SCHEDULES

Article 50

SCHEDULE 10PROTECTIVE PROVISIONS

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

Application

schedule 10 part 1 paragraph 1 + 1.  For the protection of the affected undertakers referred to in this Part 1 of Schedule 10 (Application) the following provisions must, unless otherwise agreed in writing between the undertaker and the affected undertaking concerned, have effect.

schedule 10 part 1 paragraph 2 + 2.  In this Part—

term affected undertaker + “affected undertaker” means—

for the area of the authorised development but, for the avoidance of doubt, does not include the undertakers specified in Part 3, Part 4 and Part 5 of this Schedule, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained;

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

term apparatus + “apparatus” means—

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

term functions + “functions” includes powers and duties; and

“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.

Precedence of the 1991 Act in respect of apparatus in the streets

schedule 10 part 1 paragraph 3 + 3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

No acquisition etc. except by agreement

schedule 10 part 1 paragraph 4 + 4.  Regardless of any provision in this Order or anything shown on the land plans onshore, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

schedule 10 part 1 paragraph 5 + 5.—(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, that apparatus must not be removed under this Part of this Schedule and any right of an affected 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 affected undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question 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 an affected undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the affected 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 affected undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable 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 affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 46 (arbitration).

(5) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 46 (arbitration) and after the grant to the affected undertaker 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.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the affected undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertaker.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

schedule 10 part 1 paragraph 6 + 6.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected 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 must be granted upon such terms and conditions as may be agreed between the undertaker and the affected undertaker in question or in default of agreement settled by arbitration in accordance with article 46 (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 affected 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 affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

schedule 10 part 1 paragraph 7 + 7.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5 that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5, the undertaker must submit to the affected undertaker in question a plan, section and description of the works to be executed.

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

(3) Any requirements made by an affected undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If an affected undertaker in accordance with sub-paragraph (2) 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 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(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, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the affected undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

schedule 10 part 1 paragraph 8 + 8.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected 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 5.

(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—

schedule 10 part 1 paragraph 8 3 a + (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

schedule 10 part 1 paragraph 8 3 b + (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,

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 46 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part 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 affected 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)—

schedule 10 part 1 paragraph 8 4 a + (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

schedule 10 part 1 paragraph 8 4 b + (b)where the provision of a joint in a 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 an affected undertaker in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than seven years and six months earlier so as to confer on the affected 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.

Expenses and costs

schedule 10 part 1 paragraph 9 + 9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5, any damage is caused to any 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 an affected undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertaker, the undertaker must—

schedule 10 part 1 paragraph 9 1 a + (a)bear and pay the cost reasonably incurred by that affected undertaker in making good such damage or restoring the supply; and

schedule 10 part 1 paragraph 9 1 b + (b)make reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected undertaker,

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 affected undertaker, its officers, servants, contractors or agents.

(3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

schedule 10 part 1 paragraph 10 + 10.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an affected 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 2PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

schedule 10 part 2 paragraph 1 + 1.—(1) For the protection of any operator, the following provisions have effect unless otherwise agreed in writing between the undertaker and the operator.

(2) In this part of this Schedule—

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

term the electronic communications code + “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

term electronic communications code network + “electronic communications code network” means—

term electronic communications code operator + “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;

term infrastructure system + “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 of that code; and

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

schedule 10 part 2 paragraph 2 + 2.  The exercise of the powers of article 34 (statutory undertakers) are subject to Part 10 of Schedule 3A (the electronics communications code) to the 2003 Act.

schedule 10 part 2 paragraph 3 + 3.—(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—

schedule 10 part 2 paragraph 3 1 an1 + (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

schedule 10 part 2 paragraph 3 1 bn1 + (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 must make reasonable compensation to an operator—

schedule 10 part 2 paragraph 3 1 an2 + (a)for loss sustained by it; and

schedule 10 part 2 paragraph 3 1 bn2 + (b)in respect of claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, an operator 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 may be made without the consent of the undertaker which, if it withholds such consent, is to have 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 paragraph must be referred to and settled by arbitration under article 46 (arbitration).

schedule 10 part 2 paragraph 4 + 4.  This part of this Schedule does not apply to—

schedule 10 part 2 paragraph 4 a + (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

schedule 10 part 2 paragraph 4 b + (b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

schedule 10 part 2 paragraph 5 + 5.  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 NATIONAL GRID ELECTRICITY TRANSMISSION PLC AS ELECTRICITY UNDERTAKER

Application

schedule 10 part 3 paragraph 1 + 1.—(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 5 (benefit of Order)—

schedule 10 paragraph 1 2 a + (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

schedule 10 paragraph 1 2 b + (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.

Interpretation

schedule 10 part 3 paragraph 2 + 2.  In this Part of this Schedule—

term acceptable credit provider + “acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than—

term acceptable insurance + “acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of not less than £50,000,000.00 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance shall be maintained during the construction period of the authorised works and arranged with an insurer whose security/credit rating meets the same requirements as an “acceptable credit provider”, such insurance shall cover (without limitation)—

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

term apparatus + “apparatus” means any electric lines or electrical plant as defined in 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 and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

term authorised works + “authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

“commence” and “commencement” in this Part of this Schedule shall include any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

term functions + “functions” includes powers and duties;

term ground mitigation scheme + “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;

term ground monitoring scheme + “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, shall require the undertaker to submit for National Grid’s approval a ground mitigation scheme;

term ground subsidence event + “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;

term incentive deduction + “incentive deduction” means any incentive deduction National Grid Electricity Transmission plc receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised works;

“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Grid: construct, use, repair, alter, inspect, renew or remove the apparatus;

term national grid + “National Grid” means National Grid Electricity Transmission Plc (Company Number 2366977) 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;

term ngeso + “NGESO” has the same meaning as defined in the STC;

“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;

term parent company + “parent company” means a parent company of the undertaker acceptable to and which shall have been approved by National Grid acting reasonably;

term specified works + “specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

term stc + “STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and NGESO as modified from time to time;

term stc claims + “STC Claims” means any claim made under the STC against National Grid Electricity Transmission plc arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid Electricity Transmission plc’s transmission system which arises as a result of the authorised works;

term transmission owner + “Transmission Owner” has the same meaning as defined in the STC; and

Apparatus of National Grid in closed streets

schedule 10 part 3 paragraph 3 + 3.  Notwithstanding the temporary closure or diversion of any highway under the powers of article 11 (temporary closure of streets), National Grid 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

schedule 10 part 3 paragraph 4 + 4.  The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid.

Acquisition of land

schedule 10 part 3 paragraph 5 + 5.—(1) Regardless of any provision in this Order or anything shown on the land plans onshore or contained in the book of reference to this Order, the undertaker may not (a) appropriate or acquire or take temporary possession of any land or apparatus or (b) appropriate, acquire, extinguish, interfere with to override any easement, other interest or right and/or apparatus of National Grid otherwise than by agreement between the undertaker and National Grid.

(2) As a condition of an agreement between the parties pursuant to sub-paragraph (1), prior to the carrying out of any part of the authorised works (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/or secure the consent and entering into of such deeds and variations by all other parties with an interest in the land at that time who are affected by such authorised works.

(3) Save where otherwise agreed in writing between National Grid and the undertaker 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 and/or removal of apparatus including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid and/or other enactments relied upon by National Grid as a right or other use in relation to the apparatus, then the provisions in this Schedule shall prevail.

