SCHEDULES

SCHEDULE 8PROTECTIVE PROVISIONS

PART 6FOR THE PROTECTION OF LOCAL HIGHWAY AUTHORITIES

Application, etc.

schedule 8 paragraph 53 + 53.—(1) The provisions of this Part of this Schedule apply for the protection of local highway authorities unless otherwise agreed in writing between the undertaker and a relevant highway authority.

(2) An agreement for the purpose of sub-paragraph (1) includes, but is not limited to, an agreement made under article 17 (agreements with street authorities) of this Order, or under the 1980 Act.

(3) Any approval or consent of a local highway authority required under this Part of this Schedule—

schedule 8 paragraph 53 3 a + (a)must not be unreasonably withheld or delayed;

schedule 8 paragraph 53 3 b + (b)must be given in writing;

schedule 8 paragraph 53 3 c + (c)in the case of a refusal must be accompanied by a statement of grounds for refusal; and

schedule 8 paragraph 53 3 d + (d)may be subject to any conditions as the local highway authority reasonably considers necessary.

schedule 8 paragraph 54 + 54.—(1) In this Part of this Schedule—

term bond sum + “bond sum” means the sum equal to 150% of the costs of carrying out the specified works (to include all the costs plus the commuted sum) or such other sum agreed between the undertaker and the relevant highway authority;

term the cash surety + “the cash surety” means the sum agreed between the undertaker and the relevant highway authority, acting reasonably;

term commuted sum + “commuted sum” means such reasonable sum calculated as provided for in paragraph 67 (commuted sums) of this Part of this Schedule to be used to fund the future cost of maintaining the specified works;

term detailed design information + “detailed design information” means such drawings, specifications and other information, as are relevant to and reasonably required in respect of any specified works, to comprise the following—

term dmrb + “DMRB” means the Design Manual for Roads and Bridges 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 a relevant highway authority under paragraph 63 (maintenance) of this Part of this Schedule;

term maintenance period + “maintenance period” means the period from the date of the provisional certificate being issued to the date of the final certificate being issued, unless otherwise agreed in writing between the undertaker and the relevant highway authority;

term provisional certificate + “provisional certificate” means the certificate issued under paragraph 62 (provisional certificated) of this Part of this Schedule;

term specification for highways works + “specification for highways works” means the specification for highways works published from time to time by the relevant highway authority setting out the requirements and approvals procedures for work, goods or materials used in the construction, alteration, improvement or maintenance of the local highway network; and

term specified works + “specified works” means any part of the authorised development that involves the construction, alteration or improvement of a local highway.

term bond sum + (2) For the purposes of its obligations to procure a bond under this Part of this Schedule, the undertaker may procure a bond in relation to the specified works, and a separate bond in relation to the commuted sums, and in those circumstances references in this Part of this Schedule to “bond” and “bond sum” means both bonds together.

Detailed design information and commencement

schedule 8 paragraph 55 + 55.  Before commencing any specified works, the undertaker must—

schedule 8 paragraph 55 a + (a)provide to the relevant highway authority the detailed design information relating to those specified works and obtain the relevant highway authority’s written approval for those works; and

schedule 8 paragraph 55 b + (b)secure road space booking from the relevant highway authority, such road space booking approval not to be unreasonably withheld or delayed.

Security

schedule 8 paragraph 56 + 56.  The specified works must not commence until—

schedule 8 paragraph 56 a + (a)the undertaker procures that the specified works are secured by a bond from a bondsman first approved by the relevant highway authority, in a form agreed between the undertaker and the relevant highway authority, to indemnify the relevant highway authority against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of the exercise of the powers under this Order and the specified works under the provisions of this Part of this Schedule provided that the maximum liability of the bond must not exceed the bond sum; and

schedule 8 paragraph 56 b + (b)the undertaker has provided the cash surety which may be utilised by the relevant highway authority in the event of the undertaker failing to make payments under paragraph 61 (payments) or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker under the provisions of this Part of this Schedule.

Road safety audits

schedule 8 paragraph 57 + 57.—(1) Road safety audits required to be carried out by the undertaker under the provisions of this Part of this Schedule must be carried out in accordance with the Design Manual for Roads and Bridges standard GG119 or any replacement or modification of it.

(2) No stage of any road safety audit that is required to be carried out by the undertaker under this Part of this Schedule in relation to any specified works is to begin until the relevant highway authority has approved in writing for that stage of road safety audit of those specified works—

schedule 8 paragraph 57 2 a + (a)the curriculum vitae of the persons carrying out the road safety audit; and

schedule 8 paragraph 57 2 b + (b)the road safety audit brief.

(3) The specified works must not commence until a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised in the audit or any exceptions are approved by the relevant highway authority.

