SCHEDULES
SCHEDULE 14PROTECTIVE PROVISIONS
PART 4FOR THE PROTECTION OF RAILWAY INTERESTS
Interpretation
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.