(4) Any agreement or consent granted by National Grid under any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

schedule 10 part 3 paragraph 6 + 6.—(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 not less than 56 days 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), secure any necessary consents for the alternative apparatus and afford to National Grid to its satisfaction (taking into account paragraph 7(1)) the necessary facilities and rights—

schedule 10 part 3 paragraph 6 2 a + (a)for the construction of alternative apparatus in other land of or land secured by the undertaker; and

schedule 10 part 3 paragraph 6 2 b + (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 to assist the undertaker to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall 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 a written diversion agreement having been entered into between the parties and the grant to National Grid 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.

Facilities and rights for alternative apparatus

schedule 10 part 3 paragraph 7 + 7.—(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 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 14 (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

schedule 10 part 3 paragraph 8 + 8.—(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 its electricity assets.

(2) In relation to specified works the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

schedule 10 part 3 paragraph 8 2 a + (a)the exact position of the works;

schedule 10 part 3 paragraph 8 2 b + (b)the level at which these are proposed to be constructed or renewed;

schedule 10 part 3 paragraph 8 2 c + (c)the manner of their construction or renewal including details of excavation and positioning of plant;

schedule 10 part 3 paragraph 8 2 d + (d)the position of all apparatus;

schedule 10 part 3 paragraph 8 2 e + (e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

schedule 10 part 3 paragraph 8 2 f + (f)any intended maintenance regimes;

schedule 10 paragraph 8 2 g + (g)an assessment of risks of rise of earth issues; and

schedule 10 paragraph 8 2 h + (h)a ground monitoring scheme, where required.

(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—

schedule 10 part 3 paragraph 8 3 a + (a)details of any cable trench design including route, dimensions and clearance to pylon foundations;

schedule 10 part 3 paragraph 8 3 b + (b)demonstration that pylon foundations will not be affected prior to, during and post construction;

schedule 10 part 3 paragraph 8 3 c + (c)details of load bearing capacities of trenches;

schedule 10 paragraph 8 3 d + (d)details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;

schedule 10 paragraph 8 3 e + (e)a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;

schedule 10 paragraph 8 3 f + (f)written details of the operations and maintenance regime for any cable, including frequency and method of access;

schedule 10 paragraph 8 3 g + (g)assessment of earth rise potential if reasonably required by National Grid’s engineers; and

schedule 10 paragraph 8 3 h + (h)evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to and including 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)—

schedule 10 part 3 paragraph 8 5 a + (a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and

schedule 10 part 3 paragraph 8 5 b + (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 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 reasonable satisfaction prior to the commencement of any authorised development (or any relevant part thereof) for which protective works are required and National Grid shall 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 1 to 3 and 5 to 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

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

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act 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), (7) and (8) insofar as is reasonably practicable in the circumstances and comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under the Order, the undertaker must comply with National Grid’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Expenses

schedule 10 part 3 paragraph 9 + 9.—(1) Save where otherwise agreed in writing between National Grid and the undertaker and 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 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 direct consequence of the execution of any authorised works including without limitation—

schedule 10 part 3 paragraph 9 1 a + (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—

schedule 10 part 3 paragraph 9 1 a i + (i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 6(3); or

schedule 10 part 3 paragraph 9 1 a ii + (ii)exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

schedule 10 part 3 paragraph 9 1 b + (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;

schedule 10 part 3 paragraph 9 1 c + (c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

schedule 10 part 3 paragraph 9 1 d + (d)the approval of plans;

schedule 10 part 3 paragraph 9 1 e + (e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and

schedule 10 part 3 paragraph 9 1 f + (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—

schedule 10 part 3 paragraph 9 3 a + (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

schedule 10 part 3 paragraph 9 3 b + (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 14 (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)—

schedule 10 part 3 paragraph 9 4 a + (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

schedule 10 part 3 paragraph 9 4 b + (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 seven years and six 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

schedule 10 part 3 paragraph 10 + 10.—(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 works 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 of 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 works) 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—

schedule 10 part 3 paragraph 10 1 a + (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

schedule 10 part 3 paragraph 10 1 b + (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 and including STC Claims or an incentive deduction other than that 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 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) shall impose any liability on the undertaker in respect of—

schedule 10 part 3 paragraph 10 3 a + (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;

schedule 10 part 3 paragraph 10 3 b + (b)any authorised works and/or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Actor article 5 (benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph (3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 10; and/or

schedule 10 paragraph 10 3 c + (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) 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.

(7) The undertaker must not commence construction (and not permit the commencement of such construction) of the authorised works on any land owned by National Grid or in respect of which National Grid has an easement or wayleave for its apparatus or any other interest or to carry out any works within 15 metres of National Grid’s apparatus unless and until National Grid is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to National Grid that it shall maintain such acceptable insurance for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and National Grid has confirmed the same in writing to the undertaker.

(8) In the event that the undertaker fails to comply with paragraph 10(7) of this Part of this Schedule, nothing in this Part of this Schedule shall prevent National Grid from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Enactments and agreements

schedule 10 part 3 paragraph 11 + 11.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Grid and the undertaker, 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

schedule 10 part 3 paragraph 12 + 12.—(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 6(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 8, the undertaker shall 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 works and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid shall use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever National Grid’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

schedule 10 part 3 paragraph 13 + 13.  If in consequence of 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

schedule 10 part 3 paragraph 14 + 14.  Save for differences or disputes arising under paragraphs 6(2), 6(4) and 8 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 46 (arbitration).

Notices

schedule 10 part 3 paragraph 15 + 15.  Notwithstanding article 55 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 8 must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 4FOR THE PROTECTION OF SOUTHERN ELECTRIC POWER DISTRIBUTION PLC AS ELECTRICITY UNDERTAKER

Application

schedule 10 part 4 paragraph 1 + 1.  For the protection of SSE the following provisions will, unless otherwise agreed in writing between the undertaker and SSE, have effect.

Interpretation

schedule 10 part 4 paragraph 2 + 2.  In this Part of this Schedule—

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

term apparatus + “apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989 belonging to or maintained by SSE;

term authorised works + “authorised works” has the same meaning as is given to the term “authorised development” in article 2 of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

term commence + “commence” has the same meaning as in article 2 of this Order and commencement shall be construed to have the same meaning save that for the purposes of this Part of this Schedule the terms commence and commencement include operations consisting of archaeological investigations, intrusive investigations for the purpose of assessing ground conditions, and remedial work in respect of any contamination or other adverse ground conditions;

term functions + “functions” includes powers and duties;

term ground mitigation scheme + “ground mitigation scheme” means a scheme approved by SSE (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

term ground monitoring scheme + “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, shall require the undertaker to submit for SSE’s approval a ground mitigation scheme;

term ground subsidence event + “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” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of SSE including to construct, inspect, maintain, use, repair, renew or remove the apparatus;

“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;

term parent company + “parent company” means a parent company of the undertaker acceptable to SSE and which shall have been approved by SSE acting reasonably;

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

term sse + “SSE” means Southern Electric Power Distribution plc (company number 04094290 whose registered office is at No. 1 Forbury Place, 43 Forbury Road, Reading, United Kingdom, RG1 3JH) or its successors in title or successor bodies and/or any successor as an electricity distribution licence holder pursuant to the Electricity Act 1989;

term sses undertaking + “SSE’s undertaking” means the rights, duties and obligations of SSE as an electricity distribution licence holder within the meaning of the Electricity Act 1989;

term specified works + “specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

On Street apparatus

schedule 10 part 4 paragraph 3 + 3.—(1) The provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SSE are regulated by the provisions of Part 3 of the 1991 Act.

(2) Paragraphs 6 and 7 of this Part of this Schedule shall apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway.

