arising from or relating to—

(a)the construction or failure of a specified work or protective work;

(b)the carrying out of a specified function;

(c)the undertaking by PoTLL of works or measures to prevent or remedy a danger or impediment to navigation or access within or to and from the Port;

(d)the alteration to aids to navigation within the Port that are owned by PoTLL or the laying down of moorings or buoys within the Port as may be necessary in consequence of a specified work;

(e)damage to the Port arising from paragraphs (a) to (d), including but not limited to—

(i)damage to any, street, plant, apparatus, chattels, fixtures, equipment or building belonging to PoTLL that is caused by the construction or failure of a specified work or protective work;

(ii)any act or omission of the undertaker or its servants and agents while engaged in the construction of a specified work or protective work; and

(iii)any remedial works necessary as the result of contamination being disturbed in, or migrating to, the Port or where such contamination means that the land affected by contamination cannot be used as part of the Port.

(2) The liability imposed by sub-paragraph (1) includes where this is attributable to the act, neglect or default of the undertaker’s officers, servants, contractors, employees, agents and sub-contractors.

(3) The fact that any act or thing may have been done by PoTLL on behalf of the undertaker or in accordance with a plan approved by PoTLL or in accordance with any requirement of PoTLL or under its supervision or to its satisfaction or in accordance with any directions or award of any arbitrator does not, subject to sub-paragraph (4), excuse the undertaker from liability under the provisions of sub-paragraph (1).

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

(5) PoTLL must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand must be made without the prior written consent of the undertaker, such consent not to be unreasonably delayed or refused.

Disputes

150.—(1) Subject to sub-paragraph (2), any difference arising between the undertaker and PoTLL under this Part must be determined by arbitration as provided in article 64 (arbitration).

(2) In the event of any difference arising between the undertaker and PoTLL under this Part, senior representatives of each party must seek to resolve the dispute through a meeting between the parties promptly and in any event within 10 business days of the dispute arising, and if either party is not reasonably satisfied following that meeting it may, within 20 business days of the meeting, notify the other party accordingly and refer the matter to arbitration.

PART 11FOR THE PROTECTION OF LOCAL HIGHWAY AUTHORITIES

Application

151.  The provisions of this Part of this Schedule have effect in relation to the works unless otherwise agreed in writing between the undertaker and the relevant local highway authority.

Definitions

152.  In this Part of this Schedule—

“detailed design” means drawings and other information comprising the detailed design for local roads comprised in the authorised development for the purposes of paragraph 3 of Part 1 of Schedule 2 to this Order;

“detailed information” means drawings, specifications and other information relating to the local highway, as relevant to the works in question, to comprise the following (insofar as both parties agree (acting reasonably) are relevant and not already provided for in any document that the undertaker is required to produce under Schedule 2 to this Order) which must be in accordance with the detailed design—

“DMRB” means the Design Manual for Roads and Bridges published by the undertaker. or any replacement or modification of that standard for the time being in force;

“final certificate” means the final certificate issued by the relevant local highway authority under paragraph 161 (final certificate) of this Part of this Schedule;

“local highway” means any public highway including any public right of way which is maintainable, or is intended at the completion of the works in relation thereto to be maintainable by a relevant local highway authority;

“maintenance period” means the period of 12 months beginning with the date of the provisional certificate being served under paragraph 159 (provisional certificate) of this Part of this Schedule unless otherwise agreed in writing between the parties;

“the parties” means the undertaker and the relevant local highway authority;

“provisional certificate” means the certificate served under paragraph 159 of this Part; and

“works” means any works authorised by the Order undertaken on, to or under any part of the local highway.

Design input and commencement

153.—(1) The undertaker must allow and facilitate an appropriately qualified person or persons duly appointed by the relevant local highway authority (each being a “nominated officer”) to participate in the design process for the detailed design for the works and must have reasonable regard to any representations of the nominated officer in finalising its detailed design proposal.

(2) Participation under sub-paragraph (1) will be in the form of invitations (given at least 10 business days in advance and sent by email) to attend design meetings relating to relevant works and the provision to the nominated officer of such drawings, cross/long sections, design proposals and other information as is reasonably required to allow the nominated officer to provide an informed response on the detailed design proposals to the undertaker.