(4) Where the report of the stage 3 and 4 road safety audit identifies any recommended measures in respect of a local highway, the undertaker must carry out, at its own expense and to the reasonable satisfaction of the relevant highway authority, those measures identified as part of the stage 3 and 4 road safety audit provided that—

schedule 8 paragraph 57 4 a + (a)the undertaker has the powers to deliver the measures under this Order; and

schedule 8 paragraph 57 4 b + (b)the measures do not give rise to any new or materially different environmental effects in comparison with those identified in the environmental statement.

(5) If by the operation of sub-paragraphs (4)(a) or (4)(b) the undertaker is not required to carry out the recommendations of a stage 3 or stage 4 road safety audit the relevant highway authority may instead carry out those recommendations and recover the reasonable costs of so doing from the undertaker.

Construction of the specified works

schedule 8 paragraph 58 + 58.  The specified works must be carried out by the undertaker to the reasonable satisfaction of the relevant highway authority in accordance with—

schedule 8 paragraph 58 a + (a)the relevant detailed design information approved by the relevant highway authority under paragraph 55 or as subsequently varied by agreement between the undertaker and the relevant highway authority;

schedule 8 paragraph 58 b + (b)the DMRB, the specification for highway works, together with all other relevant standards as required by the relevant highway authority to include, inter alia, all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016(1) save to the extent that exceptions from those standards apply which have been approved by the relevant highway authority; and

schedule 8 paragraph 58 c + (c)all aspects of the Construction (Design and Management) Regulations 2015(2) or any statutory amendment or variation of the same and in particular the undertaker, as client, must ensure that all client duties (as defined in the said regulations) are undertaken to the reasonable satisfaction of the relevant highway authority.

Inspections and testing of materials

schedule 8 paragraph 59 + 59.—(1) The undertaker must allow and facilitate an appropriately qualified officer or officers of a relevant highway authority that have been nominated by that relevant highway authority (each being a “nominated officer”) to access and inspect at all reasonable times any part of the specified works during their construction and before a final certificate has been issued in respect of the specified works as is reasonably necessary to ensure that the works have been or are being carried out to the appropriate standard.

(2) Any testing reasonably requested by the relevant highway authority of materials used in any specified works must be carried out at the undertaker’s expense and in accordance with the DMRB (or any other testing specification agreed by the undertaker and the relevant highway authority acting reasonably).

(3) A relevant highway authority (or its agent) may test all or any materials used or proposed to be used in any specified works and the undertaker must provide such information, access and materials as is reasonably required to facilitate such testing.

(4) The undertaker must, as soon as is reasonably practicable, provide the relevant highway authority with a copy of all test certificates and results relevant to the specified works that the relevant highway authority has requested in writing

(5) The relevant highway authority must as soon as is reasonably practicable provide the undertaker with a copy of all test results and certificates relevant to the works that the undertaker has requested in writing.

(6) In circumstances where any relevant work carried out by the undertaker is tested by the relevant highway authority pursuant to the provisions of this Part of this Schedule 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 highway authority provided that the relevant 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.

(7) If any part of the specified works is constructed—

schedule 8 paragraph 59 7 a + (a)other than in accordance with the requirements of this Part of this Schedule; or

schedule 8 paragraph 59 7 b + (b)in a way that causes damage to the highway, highway structure or asset or any other land of the relevant highway authority,

the relevant highway authority may by notice in writing require the undertaker, at the undertaker’s own expense, to comply promptly with the requirements of this Part of this Schedule or remedy any damage notified to the undertaker under this Part of this Schedule, to the reasonable satisfaction of the relevant highway authority.

(8) If during the carrying out of the authorised development the undertaker or its appointed contractors or agents causes damage to the local highway then the relevant highway authority may by notice in writing require the undertaker, at its own expense, to remedy the damage.

(9) If within 28 days on which a notice under sub-paragraph (7) or sub-paragraph (8) is served on the undertaker (or in the event of there being, in the opinion of the relevant highway authority, a danger to highway users, within such lesser period as the relevant highway authority may stipulate), the undertaker has failed to take the steps required by that notice, the relevant highway authority may carry out the steps required of the undertaker and may recover any expenditure incurred by the relevant highway authority in so doing, such sum to be payable within 30 days of demand.

Defects in local highways constructed by the undertaker

schedule 8 paragraph 60 + 60.—(1) Until such time as a final certificate has been issued in respect of any specified works, the undertaker must make good any defects in the specified works constructed by the undertaker to the reasonable satisfaction of the relevant highway authority.