Apparatus of SSE in stopped up streets

schedule 10 part 4 paragraph 4 + 4.—(1) Notwithstanding the temporary closure or diversion of any highway under the powers of article 11 (temporary closure of streets), SSE will be at liberty at all times to take all necessary access across any such closed highway and/or to execute and do all such works and things in, upon or under any such highway as it would have been entitled to do immediately before such temporary closure or diversion in respect of any apparatus which at the time of the closure or diversion was in that highway subject to serving 7 days’ notice on the undertaker (save in cases of emergency).

(2) The protective provisions in this Part of this Schedule apply and take precedence over article 35 (apparatus and rights of statutory undertakers in stopped up streets) of the Order which shall not apply to SSE.

Protective works to buildings

schedule 10 part 4 paragraph 5 + 5.—(1) The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of SSE (not to be unreasonably withheld or delayed) and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of SSE or any interruption in the distribution of electricity by SSE, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by SSE in making good such damage or restoring the supply; and, subject to sub-paragraph (2), shall pay reasonable compensation to SSE for—

schedule 10 part 4 paragraph 5 1 a + (a)any loss sustained by it; and

schedule 10 part 4 paragraph 5 1 b + (b)all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by SSE, by reason of any such damage or interruption.

(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of SSE or its contractors or workmen, and SSE will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise with any third party thereof shall be made by SSE, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Removal of apparatus

schedule 10 part 4 paragraph 6 + 6.—(1) If, in consequence of the powers granted under this Order, 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 SSE to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the rights and facilities referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of SSE and in accordance with sub-paragraphs (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 SSE 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 SSE reasonably needs to move or remove any of its apparatus) the undertaker must afford to SSE, to its reasonable satisfaction (taking into account paragraph 7(1)), the necessary facilities and rights—

schedule 10 part 4 paragraph 6 2 a + (a)for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SSE in respect of the apparatus);

schedule 10 part 4 paragraph 6 2 b + (b)subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SSE in respect of the apparatus); and

schedule 10 part 4 paragraph 6 2 c + (c)to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SSE in respect of the 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, SSE may, 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.

(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 SSE and the undertaker.

(5) SSE must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to, or procurement by, SSE of such facilities and rights as are referred to in sub-paragraphs (2) or (3) have been afforded to SSE to its reasonable satisfaction, 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

schedule 10 part 4 paragraph 7 + 7.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for SSE 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 SSE and must be no less favourable on the whole to SSE than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by SSE.

(2) If the facilities and rights to be afforded by the undertaker and agreed with SSE 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 SSE than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed (in SSE’s opinion) then the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 14 (arbitration) of this Part of this Schedule and the arbitrator shall make such provision for the payment of compensation by the undertaker to SSE as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of SSE

schedule 10 part 4 paragraph 8 + 8.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to SSE a plan and, if reasonably required by SSE, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to SSE under sub-paragraph (1) must include a method statement and describe—

schedule 10 part 4 paragraph 8 2 a + (a)the exact position of the works;

schedule 10 part 4 paragraph 8 2 b + (b)the level at which these are proposed to be constructed or renewed;

schedule 10 part 4 paragraph 8 2 c + (c)the manner of their construction or renewal including details of excavation and positioning of plant etc;

schedule 10 part 4 paragraph 8 2 d + (d)the position of all apparatus;

schedule 10 part 4 paragraph 8 2 e + (e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

schedule 10 part 4 paragraph 8 2 f + (f)any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until SSE has given written approval of the plan so submitted.

(4) Any approval of SSE required under sub-paragraph (3)—

schedule 10 part 4 paragraph 8 4 a + (a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and,

schedule 10 part 4 paragraph 8 4 b + (b)must not be unreasonably withheld.

(5) In relation to any work to which sub-paragraphs (1) and/or (2) apply, SSE may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing 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) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or, as relevant, sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and SSE and in accordance with all conditions imposed under sub-paragraph (4)(a), and SSE will be entitled to watch and inspect the execution of those works.

(7) Any requirements made by SSE under sub-paragraph (5) must be notified to the undertaker within a period of 56 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(8) Where SSE 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 SSE’s reasonable satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required prior to commencement.

(9) If SSE, 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 6(2) to 6(5) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

(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 authorised 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.

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to SSE notice as soon as is reasonably practicable and a plan of those works and must comply with—

schedule 10 part 4 paragraph 8 11 a + (a)the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and

schedule 10 part 4 paragraph 8 11 b + (b)sub-paragraph (12) at all times.

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that SSE 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 10.

Retained apparatus: protection of SSE as electricity undertaker – overhead lines

schedule 10 part 4 paragraph 9 + 9.—(1) Not less than 56 days before the commencement of any specified work that does not require the removal of apparatus under paragraph 6(2) (removal of apparatus) the undertaker must submit to SSE a plan and seek from SSE details of the underground extent of its electricity tower foundations.

(2) The plan to be submitted under sub-paragraph (1) must show—

schedule 10 paragraph 9 2 a + (a)the exact position of the specified work;

schedule 10 paragraph 9 2 b + (b)the level at which the specified work is proposed to be constructed or renewed;

schedule 10 paragraph 9 2 c + (c)the manner of the construction or renewal of the specified work including details of excavation and positioning of plant;

schedule 10 paragraph 9 2 d + (d)the position of all apparatus;

schedule 10 paragraph 9 2 e + (e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

schedule 10 paragraph 9 2 f + (f)details of any ground monitoring scheme if required.

(3) In relation to any works which will or may be situated on, over, under or within 15 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 include a method statement which must, in addition to the matters set out in sub-paragraph (2)—

schedule 10 part 4 paragraph 9 3 a + (a)describe details of any cable trench design including route, dimensions and clearance to pylon foundations;

schedule 10 part 4 paragraph 9 3 b + (b)demonstrate that pylon foundations will not be affected prior to, during and post construction;

schedule 10 paragraph 9 3 c + (c)describe details of load bearing capacities of trenches;

schedule 10 paragraph 9 3 d + (d)describe details of cable installation methodology, including access arrangements, jointing bays and backfill methodology;

schedule 10 paragraph 9 3 e + (e)provide a written management plan for high voltage hazard during construction and on-going maintenance of the cable route;

schedule 10 paragraph 9 3 f + (f)provide written details of the operations and maintenance regime for the cable, including frequency and method of access;

schedule 10 paragraph 9 3 g + (g)assess earth rise potential if reasonably required by SSE’s engineers; and

schedule 10 paragraph 9 3 h + (h)provide evidence that trench bearing capacity is to be designed to 26 tonnes to take the weight of overhead line construction traffic.

(4) The undertaker must not commence any works requiring the submission of a plan under sub-paragraph (1) until SSE has given written approval of the plan so submitted.

(5) Any approval of SSE required in relation to a plan submitted under sub-paragraph (1)—

schedule 10 paragraph 9 5 a + (a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (6); and

schedule 10 paragraph 9 5 b + (b)must not be unreasonably withheld.

(6) Any conditions made by SSE under sub-paragraph (5) must be notified to the undertaker within a period of 56 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(7) In relation to any work requiring the submission of a plan under sub-paragraph (1), SSE may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(8) Works requiring the submission of a plan under sub-paragraph (1) must be executed only in accordance with the plan, as amended from time to time by agreement between the undertaker and SSE and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (6), (9) or (10) by SSE for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and SSE is to be entitled to watch and inspect the execution of those works.

(9) Where SSE requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to SSE’s satisfaction prior to the commencement of works requiring the submission of a plan under sub-paragraph (1) and SSE must give 56 days’ notice of such works from the date of submission of the plan (except in an emergency).

(10) If SSE, in accordance with sub-paragraphs (6) or (9) 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 6(2) to (5) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

(11) 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 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.

