SCHEDULES

SCHEDULE 14PROTECTIVE PROVISIONS

PART 11FOR THE PROTECTION OF LOCAL HIGHWAY AUTHORITIES

Application

schedule 14 paragraph 151 + 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

schedule 14 paragraph 152 + 152.  In this Part of this Schedule—

term detailed design + “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;

term detailed information + “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—

term dmrb + “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;

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

term local highway + “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;

term maintenance period + “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;

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

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

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

Design input and commencement

schedule 14 paragraph 153 + 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).

schedule 14 paragraph 154 + 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—

schedule 14 paragraph 154 1 a + (a)communications and customer care arrangements for communication with stakeholders and the local community including—

schedule 14 paragraph 154 1 a i + (i)the identity of the party responsible for each activity;

schedule 14 paragraph 154 1 a ii + (ii)the identity of the contractor responsible for stakeholder engagement and communication; and

schedule 14 paragraph 154 1 a iii + (iii)defined timescales for contractor responses to responses to communications;

schedule 14 paragraph 154 1 b + (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);

schedule 14 paragraph 154 1 c + (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;

schedule 14 paragraph 154 1 d + (d)winter maintenance including anticipated winter treatments and severe weather arrangements to apply during the construction period and the maintenance period;

schedule 14 paragraph 154 1 e + (e)repair arrangements in relation to local highways directly affected by the construction of the authorised development;

schedule 14 paragraph 154 1 f + (f)continuity of technology arrangements to apply during the construction period and the maintenance period;

schedule 14 paragraph 154 1 g + (g)arrangements for dealing with and recording incidents during the construction period and the maintenance period including appropriate provision of recovery vehicles; and

schedule 14 paragraph 154 1 h + (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

schedule 14 paragraph 155 + 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

schedule 14 paragraph 156 + 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

schedule 14 paragraph 157 + 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

schedule 14 paragraph 158 + 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

schedule 14 paragraph 159 + 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—

schedule 14 paragraph 159 2 a + (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

schedule 14 paragraph 159 2 b + (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

schedule 14 paragraph 160 + 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

schedule 14 paragraph 161 + 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—

schedule 14 paragraph 161 1 a + (a)the maintenance period has elapsed;

schedule 14 paragraph 161 1 b + (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;

schedule 14 paragraph 161 1 c + (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;

schedule 14 paragraph 161 1 d + (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;

schedule 14 paragraph 161 1 e + (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

schedule 14 paragraph 161 1 f + (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.

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

schedule 14 paragraph 161 3 a + (a)drawings showing the as constructed local highways in an appropriate format;

schedule 14 paragraph 161 3 b + (b)drawings showing the location for utilities installed in the local highway; and

schedule 14 paragraph 161 3 c + (c)specifications for materials used for the constructed local highway.

Emergency Work

schedule 14 paragraph 162 + 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

schedule 14 paragraph 163 + 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—

schedule 14 paragraph 163 a + (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

schedule 14 paragraph 163 b + (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

schedule 14 paragraph 164 + 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.

term senior representatives + (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.