SCHEDULES

SCHEDULE 14PROTECTIVE PROVISIONS

PART 4FOR THE PROTECTION OF RAILWAY INTERESTS

Application

schedule 14 paragraph 29 + 29.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Company.

Interpretation

schedule 14 paragraph 30 + 30.  In this Part of this Schedule—

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

term concession agreement + “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;

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

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

term high speed 1 + “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;

term subsidiary + term associated company + term hs1 + “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.)(1) 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;

term network licence + “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)(2) of the Railways Act 1993;

term associated company + term network rail + “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;

term plans + “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;

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

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

term railway property + “railway property” means any railway belonging to the Company and—

term specified work + “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.

schedule 14 paragraph 31 + 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—

schedule 14 paragraph 31 1 a + (a)Network Rail, its network licence; and

schedule 14 paragraph 31 1 b + (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—

schedule 14 paragraph 31 2 a + (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

schedule 14 paragraph 31 2 b + (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.

schedule 14 paragraph 32 + 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.

schedule 14 paragraph 33 + 33.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 32(4) must, when commenced, be constructed—

schedule 14 paragraph 33 1 a + (a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 32;

schedule 14 paragraph 33 1 b + (b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

schedule 14 paragraph 33 1 c + (c)in such manner as to cause as little damage as is reasonably possible to railway property; and

schedule 14 paragraph 33 1 d + (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.

schedule 14 paragraph 34 + 34.—(1) The undertaker must—

schedule 14 paragraph 34 1 a + (a)at all times afford reasonable facilities to the engineer for access to a specified work or protective work during its construction; and

schedule 14 paragraph 34 1 b + (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.

schedule 14 paragraph 35 + 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.

schedule 14 paragraph 36 + 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.

schedule 14 paragraph 37 + 37.  The undertaker must repay to the Company all reasonable fees, costs, charges and expenses properly and reasonably incurred by the Company—

schedule 14 paragraph 37 a + (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;

schedule 14 paragraph 37 b + (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;

schedule 14 paragraph 37 c + (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;

schedule 14 paragraph 37 d + (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

schedule 14 paragraph 37 e + (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.

schedule 14 paragraph 38 + 38.—(1) In this paragraph—

term emi + “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;

term the companys 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)—

schedule 14 paragraph 38 4 a + (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;

schedule 14 paragraph 38 4 b + (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

schedule 14 paragraph 38 4 c + (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—

schedule 14 paragraph 38 7 a + (a)the undertaker must afford reasonable facilities to the Company for access to the undertaker’s apparatus in the investigation of such EMI;

schedule 14 paragraph 38 7 b + (b)the Company must afford reasonable facilities to the undertaker for access to the Company’s apparatus in the investigation of such EMI; and

schedule 14 paragraph 38 7 c + (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)—

schedule 14 paragraph 38 8 a + (a)the Company must allow the undertaker reasonable facilities for the inspection of the relevant part of the Company’s apparatus; and

schedule 14 paragraph 38 8 b + (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.

schedule 14 paragraph 39 + 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.

schedule 14 paragraph 40 + 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.

schedule 14 paragraph 41 + 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.

schedule 14 paragraph 42 + 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—

schedule 14 paragraph 42 1 a + (a)by reason of the construction or maintenance of a specified work or a protective work or the failure of it; or

schedule 14 paragraph 42 1 b + (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—

schedule 14 paragraph 42 2 a + (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;

schedule 14 paragraph 42 2 b + (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);

schedule 14 paragraph 42 2 c + (c)take all reasonable steps to mitigate any liabilities relating to such claims or demands; and

schedule 14 paragraph 42 2 d + (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—

schedule 14 paragraph 42 3 a + (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

schedule 14 paragraph 42 3 b + (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—

term the relevant costs + “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

term train operator + “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.

schedule 14 paragraph 43 + 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).

schedule 14 paragraph 44 + 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.

schedule 14 paragraph 45 + 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—

schedule 14 paragraph 45 a + (a)any railway property shown on the works plans or land plans and described in the book of reference;

schedule 14 paragraph 45 b + (b)any lands, works or other property held in connection with any such railway property; and

schedule 14 paragraph 45 c + (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.

schedule 14 paragraph 46 + 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.

schedule 14 paragraph 47 + 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.