(12) 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 SSE notice as soon as is reasonably practicable a plan of those works and must—

schedule 10 paragraph 9 12 a + (a)comply with conditions imposed under sub-paragraph (5)(a) insofar as is reasonably practicable in the circumstances; and

schedule 10 paragraph 9 12 b + (b)comply with sub-paragraph (13) at all times.

(13) As soon as reasonably practicable after any ground subsidence event, the undertaker must implement an appropriate ground mitigation scheme.

Expenses

schedule 10 part 4 paragraph 10 + 10.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to SSE on demand all charges, costs and expenses reasonably anticipated or incurred by SSE for, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or rights or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule, including, without limitation—

schedule 10 part 4 paragraph 10 1 a + (a)any costs reasonably incurred by, or compensation properly paid by, SSE in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including, without limitation, all costs (including professional fees) reasonably incurred by SSE as a consequence of SSE—

schedule 10 paragraph 10 1 a i + (i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 6(3) if it elects to do so; and/or

schedule 10 paragraph 10 1 a ii + (ii)exercising any compulsory purchase powers in the Order transferred to or benefitting SSE;

schedule 10 part 4 paragraph 10 1 b + (b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

schedule 10 paragraph 10 1 c + (c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

schedule 10 paragraph 10 1 d + (d)the approval of plans;

schedule 10 paragraph 10 1 e + (e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

schedule 10 paragraph 10 1 f + (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 provided these are directly related and proportionate to such works; and

schedule 10 paragraph 10 1 g + (g)any watching brief pursuant to paragraph 8(6) or paragraph 9(8).

(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—

schedule 10 part 4 paragraph 10 3 a + (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

schedule 10 part 4 paragraph 10 3 b + (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 14 (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 SSE by virtue of sub-paragraph (1) will be reduced by the amount of that excess, save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) 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)—

schedule 10 part 4 paragraph 10 4 a + (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

schedule 10 part 4 paragraph 10 4 b + (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 SSE in respect of works by virtue of sub-paragraph (1) must, 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 affected 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.

(6) Where SSE demands payment of reasonably anticipated charges, costs and expenses pursuant to sub-paragraph (1), SSE must provide the undertaker with an itemised invoice or claim detailing such charges, costs, and expenses reasonably anticipated to fall due within the following three months of such a demand, The undertaker shall pay the reasonably anticipated costs set out in the itemised invoice to SSE on demand in accordance with sub-paragraph (1). To the extent that this sum paid in advance has not been expended by SSE within six months after payment by the undertaker of that sum, the undertaker may demand the unspent balance remaining to be repaid by SSE and SSE shall repay that unspent balance within 30 days (unless otherwise agreed in writing between the parties).

Enactments and agreements

schedule 10 part 4 paragraph 11 + 11.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between SSE and the undertaker, nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and SSE 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

schedule 10 part 4 paragraph 12 + 12.—(1) Where in consequence of the proposed construction of any of the authorised works the undertaker or SSE requires the removal of apparatus under paragraph 6(2) or SSE makes requirements for the protection or alteration of apparatus under paragraphs 8 or 9, the undertaker shall 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 SSE’s undertaking, and SSE shall use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt, whenever SSE’s consent, agreement or approval is required in relation to plans, documents or other information submitted by SSE or the taking of action by SSE, it must not be unreasonably withheld or delayed.

Access

schedule 10 part 4 paragraph 13 + 13.  If in consequence of the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SSE in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable SSE to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

schedule 10 part 4 paragraph 14 + 14.  Save for differences or disputes arising under paragraph 8 and paragraph 9 any difference or dispute arising between the undertaker and SSE under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and SSE, be determined by arbitration in accordance with article 46 (arbitration) of the Order.

Notices

schedule 10 part 4 paragraph 15 + 15.  The plans submitted to SSE by the undertaker pursuant to paragraphs 8(1) and 9(1) must be sent to SSE at No. 1 Forbury Place, 43 Forbury Road, Reading, United Kingdom, RG1 3JH and at Raaj.Bains@sse.com or such other address as SSE may from time to time appoint instead for that purpose and notify to the undertaker.

PART 5FOR THE PROTECTION OF SOUTHERN GAS NETWORKS PLC AS GAS UNDERTAKER

Application

schedule 10 part 5 paragraph 1 + 1.  For the protection of SGN the following provisions will, unless otherwise agreed in writing between the undertaker and SGN, have effect.

Interpretation

schedule 10 part 5 paragraph 2 + 2.  In this Part of this Schedule—

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

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

term authorised works + “authorised works” has the same meaning as is given to the term “authorised development” in article 2 of this Order and includes any associated development authorised by this Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

term commencement + term commence + “commence” has the same meaning as in article 2 and “commencement” is to be construed to have the same meaning;

term functions + “functions” includes powers and duties;

term ground mitigation scheme + “ground mitigation scheme” means a scheme approved by SGN (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

term ground monitoring scheme + “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, shall require the undertaker to submit for SGN’s approval a ground mitigation scheme;

term ground subsidence event + “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” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of SGN including retain, lay, construct, inspect, maintain, protect, use, access, replace, renew, remove, decommission or render unusable or remove the apparatus;

“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;

term parent company + “parent company” means a parent company of the undertaker acceptable to SGN and which shall have been approved by SGN acting reasonably;

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

term sgn + “SGN” means Southern Gas Networks plc or its successors in title or successor bodies and/or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

term specified works + “specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

On street apparatus

schedule 10 part 5 paragraph 3 + 3.—(1) The provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SGN are regulated by the provisions of Part 3 of the 1991 Act.

(2) Paragraphs 6 (removal of apparatus) and 7 (facilities and rights for alternative apparatus) of this Part of this Schedule shall apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway.

Apparatus of SGN in temporarily closed streets

schedule 10 part 5 paragraph 4 + 4.  Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 11 (temporary closure of streets) SGN will be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as it would have been entitled to do immediately before such temporary stopping up or diversion in respect of any apparatus which, at the time of the stopping up or diversion, was in that highway subject to serving seven days’ notice on the undertaker (save in cases of emergency).

Protective works to buildings

schedule 10 part 5 paragraph 5 + 5.—(1) The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of SGN (such consent not to be unreasonably withheld or delayed) and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of SGN or any interruption in the supply of gas by SGN, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by SGN in making good such damage or restoring the supply and, subject to sub-paragraph (2), will pay reasonable compensation to SGN for—

schedule 10 part 5 paragraph 5 1 a + (a)any loss sustained by it; and

schedule 10 part 5 paragraph 5 1 b + (b)all claims, demands, proceedings, costs, damages and expenses which have been made or taken against or recovered from or incurred by SGN, by reason of any such damage or interruption.

(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of SGN or its contractors or workmen; and SGN will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise with any third party is to be made by SGN, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Removal of apparatus

schedule 10 part 5 paragraph 6 + 6.—(1) If, in consequence of the powers granted under this Order 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 SGN to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the rights and facilities referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of SGN and in accordance with sub-paragraphs (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 SGN 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 SGN reasonably needs to move or remove any of its apparatus), the undertaker must afford to SGN to its reasonable satisfaction (taking into account paragraph 7(1)) the necessary facilities and rights—

schedule 10 part 5 paragraph 6 2 a + (a)for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus);

schedule 10 part 5 paragraph 6 2 b + (b)subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus); and

schedule 10 part 5 paragraph 6 2 c + (c)to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the 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, SGN 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 shall not extend to the requirement for SGN 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 SGN and the undertaker.

(5) SGN must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to, or procurement by, SGN of such facilities and rights as are referred to in sub-paragraphs (2) or (3) have been afforded to SGN to its reasonable satisfaction, 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

schedule 10 part 5 paragraph 7 + 7.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for SGN 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 SGN and must be no less favourable on the whole to SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by SGN.