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

Payments

schedule 8 paragraph 61 + 61.—(1) The undertaker must pay to the relevant highway authority a sum equal to the whole of any costs and expenses which the relevant highway authority reasonably incurs (including costs and expenses for using internal or external staff and costs relating to any work which becomes abortive) in relation to the specified works and in relation to any approvals sought under this Order, or otherwise incurred under this Part of this Schedule, including—

schedule 8 paragraph 61 1 a + (a)the checking and approval of the information and any advice given to the undertaker relating to the design, specification and programme of the specified works generally;

schedule 8 paragraph 61 1 b + (b)the supervision of the specified works;

schedule 8 paragraph 61 1 c + (c)the checking and approval of the information required to determine approvals under this Order;

schedule 8 paragraph 61 1 d + (d)all reasonable legal, technical and administrative costs and disbursements incurred by the relevant highway authority in connection with sub-paragraphs (a)-(c); and

schedule 8 paragraph 61 1 e + (e)any value added tax which is payable by the relevant highway authority in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs,

together comprising “the costs”.

(2) The undertaker must pay to the relevant highway authority upon demand and prior to such costs being incurred the total costs that the relevant highway authority reasonably believe will be properly and necessarily incurred by the relevant highway authority in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the authorised development.

(3) The relevant highway authority must provide the undertaker with a fully itemised schedule showing its estimate of the relevant highway authority costs prior to the commencement of the specified works and the undertaker must pay to the relevant highway authority the estimate of the costs attributable to the specified works prior to commencing the specified works and in any event prior to the relevant highway authority incurring any cost.

(4) If at any time after the payment referred to in sub-paragraph (3) has become payable, the relevant highway authority reasonably believes that the costs will exceed the estimated costs it may give notice to the undertaker of the amount that it believes the costs will exceed the estimate (“the excess”) and the undertaker must pay to the relevant highway authority within 28 days of the date of the notice a sum equal to the excess.

(5) The relevant highway authority must give the undertaker a final account of the costs referred to in sub-paragraph (1) to (4) above within 30 days of the issue of the provisional certificate issued pursuant to paragraph 62 (provisional certificate).

(6) Within 28 days of the issue of the final account—

schedule 8 paragraph 61 6 a + (a)if the final account shows a further sum as due to the relevant highway authority the undertaker must pay to the relevant highway authority the sum shown due to it; and

schedule 8 paragraph 61 6 b + (b)if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by the relevant highway authority, the relevant highway authority must refund the difference to the undertaker.

(7) If any payment due under any of the provisions of this Part of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the Bank of England base lending rate from time to time being in force for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate

schedule 8 paragraph 62 + 62.—(1) Subject to sub-paragraph (2), when the undertaker considers that the specified works have reached completion so that they are available for use by the public it must apply to the relevant highway authority for a provisional certificate and must allow the relevant highway authority the opportunity to inspect the specified works to identify any defects or incomplete works (and the undertaker must make good such defects pursuant to paragraph 60 (defects in local highways constructed by the undertaker).

(2) Following an application for a provisional certificate, the relevant highway authority must as soon as reasonably practicable—

schedule 8 paragraph 62 2 a + (a)inspect the specified works; and

schedule 8 paragraph 62 2 b + (b)provide the undertaker with a written list of any works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose.

(3) When—

schedule 8 paragraph 62 3 a + (a)a stage 3 road safety audit has been carried out in respect of the works in question and any recommended measures identified in the audit have been completed and approved by the relevant highway authority;

schedule 8 paragraph 62 3 b + (b)the relevant highway authority has been provided an opportunity to inspect the specified works and the undertaker has completed any further works or measures required to address any safety deficiencies or defects identified as a result of the inspection to the reasonable satisfaction of the relevant highway authority; and

schedule 8 paragraph 62 3 c + (c)the undertaker has paid the commuted sum to the relevant highway authority,

the relevant highway authority must promptly issue the provisional certificate to the undertaker.

(4) The undertaker must submit a stage 4 road safety audit as required by and in line with the timescales stipulated in the road safety audit standard.

(5) The undertaker must comply with the findings of the stage 4 road safety standard and must pay all reasonable costs of and incidental to such and provide updated as-built information to the relevant highway authority.

Maintenance

schedule 8 paragraph 63 + 63.—(1) Notwithstanding article 12 (construction and maintenance of new, altered or diverted streets) of this Order, but subject to sub-paragraph (2), the undertaker must maintain the specified works throughout the maintenance period to a standard appropriate to their use by the public until the final certificate is issued in accordance with paragraph 64 (final certificate).

(2) Nothing in sub-paragraph (1) makes the undertaker responsible during the maintenance period for the maintenance of any highway, street works or maintenance works—

schedule 8 paragraph 63 2 a + (a)undertaken by any person other than the undertaker; or

schedule 8 paragraph 63 2 b + (b)which do not form part of the specified works.