(3) The nominated officer will have no fewer than 10 business days from the date on which the undertaker supplies information pursuant to sub-paragraph (2) to provide the undertaker with any comments upon any information provided to that officer pursuant to sub-paragraph (2).

(4) No part of the works may commence until the undertaker has provided to the relevant local highway authority the detailed information relating to that part of the works (without prejudice to the undertaker providing parts of the detailed information insofar as it relates to the operation of the local highway at a later date provided the provision of that information is subject to this sub-paragraph and sub-paragraphs (5) to (7)).

(5) The undertaker will give the relevant local highway authority at least 10 business days to comment and provide representations by email on the detailed information provided to it under sub-paragraph (4).

(6) The undertaker must have reasonable regard to any comments, representations and recommendations made by the relevant local highway authority under sub-paragraph (5) and will provide the relevant local highway authority with reasons for non-acceptance of any representation or recommendation as soon as reasonably practicable upon receipt of a request from the relevant local highway authority in writing within 10 business days of its decision.

(7) The works must not be carried out except in accordance with the detailed information (but subject to the process in sub-paragraphs (4) and (5) or as otherwise may be agreed between the undertaker and the relevant local highway authority.

(8) This paragraph does not apply to the works to the extent the undertaker and the local highway authority agree (acting reasonably) that a permit issued under a permit scheme applies to the works.

(9) This paragraph does not apply to the works to the extent they are subject to clause PRO.07 of the design principles, and to the extent they are not subject to that clause of the design principles, without limitation, the undertaker is able to refuse implementation of any representation or recommendation made under this paragraph where it would cause an inconsistency with the outcome of process secured under that clause of the design principles.

(10) For the avoidance of doubt and without limitation, the undertaker may refuse to implement any comment or representation made under sub-paragraphs (1) or (5) which would cause a breach of this Order, conflict with a permit issued under a permit scheme or would entail materially new or materially different environmental effects from those reported in the environmental statement).

154.—(1) Before commencing the construction of, or the carrying out of any work authorised by this Order which involves works to a local highway the undertaker must use reasonable endeavours to agree with the relevant local highway authority a local operating agreement covering the following as relevant to the works in question—

(a)communications and customer care arrangements for communication with stakeholders and the local community including—

(i)the identity of the party responsible for each activity;

(ii)the identity of the contractor responsible for stakeholder engagement and communication; and

(iii)defined timescales for contractor responses to responses to communications;

(b)where the undertaker takes responsibility for the local highway in which the works are proposed, definition of the extents for the works areas between the highway boundary, the traffic management lead in tapers, the longitudinal coning and the end of the lead out tapers, zone of influence (being the area which is reasonably affected by those work areas), traffic management and diversion requirements and free recovery areas (as appropriate);

(c)arrangements for the submission to the relevant local highway authority of digital copies of all as-built drawings for the relevant work area including identification of any new limits of highway maintainable by the relevant local highway authority in accordance with paragraph 161 (final certificate) of this Schedule;

(d)winter maintenance including anticipated winter treatments and severe weather arrangements to apply during the construction period and the maintenance period;

(e)repair arrangements in relation to local highways directly affected by the construction of the authorised development;

(f)continuity of technology arrangements to apply during the construction period and the maintenance period;

(g)arrangements for dealing with and recording incidents during the construction period and the maintenance period including appropriate provision of recovery vehicles; and

(h)traffic management during relevant works.

(2) Any agreement completed under sub-paragraph (1) must be complied with by the undertaker and continue in force until such time as a final certificate has been issued in respect of the relevant works.

Survey reinstatement

155.  The undertaker must reinstate to the reasonable satisfaction of the relevant local highway authority any part of the local highway which has been temporarily used for survey or investigation by the undertaker pursuant to article 20 (protective work to land and buildings), article 35 (temporary use of land for carrying out the authorised development) of this Order or any other power in this Order, to the condition it was in on the date on which the survey or investigation began or such other condition as may be agreed in writing by the relevant local highway authority.