(2) If the facilities and rights to be afforded by the undertaker and agreed with SGN 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 SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed (in SGN’s opinion) then the terms and conditions to which those facilities and rights are subject will be referred to arbitration in accordance with paragraph 13 (arbitration) of this Part of this Schedule and the arbitrator is to make such provision for the payment of compensation by the undertaker to SGN as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of SGN

schedule 10 part 5 paragraph 8 + 8.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to SGN a plan and, if reasonably required by SGN, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to SGN under sub-paragraph (1) must include a method statement and describe—

schedule 10 part 5 paragraph 8 2 a + (a)the exact position of the works;

schedule 10 part 5 paragraph 8 2 b + (b)the level at which these are proposed to be constructed or renewed;

schedule 10 part 5 paragraph 8 2 c + (c)the manner of their construction or renewal including details of excavation and positioning of plant etc.;

schedule 10 part 5 paragraph 8 2 d + (d)the position of all apparatus;

schedule 10 part 5 paragraph 8 2 e + (e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

schedule 10 part 5 paragraph 8 2 f + (f)any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until SGN has given written approval of the plan so submitted.

(4) Any approval of SGN required under sub-paragraph (3)—

schedule 10 part 5 paragraph 8 4 a + (a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and

schedule 10 part 5 paragraph 8 4 b + (b)must not be unreasonably withheld.

(5) In relation to any work to which sub-paragraphs (1) and/or (2) apply, SGN may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing 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) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and SGN and in accordance with all conditions imposed under sub-paragraph (4)(a), and SGN will be entitled to watch and inspect the execution of those works.

(7) Any requirements made by SGN under sub-paragraph (5) must be notified to the undertaker within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(8) Where SGN 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 SGN’s reasonable satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required prior to commencement.

(9) If SGN, 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 6(2).

(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 authorised 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. For the avoidance of doubt this does not apply where the undertaker submits a new plan to comply with requirements notified to the undertaker by SGN in accordance with sub-paragraph (5), subject always to sub-paragraph (3).

(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 SGN notice as soon as is reasonably practicable and a plan of those works and must comply with—

schedule 10 part 5 paragraph 8 11 a + (a)the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and

schedule 10 part 5 paragraph 8 11 b + (b)sub-paragraph (12) at all times.

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works, the undertaker must implement an appropriate ground mitigation scheme save that SGN 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 9.

(13) An approval of SGN required under sub-paragraphs (4) or (8) will be deemed to be granted 14 days after the expiry of the 56 day period if no response to the request for approval has been provided within that initial 56 day period.

Expenses

schedule 10 part 5 paragraph 9 + 9.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to SGN on demand all charges, costs and expenses incurred by SGN and all reasonably anticipated charges, costs and expenses incurred by SGN (on provision of evidence by SGN to justify its claim) in or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or rights or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including, without limitation—

schedule 10 part 5 paragraph 9 1 a + (a)any costs reasonably incurred by or compensation properly paid by SGN in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) reasonably incurred by SGN as a consequence of SGN—

schedule 10 part 5 paragraph 9 1 a i + (i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 6(3) if it elects to do so; and/or

schedule 10 part 5 paragraph 9 1 a ii + (ii)exercising any compulsory purchase powers in the Order transferred to or benefitting SGN;

schedule 10 part 5 paragraph 9 1 b + (b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

schedule 10 part 5 paragraph 9 1 c + (c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

schedule 10 part 5 paragraph 9 1 d + (d)the approval of plans;

schedule 10 part 5 paragraph 9 1 e + (e)the carrying out of protective works;

schedule 10 part 5 paragraph 9 1 f + (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, provided these are directly related and proportionate to such works; and

schedule 10 paragraph 9 1 g + (g)any watching brief pursuant to paragraph 8(6),

provided that any charges, costs and expenses incurred under sub-paragraphs (1)(f) and (1)(g) shall only be payable in the event they have been incurred by SGN within 24 months of completion of the authorised works.

(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—

schedule 10 part 5 paragraph 9 3 a + (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

schedule 10 part 5 paragraph 9 3 b + (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 46 (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 SGN by virtue of sub-paragraph (1) will be reduced by the amount of that excess, save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) 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)—

schedule 10 part 5 paragraph 9 4 a + (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

schedule 10 part 5 paragraph 9 4 b + (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 SGN in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than seven years and six months earlier so as to confer on the affected 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.

(6) Where SGN demands payment of reasonably anticipated charges, costs and expenses pursuant to sub-paragraph (1), SGN must provide the undertaker with an itemised invoice or claim detailing such charges, costs and expenses reasonably anticipated to fall due within the following three months of such a demand. The undertaker shall pay the reasonably anticipated costs set out in the itemised invoice to SGN on demand in accordance with sub-paragraph (1). To the extent that this sum paid in advance has not been expended by SGN within six months after payment by the undertaker of that sum, the undertaker may demand the unspent balance remaining to be repaid by SGN and SGN shall repay that unspent balance within 30 days (unless otherwise agreed in writing between the parties).

Enactments and agreements

schedule 10 part 5 paragraph 10 + 10.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between SGN and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and SGN 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

schedule 10 part 5 paragraph 11 + 11.—(1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or SGN requires the removal of apparatus under paragraph 6(2) or SGN makes requirements for the protection or alteration of apparatus under paragraph 8, the undertaker must 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 SGN’s undertaking and SGN must co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever SGN’s consent, agreement or approval is required in relation to plans, documents or other information submitted by SGN or the taking of action by SGN, it must not be unreasonably withheld or delayed.

Access

schedule 10 part 5 paragraph 12 + 12.  If in consequence of an agreement reached between SGN and the undertaker or in accordance with the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable SGN to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

schedule 10 part 5 paragraph 13 + 13.  Save for differences or disputes arising under paragraphs 6(2), 6(4), 7(1), 7(5) and 8 any difference or dispute arising between the undertaker and SGN under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and SGN, be determined by arbitration in accordance with article 46 (arbitration).

Notices

schedule 10 part 5 paragraph 14 + 14.  The plans submitted to SGN by the undertaker pursuant to paragraph 8(1) must be sent to SGN at 1 Forbury Place, 43 Forbury Road, Reading, Berkshire RG1 3JH or such other address as SGN may from time to time appoint instead for that purpose and notify to the undertaker.

PART 6FOR THE PROTECTION OF RAILWAY INTERESTS

schedule 10 part 6 paragraph 1 + 1.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 16 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.

schedule 10 part 6 paragraph 2 + 2.  In this Part of this Schedule—

term asset protection agreement + “asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by Network Rail;

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 Network Rail for the purposes of this Order;

term network licence + “network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of their powers under section 8 (licences) 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 Waterloo General Office, London, SE1 8SW) 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 and any successor to Network Rail Infrastructure Limited’s railway undertaking;

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 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 Network Rail and—

term regulatory consents + “regulatory consents” means any consent or approval required under—

by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development; and

term specified work + “specified work” means so much of any of the authorised development as is situated upon, across, under, over, or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers of the Order.