Final certificate

schedule 8 paragraph 64 + 64.—(1) No sooner than 12 months from the date of issue of the provisional certificate the undertaker must apply in writing to the relevant highway authority for a final certificate in respect of the specified works.

(2) Following receipt of the application for a final certificate, the relevant highway authority must as soon as is reasonably practicable—

schedule 8 paragraph 64 2 a + (a)inspect the specified works; and

schedule 8 paragraph 64 2 b + (b)provide the undertaker with a written list of any further works required to remedy or make good any defect or damage in the local highway network, or confirmation that no such works are required for this purpose.

(3) The undertaker must carry out such works notified to it pursuant to sub-paragraph (2).

(4) The relevant highway authority must promptly issue the final certificate to the undertaker once the relevant highway authority is reasonably satisfied in relation to the specified works that—

schedule 8 paragraph 64 4 a + (a)any defects or damage arising from defects during the maintenance period and any defects notified to the undertaker pursuant to sub-paragraph (2) and any remedial works required as a result of the stage 4 road safety audit have been made good to the reasonable satisfaction of the relevant highway authority;

schedule 8 paragraph 64 4 b + (b)the costs have been paid to the relevant highway authority in full;

schedule 8 paragraph 64 4 c + (c)the undertaker has provided the relevant highway authority with a health and safety file in respect of the specified works to the relevant highway authority’s reasonable satisfaction; and

schedule 8 paragraph 64 4 d + (d)the undertaker has provided the relevant highway authority with such detailed design information as the relevant highway authority has requested (acting reasonably) in relation to the specified works as built.

(5) The issue of a final certificate by a relevant highway authority amounts to an acknowledgment by the relevant 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 12 (construction and maintenance of new, altered or diverted streets) of this Order.

(6) On the issue of the final certificate to the undertaker the bond is to be released in full.

Emergency work

schedule 8 paragraph 65 + 65.  Nothing in this Part of this Schedule prevents a relevant 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 8 paragraph 66 + 66.  Following the issuing of the final certificate under paragraph 63 (maintenance) in respect of any part of a local highway, the undertaker must, if requested by the relevant highway authority, in respect of a local highway which is to be maintainable by the relevant highway authority following, and as a result of, the completion of those works either—

schedule 8 paragraph 66 a + (a)execute and complete a transfer to the relevant 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 8 paragraph 66 b + (b)exercise article 24 (compulsory acquisition of land) and article 27 (compulsory acquisition of rights and imposition of restrictive covenants) of this Order to directly vest in the relevant highway authority land or rights which are necessary for the maintenance and operation of a local highway,

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

Commuted sums

schedule 8 paragraph 67 + 67.—(1) The relevant highway authority must provide to the undertaker an estimate of the commuted sum, calculated in accordance with the relevant highway authority’s published guidance or any successor guidance, prior to the commencement of the specified works.

(2) The undertaker must pay to the relevant highway authority the commuted sum prior to the issue of the provisional certificate.

Insurance

schedule 8 paragraph 68 + 68.  Prior to the commencement of specified works the undertaker must ensure that such public liability insurance in the minimum sum of £10,000,000 as the local highway authority may reasonably require for the specified works in question is in place with an insurer against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of specified works.

Indemnity

schedule 8 paragraph 69 + 69.—(1) Subject to sub-paragraphs (2) and (3) the undertaker fully indemnifies the relevant highway authority from and against all costs, claims, expenses, damages, losses and liabilities suffered by the relevant highway authority arising from the construction, maintenance or use of the specified works or exercise of or failure to exercise any power under this Order within 14 days of demand.

(2) Sub-paragraph (1) does not apply to costs, claims, expenses, damages, losses and liabilities which were caused by or arose out of the negligence or default of the relevant highway authority or its officers, servants, agents or contractors or any person or body for whom it is responsible.

(3) If any person makes a claim or notifies an intention to make a claim against the relevant highway authority which may reasonably be considered likely to give rise to a liability under this paragraph then the relevant highway authority must—

schedule 8 paragraph 69 3 a + (a)as soon as reasonably practicable give the undertaker reasonable notice of any such third party claim or demand, specifying the nature of the indemnity liability in reasonable detail; and

schedule 8 paragraph 69 3 b + (b)not make any admission of liability, agreement or compromise in relation to the indemnity liability without first consulting the undertaker and considering their representations.

(4) The relevant highway authority must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under this paragraph applies where it is within the relevant highway authority’s reasonable gift and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of the relevant highway authority’s control. The relevant highway authority must provide an explanation of how any claim has been mitigated or minimised or where mitigation or minimisation is not possible an explanation as to why, if reasonably requested to do so by the undertaker and only in relation to costs that are incurred which are within the relevant highway authority’s direct control.