Inspections and testing of materials

156.—(1) The undertaker must allow and facilitate any person duly appointed by the relevant local highway authority to access and inspect at all reasonable times any part of the works during their construction and before a final certificate has been issued in respect of the relevant works as is reasonably necessary to ensure that the works have been or are being carried out in accordance with the detailed design and to the appropriate standard.

(2) The undertaker must allow any person duly appointed by the relevant local highway authority to enter upon and inspect any part of the works which are in, over, under, or adjacent to any local highway or may affect any highway or any property of the relevant local highway authority, during the carrying out of the works, and the undertaker must give to such officer reasonable facilities for such inspection.

(3) Any testing reasonably requested by the relevant local highway authority of materials used in any works must be carried out at the undertaker’s expense and in accordance with the latest version of the Manual of Contract Documents for Highway Works (or any other testing specification agreed by the undertaker and the relevant local highway authority acting reasonably).

(4) The relevant local highway authority (or its agent) may test all or any materials used or proposed to be used in any works and the undertaker must provide such information access and materials as is reasonably necessary to facilitate such testing.

(5) The undertaker must, as soon as is reasonably practicable and in any event within 10 business days, provide the relevant local highway authority with a copy of all available test certificates and results relevant to the works that the relevant local highway authority has requested in writing.

(6) The relevant local highway authority must, as soon as is reasonably practicable and in any event within 10 business days, provide the undertaker with a copy of all available test results and certificates relevant to the works that the undertaker has requested in writing.

(7) In circumstances where a work carried out by the undertaker is tested by the relevant local highway authority pursuant to the provisions of this Part of this Schedule and that test resulted in works being undone at the undertaker’s expense (acting reasonably) and found to be satisfactory, then that expense must forthwith be reimbursed by the relevant local highway authority provided that the relevant local highway authority was given a reasonable opportunity by the undertaker to inspect the works at a time when the works could have been inspected without the need to incur the expense.

Road Safety Audits

157.—(1) The undertaker must procure that an appropriately qualified RSA team (as defined in DMRB Volume 5 Section 2 Part 2 (GG 119) or any replacement or modification of that standard) undertakes road safety audit in accordance with DMRB standard GG 119 and must provide copies of the reports of such audits to the relevant local highway authority within 10 business days of their receipt by the undertaker.

(2) The relevant local highway authority must be invited to participate in the road safety audit conducted under sub-paragraph (1).

(3) Where the report of the stage 3 and 4 road safety audit identifies any recommended measures in respect of the local highway, the undertaker must carry out, at its own expense and to the reasonable satisfaction of the relevant local highway authority, those measures identified as part of stage 3 and 4 audit which the undertaker considers necessary (acting reasonably) and which do not give rise to any new or materially different environmental effects in comparison with those identified in the environmental statement.

Defects in local highways constructed by the undertaker

158.—(1) Until such time as a final certificate has been issued in respect of any works, the undertaker must make good any defects in the works constructed by the undertaker to the reasonable satisfaction of the relevant local highway authority.

(2) The undertaker must submit to the relevant local highway authority such details and information relating to making good any defects under sub-paragraph (1) as the relevant local highway authority and the undertaker agree is reasonable in the circumstances.

Provisional Certificate

159.—(1) Subject to sub-paragraph (2), when the undertaker considers that the works have reached completion so that they are available for use by the public it must serve a provisional certificate on the relevant local highway authority and must allow the relevant local highway authority the opportunity to inspect the works to identify any defects or incomplete works (and the undertaker must give proper consideration to any representations and recommendations made by the relevant local highway authority and make good such defects pursuant to paragraph 158(2) (defects in local highways constructed by the undertaker) and complete incomplete works).

(2) The undertaker may not serve a provisional certificate on the relevant local highway authority under sub-paragraph (1) until either—

(a)a stage 3 road safety audit has been carried out in respect of the works in question in accordance with GG119 of DMRB and in the opinion of the undertaker any recommended measures identified in the audit and which the undertaker reasonably considers to be necessary, have been completed; or

(b)the relevant local highway authority has been provided an opportunity to inspect the works and the undertaker has, in its opinion, completed any further works or measures required to address any safety deficiencies or defects identified as a result of the inspection.