schedule 10 part 6 paragraph 3 + 3.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

schedule 10 paragraph 3 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 10 paragraph 3 2 b + (b)use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

schedule 10 part 6 paragraph 4 + 4.  The undertaker must not exercise the powers conferred by—

schedule 10 part 6 paragraph 4 a + (a)article 3 (development consent etc. granted by the Order);

schedule 10 part 6 paragraph 4 b + (b)article 4 (power to maintain the authorised project);

schedule 10 paragraph 4 c + (c)article 13 (access to works);

schedule 10 paragraph 4 d + (d)article 17 (discharge of water);

schedule 10 paragraph 4 e + (e)article 19 (authority to survey and investigate the land onshore);

schedule 10 paragraph 4 f + (f)article 22 (compulsory acquisition of land);

schedule 10 paragraph 4 g + (g)article 23 (time limit for exercise of authority to acquire land compulsorily or to take land temporarily)

schedule 10 paragraph 4 h + (h)article 24 (compulsory acquisition of rights and imposition of restrictive covenants);

schedule 10 paragraph 4 i + (i)article 26 (power to override easements and other rights);

schedule 10 paragraph 4 j + (j)article 29 (acquisition of subsoil or airspace only);

schedule 10 paragraph 4 k + (k)article 31 (temporary use of land for carrying out the authorised project);

schedule 10 paragraph 4 l + (l)article 32 (temporary use of land for maintaining the authorised project);

schedule 10 paragraph 4 m + (m)article 33 (compulsory acquisition of land – incorporation of the mineral code)

schedule 10 paragraph 4 n + (n)article 34 (statutory undertakers);

schedule 10 paragraph 4 o + (o)article 42 (felling or lopping of trees and removal of hedgerows);

schedule 10 paragraph 4 p + (p)article 43 (trees subject to tree preservation orders);

schedule 10 paragraph 4 q + (q)the powers conferred by section 11(3) (power of entry) of the 1965 Act;

schedule 10 paragraph 4 r + (r)the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;

schedule 10 paragraph 4 s + (s)the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016;

schedule 10 paragraph 4 t + (t)any powers in respect of the temporary possession of land under the Neighbourhood Planning Act 2017; or

schedule 10 paragraph 4 u + (u)other provisions where the exercise of the powers under that provision would impact on railway property,

in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

schedule 10 part 6 paragraph 5 + 5.—(1) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(2) The undertaker must not exercise the powers conferred by sections 217 or 272 of the 1990 Act, article 34 (statutory undertakers), article 26 (power to override easements and other rights) or article 25 (private rights over land), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(3) The undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail.

(4) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

(5) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion).

(6) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.

schedule 10 part 6 paragraph 6 + 6.—(1) The undertaker must before commencing construction of any specified work, supply to Network Rail 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.

(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 Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay 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 their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s 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 Network Rail 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 Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay 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 their reasonable satisfaction.

schedule 10 part 6 paragraph 7 + 7.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 6(4) must, when commenced, be constructed—

schedule 10 part 6 paragraph 7 1 a + (a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 6;

schedule 10 part 6 paragraph 7 1 b + (b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

schedule 10 part 6 paragraph 7 1 c + (c)in such manner as to cause as little damage as is possible to railway property; and

schedule 10 part 6 paragraph 7 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 Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any 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 Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

schedule 10 part 6 paragraph 8 + 8.  The undertaker must—

schedule 10 paragraph 8 a + (a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

schedule 10 paragraph 8 b + (b)supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it.

schedule 10 part 6 paragraph 9 + 9.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

schedule 10 part 6 paragraph 10 + 10.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail 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 reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 6(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 11(a), provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) 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 must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

schedule 10 part 6 paragraph 11 + 11.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

schedule 10 paragraph 11 a + (a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 6(3) or in constructing any protective works under the provisions of paragraph 6(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

schedule 10 paragraph 11 b + (b)in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;

schedule 10 paragraph 11 c + (c)in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons and other persons whom it shall be 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;

schedule 10 paragraph 11 d + (d)in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

schedule 10 paragraph 11 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.

schedule 10 part 6 paragraph 12 + 12.—(1) In this paragraph—

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

term network rails apparatus + “Network Rail’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 Network Rail 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 Network Rail’s apparatus carried out after approval of plans under paragraph 6(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(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 Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

schedule 10 paragraph 12 4 a + (a)the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 6(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

schedule 10 paragraph 12 4 b + (b)Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

schedule 10 paragraph 12 4 c + (c)Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 6(1) has effect subject to the sub-paragraph.

(6) Prior to the commencement of operation of the authorised development, the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail 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) forthwith 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 Network Rail’s apparatus.

(7) In the event of EMI having occurred—

schedule 10 paragraph 12 7 a + (a)the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

schedule 10 paragraph 12 7 b + (b)Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;

schedule 10 paragraph 12 7 c + (c)Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and

schedule 10 paragraph 12 7 d + (d)the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.

(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

schedule 10 paragraph 12 8 a + (a)Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus;

schedule 10 paragraph 12 8 b + (b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 7.

(9) To the extent that it would not otherwise do so, paragraph 16(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 11(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 46 (arbitration) to the Secretary of State shall be read as a reference to the Institution of Engineering and Technology.

schedule 10 part 6 paragraph 13 + 13.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified 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 in such state of maintenance as not adversely to affect railway property.

schedule 10 part 6 paragraph 14 + 14.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’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 10 part 6 paragraph 15 + 15.  Any additional expenses which Network Rail may 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 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 Network Rail.

schedule 10 part 6 paragraph 16 + 16.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (subject to article 52 (no double recovery)) which may be occasioned to or reasonably incurred by Network Rail—

schedule 10 paragraph 16 1 a + (a)by reason of the construction, maintenance or operation of a specified work or the failure thereof;

schedule 10 paragraph 16 1 b + (b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

schedule 10 paragraph 16 1 c + (c)by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development;

schedule 10 paragraph 16 1 d + (d)in respect of any damage caused to or additional maintenance required to railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others; or

schedule 10 paragraph 16 1 e + (e)in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission and the fact that any act or thing may have been done by Network Rail 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 shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from liability under the provisions of this sub-paragraph.

(2) Network Rail must—

schedule 10 paragraph 16 2 a + (a)give the undertaker reasonable written notice of any such claims or demands;

schedule 10 paragraph 16 2 b + (b)not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

schedule 10 paragraph 16 2 c + (c)take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

(3) The sums payable by the undertaker under sub-paragraph (1) shall if relevant include a sum equivalent to the relevant costs.

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

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

(6) In this paragraph—

term the relevant costs + “the relevant costs” means the costs, losses and expenses (but excluding loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified 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 of the Railways Act 1993.

schedule 10 part 6 paragraph 17 + 17.  Network Rail 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 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 16) 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 pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

schedule 10 part 6 paragraph 18 + 18.  In the assessment of any sums payable to Network Rail 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 Network Rail 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 10 part 6 paragraph 19 + 19.  The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

schedule 10 part 6 paragraph 19 a + (a)any railway property shown on the works and land plans onshore and described in the book of reference;

schedule 10 part 6 paragraph 19 b + (b)any lands, works or other property held in connection with any such railway property; and

schedule 10 part 6 paragraph 19 c + (c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

schedule 10 part 6 paragraph 20 + 20.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.

schedule 10 paragraph 21 + 21.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 5 (benefit of the Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

schedule 10 paragraph 21 a + (a)the nature of the application to be made;

schedule 10 paragraph 21 b + (b)the extent of the geographical area to which the application relates; and

schedule 10 paragraph 21 c + (c)the name and address of the person acting for the Secretary of State to whom the application is to be made.

schedule 10 paragraph 22 + 22.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 49 (certification of plans and documents etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.

schedule 10 paragraph 23 + 23.  In relation to any dispute arising under this part of this Part of this Schedule (except for those disputes referred to in paragraph 12) the provisions of article 46 (arbitration) shall not apply and any such dispute, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers.

PART 7FOR THE PROTECTION OF NATIONAL HIGHWAYS LIMITED

Application etc

schedule 10 part 7 paragraph 1 + 1.—(1) The provisions of this Part of this Schedule apply for the protection of National Highways and have effect unless otherwise agreed in writing between the undertaker and National Highways.

(2) Except where expressly amended by the Order the operation of the powers and duties of National Highways or the Secretary of State under the 1980 Act, the 1984 Act, the 1991 Act, the Transport Act 2000, or the Town and Country Planning (General Permitted Development) (England) Order 2015 which shall continue to apply in respect of the exercise of all National Highways’ statutory functions.

Interpretation

schedule 10 part 7 paragraph 2 + 2.—(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—

term as built information + “as built information” means one electronic copy of the following information—

term the bond sum + “the bond sum” means the sum equal to 200% of the cost of the carrying out the specified works (to include all costs plus any commuted sum) or such other sum agreed between the undertaker and National Highways;

term the cash surety + “the cash surety” means the sum agreed between the undertaker and National Highways;

term condition survey + “condition survey” means a survey of the condition of National Highways structures and assets within the Order limits that may be affected by the specified works;

term contractor + “contractor” means any contractor or subcontractor appointed by the undertaker to carry out the specified works;

term defects period + “defects period” means the period from the date of the provisional certificate to the date of the final certificate which shall be no less than 12 months from the date of the provisional certificate;

term detailed design information + “detailed design information” means details of the following where applicable to the specified works—

term dmrb + “DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it;

term final certificate + “final certificate” means the certificate relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways pursuant to paragraph 14;

term the health and safety file + “the health and safety file” means the file or other permanent record containing the relevant health and safety information for the specified works required by the Construction Design and Management Regulations 2015 (or such updated or revised regulations as may come into force from time to time);

term nominated persons + “nominated persons” means the undertaker’s representatives or the contractor’s representatives on site during the carrying out of the specified works as notified to National Highways from time to time;

term programme of works + “programme of works” means a document setting out the sequence and timetabling of the specified works;

term provisional certificate + “provisional certificate” means the certificate of provisional completion relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways in accordance with paragraph 10 when it considers the specified works are substantially complete and may be opened for traffic;

term road safety audit + “road safety audit” means an audit carried out in accordance with the road safety audit standard;

term road safety audit standard + “road safety audit standard” means DMRB Standard HD GG119 or any replacement or modification of it;

term road space booking + “road space booking” means road space bookings in accordance with National Highways’ Asset Management Operational Requirements (AMOR) including Network Occupancy Management System (NOMS) used to manage road space bookings and network occupancy;

term specification for highways works + “Specification for Highways Works” means the specification for highways works forming part of the manual of contract documents for highway works published by National Highways and setting out the requirements and approvals procedures for work, goods or materials used in the construction, improvement or maintenance of the strategic road network;

term specified works + “specified works” means Work No. 13 and Work No. 9 in so far as that work affects the strategic road network, including highways works and signalisation, authorised by this Order including any maintenance of that work, as is undertaken on, in, under or over the strategic road network for which National Highways is the highway authority;

term strategic road network + “strategic road network” means any part of the road network including trunk roads, special roads or streets for which National Highways is the highway authority including drainage infrastructure, street furniture, verges and vegetation and all other land, apparatus and rights located in, on, over or under the highway; and

term utilities + “utilities” means any pipes wires cables or equipment belonging to any person or body having power or consent to undertake street works under the New Roads and Street Works Act 1991.

General

schedule 10 part 7 paragraph 3 + 3.  For the purposes of any approvals required under this Part of this Schedule the undertaker shall liaise directly with National Highways.

schedule 10 part 7 paragraph 4 + 4.  Notwithstanding the limits of deviation permitted pursuant of this Order, no works in carrying out, maintaining or diverting the specified works may be carried out under the strategic road network at a distance within 4 meters of the lowest point of the ground.

schedule 10 part 7 paragraph 5 + 5.  References to any standards, manuals, contracts, regulations and directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances.

Works outside the Order limits

schedule 10 part 7 paragraph 6 + 6.  If the undertaker proposes to carry out works to the strategic road network that are outside of the Order limits in connection with the authorised development, the undertaker must enter into an agreement with National Highways in respect of the carrying out of these works prior to the commencement of those works.

Prior approvals and security

schedule 10 part 7 paragraph 7 + 7.—(1) The specified works must not commence until—

schedule 10 part 7 paragraph 7 1 a + (a)a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised by them or any exceptions are approved by National Highways;

schedule 10 part 7 paragraph 7 1 b + (b)the programme of works has been approved by National Highways;

schedule 10 part 7 paragraph 7 1 c + (c)the detailed design of the specified works comprising of the following details, insofar as considered relevant by National Highways, has been submitted to and approved by National Highways—

schedule 10 paragraph 7 1 c i + (i)the detailed design information, incorporating all recommendations and any exceptions approved by National Highways under sub-paragraph (a);

schedule 10 paragraph 7 1 c ii + (ii)details of the proposed road space bookings;

schedule 10 paragraph 7 1 c iii + (iii)the identity and suitability of the contractor and nominated persons;

schedule 10 paragraph 7 1 c iv + (iv)a process for stakeholder liaison; and

schedule 10 paragraph 7 1 c v + (v)information demonstrating that the walking, cycling and horse riding assessment and review process undertaken by the undertaker in relation to the specified works has been adhered to in accordance with DMRB GG142 – Designing for walking, cycling and horse riding;

schedule 10 part 7 paragraph 7 1 d + (d)a scheme of traffic management has been submitted by the undertaker and approved by National Highways such scheme to be capable of amendment by agreement between the undertaker and National Highways from time to time;

schedule 10 paragraph 7 1 e + (e)stakeholder liaison has taken place in accordance with the process for such liaison agreed between the undertaker and National Highways under sub-paragraph (c)(iv) above;

schedule 10 paragraph 7 1 f + (f)the undertaker has procured to National Highways collateral warranties in a form approved by National Highways from the contractor and designer of the specified works in favour of National Highways to include covenants requiring the contractor and designer to exercise all reasonable skill care and diligence in designing and constructing the specified works, including in the selection of materials, goods, equipment and plant; and

schedule 10 paragraph 7 1 g + (g)a condition survey and regime of monitoring of any National Highways assets or structures that National Highways considers will be affected by the specified works, has been agreed in writing by National Highways.

(2) The undertaker must not exercise—

schedule 10 paragraph 7 2 a + (a)article 4 (power to maintain the authorised project);

schedule 10 paragraph 7 2 b + (b)article 9 (street works);

schedule 10 paragraph 7 2 c + (c)article 11 (temporary closure of streets);

schedule 10 paragraph 7 2 d + (d)article 17 (discharge of water);

schedule 10 paragraph 7 2 e + (e)article 18 (protective work to buildings);

schedule 10 paragraph 7 2 f + (f)article 19 (authority to survey and investigate the land onshore);

schedule 10 paragraph 7 2 g + (g)article 22 (compulsory acquisition of land);

schedule 10 paragraph 7 2 h + (h)article 24 (compulsory acquisition of rights and imposition of restrictive covenants);

schedule 10 paragraph 7 2 i + (i)article 31 (temporary use of land for carrying out the authorised project);

schedule 10 paragraph 7 2 j + (j)article 32 temporary use of land for maintaining the authorised project); or

schedule 10 paragraph 7 2 k + (k)article 42 (felling or lopping of trees and removal of hedgerows) of this Order,

over any part of the strategic road network without the consent of National Highways, and National Highways may in connection with any such exercise require the undertaker to provide details of any proposed road space bookings and/or submit a scheme of traffic management for National Highways’ approval.

(3) National Highways must prior to the commencement of the specified works or the exercise of any power referenced in sub-paragraph (2) inform the undertaker of the identity of the person who will act as a point of contact on behalf of National Highways for consideration of the information required under sub-paragraphs (1) or (2).