(3) The relevant local highway authority must issue to the undertaker, on request from the undertaker a counter-signed provisional certificate in relation to any part of the works, after completion of that part of the works once a stage 3 safety audit has been carried out in accordance with sub-paragraph (2).

Maintenance

160.—(1) Subject to sub-paragraph (2), the undertaker must maintain the works throughout the maintenance period to a standard appropriate to their use by the public in accordance with the DMRB.

(2) Nothing in paragraph (1) makes the undertaker responsible for the maintenance of any street works or maintenance works undertaken by any person other than the undertaker or which does not form part of the authorised development during the maintenance period.

Final Certificate

161.—(1) The relevant local highway authority must as soon as reasonably practicable, and in any event within 10 business days of paragraphs all of paragraphs (a) to (f) of this sub-paragraph being satisfied, issue a final certificate in respect of the works where—

(a)the maintenance period has elapsed;

(b)all incomplete works and identified defects requiring remediation under paragraph 158(1) (defects in local highways constructed by the undertaker) have been remedied to the relevant local highway authority’s reasonable satisfaction;

(c)the undertaker has given the relevant local highway authority a reasonable opportunity to inspect the relevant works in readiness for the issue of a final certificate and has given due consideration and acted accordingly in respect of any representations and recommendations made by the relevant local highway authority in respect of the works;

(d)the undertaker has provided the relevant local highway authority with a health and safety file in respect of the relevant works to the relevant local highway authority’s reasonable satisfaction;

(e)the undertaker has provided the relevant local highway authority with as built drawings and such detailed information as the relevant local highway authority has requested (acting reasonably) in relation to the relevant works as built; and

(f)any sewers which the local drainage authority consider should be constructed to dispose of soil and surface water drainage in connection with the relevant Works and in order to make them appropriate for public use have been constructed.

(2) The issue of a final certificate by the relevant local highway authority amounts to an acknowledgment by the relevant local highway authority that the construction alteration or diversion (as the case may be) of a highway has been completed to its reasonable satisfaction for the purposes of article 10 (construction and maintenance of new, altered or diverted streets and other structures) of this Order.

(3) In this paragraph, “as built drawings” means—

(a)drawings showing the as constructed local highways in an appropriate format;

(b)drawings showing the location for utilities installed in the local highway; and

(c)specifications for materials used for the constructed local highway.

Emergency Work

162.  Nothing in this Part of this Schedule prevents the relevant local highway authority from carrying out any work or taking such action as deemed appropriate forthwith without prior notice to the undertaker in the event of an emergency or danger to the public.

Land interests

163.  Following the issuing of the final certificate under paragraph 161 (final certificate) in respect of any part of the local highway, the undertaker must, if requested by the relevant local highway authority, in respect of a local highway which is to be maintainable by the relevant local highway authority following, and as a result of, the completion of those works either—

(a)execute and complete a transfer to the relevant local highway authority at nil consideration of any land and rights which have been compulsorily acquired under this Order and which are necessary for the maintenance and operation of a local highway; or

(b)exercise the powers under article 20 (compulsory acquisition of land) and article 28 (compulsory acquisition of rights and imposition of restrictive covenants) (as applied by article 31 (application of the 1981 Act) and 32 (modification of the 2017 Regulations)) of this Order to directly vest in the relevant local highway authority land or interest which may be necessary for the maintenance and operation of a local highway,

unless otherwise agreed between the undertaker and the relevant local highway authority.

Disputes

164.—(1) In the event of any disagreement between the Parties arising out of or in connection with this agreement which requires the agreement of the Parties jointly or the approval of the relevant local highway authority and which cannot be resolved within 10 business days of the disagreement arising, either party may request a review of the disputed issue by the parties giving notice in writing to their senior representatives.

(2) The senior representatives will consider any such request and use all reasonable endeavours in good faith to reach agreement to resolve any disagreement.

(3) Where agreement is not reached by the senior representatives within 10 business days of a request being made under sub-paragraph (1), the disagreement may be determined by arbitration as provided in article 64 (arbitration) of this Order.

(4) In this paragraph, “senior representatives” means the regional director on behalf of the undertaker and persons notified to the undertaker by the relevant local highway authority as being their senior representatives.