(4) Any approval of National Highways required under this paragraph—

schedule 10 paragraph 7 4 a + (a)must not be unreasonably withheld;

schedule 10 paragraph 7 4 b + (b)must be given in writing; and

schedule 10 paragraph 7 4 c + (c)may be subject to any conditions as National Highways considers necessary.

(5) Any change to the identity of the contractor and/or designer of the specified works will be notified to National Highways immediately and details of their suitability to deliver the specified works will be provided on request along with collateral warranties in a form agreed by National Highways.

(6) Any change to the detailed design of the specified works must be approved by National Highways in accordance with paragraph 7(1) of this Part.

Construction of the specified works

schedule 10 part 7 paragraph 8 + 8.—(1) The undertaker must give National Highways 28 days’ notice in writing of the date on which the specified works will start unless otherwise agreed by National Highways.

(2) The undertaker must comply with National Highways’ road space booking procedures prior to and during the carrying out of the specified works and no specified works for which a road space booking is required shall commence without a road space booking having first been secured from National Highways.

(3) The specified works must be carried out by the undertaker to the satisfaction of National Highways in accordance with—

schedule 10 part 7 paragraph 8 3 a + (a)the relevant detailed design information and programme of works approved pursuant to paragraph 7(1) or as subsequently varied by agreement between the undertaker and National Highways;

schedule 10 part 7 paragraph 8 3 b + (b)the DMRB, the Specification for Highway Works (contained within the Manual of Contract Documents for Highway Works), together with all other relevant standards as required by National Highways to include, inter alia, all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016 save to the extent that exceptions from those standards apply which have been approved by National Highways; and

schedule 10 part 7 paragraph 8 3 c + (c)all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same.

(4) The undertaker must permit and must require the contractor to permit at all reasonable times persons authorised by National Highways (whose identity must have been previously notified to the undertaker by National Highways) to gain access to the specified works for the purposes of inspection and supervision of the specified works.

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

schedule 10 part 7 paragraph 8 5 a + (a)other than in accordance with the requirements of this Part of this Schedule; or

schedule 10 part 7 paragraph 8 5 b + (b)in a way that causes damage to the highway, highway structure or asset or any other land of National Highways,

National Highways 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 satisfaction of National Highways.

(6) If during the carrying out of the specified works the undertaker or its appointed contractors or agents causes damage to the strategic road network then National Highways may by notice in writing require the undertaker, at its own expense, to remedy the damage.

(7) If within 28 days on which a notice under sub-paragraph (4) or sub-paragraph (5) is served on the undertaker (or in the event of there being, in the opinion of National Highways, a danger to road users, within such lesser period as National Highways may stipulate), the undertaker has failed to take steps required by that notice, National Highways may carry out the steps required of the undertaker and may recover any expenditure incurred by national Highways in so doing, such sum to be payable within 30 days of demand.

(8) Nothing in this Part of this Schedule prevents National Highways from carrying out any work or taking any such action as it reasonably believes to be necessary as a result of or in connection with the carrying out or maintenance of the authorised development without prior notice to the undertaker in the event of an emergency or to prevent the occurrence of danger to the public and National Highways may recover any expenditure it reasonably incurs in doing so.

(9) In constructing the specified works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway must be constructed to the satisfaction of National Highways.

(10) The undertaker must notify National Highways if it fails to complete the specified works in accordance with the agreed programme pursuant to paragraph 7(1)(b) of this Part or suspends the carrying out of any specified work beyond a reasonable period of time and National Highways reserves the right to withdraw any road space booking granted to the undertaker to ensure compliance with its network occupancy requirements.

Payments

schedule 10 part 7 paragraph 9 + 9.—(1) The undertaker must reimburse National Highways a sum equal to the whole of any reasonable costs and expenses which National Highways incurs (including costs and expenses for using internal or external staff) in relation to the specified works and in relation to any approvals sought under this Order, or otherwise incurred under this Part, including—

schedule 10 part 7 paragraph 9 1 a + (a)the checking and approval of the information required under paragraph 7(1);

schedule 10 part 7 paragraph 9 1 b + (b)the supervision of the specified works;

schedule 10 part 7 paragraph 9 1 c + (c)the checking and approval of the information required to determine approvals under this Order;

schedule 10 part 7 paragraph 9 1 d + (d)all legal and administrative costs and disbursements reasonably incurred by National Highways in connection with the specified works and sub-paragraphs (a)-(c); and

schedule 10 part 7 paragraph 9 1 e + (e)any value added tax which is payable by National Highways in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs,

together comprising “the NH costs”.

(2) National Highways must give the undertaker a final account of the NH costs referred to in sub-paragraph (1) within 91 days of the issue of the provisional certificate issued pursuant to paragraph 10(4).

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

schedule 10 part 7 paragraph 9 3 a + (a)if the final account shows a further sum as due to National Highways the undertaker must pay to National Highways the sum shown due to it; or

schedule 10 part 7 paragraph 9 3 b + (b)if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by National Highways, National Highways must refund the difference to the undertaker.

(4) 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 3% 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 10 part 7 paragraph 10 + 10.—(1) Following any closure or partial closure of any of the strategic road network for the purposes of carrying out the specified works, National Highways will carry out a site inspection to satisfy itself that the strategic road network is, in its opinion, safe for traffic and the undertaker must comply with any requirements of National Highways prior to reopening the strategic road network.

(2) As soon as the undertaker considers that the provisional certificate may be properly issued it must apply to National Highways for the provisional certificate.

(3) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable—

schedule 10 part 7 paragraph 10 3 a + (a)inspect the specified works; and

schedule 10 part 7 paragraph 10 3 b + (b)provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose.

(4) When—

schedule 10 part 7 paragraph 10 4 a + (a)a stage 3 road safety audit for the specified works has been carried out and all recommendations raised including remedial works have (subject to any exceptions agreed) been approved by National Highways;

schedule 10 part 7 paragraph 10 4 b + (b)the specified works incorporating the approved remedial works under sub-paragraph (4)(a) and any further works notified to the undertaker pursuant to paragraph 10(3)(b) have been completed to the satisfaction of National Highways; and

schedule 10 paragraph 10 4 c + (c)the as built information has been provided to National Highways,

National Highways must issue the provisional certificate.

(5) On the issue of the provisional certificate the bond sum shall be reduced to 20% of the total bond sum save insofar as any claim or claims have been made against the bond before the date in which case National Highways will retain a sufficient sum to ensure it does not have to meet any costs for or arising from the specified works.

(6) 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. The undertaker must comply with the findings of the stage 4 road safety audit and must pay all costs of and incidental to such and provide updated as-built information to National Highways.

Opening

schedule 10 part 7 paragraph 11 + 11.  The undertaker must notify National Highways not less than 56 days in advance of the intended date of opening to the public of the strategic road network and the undertaker must notify National Highways of the actual date the strategic road network will be opened to the public within 14 days of that date.

Final condition survey

schedule 10 part 7 paragraph 12 + 12.—(1) The undertaker must, as soon as reasonably practicable after making its application for a provisional certificate pursuant to paragraph 10(2), arrange for the highways structures and assets that were the subject of the condition survey to be re-surveyed and must submit the re-survey to National Highways for its approval. The re-survey will include a renewed geotechnical assessment required by DMRB CD622 if the specified works include any works beneath the strategic road network.

(2) If the re-surveys carried out pursuant to sub-paragraph (1) indicate that any damage has been caused to a structure or asset, the undertaker must submit a scheme for remedial works in writing to National Highways for its approval in writing and the undertaker must carry out the remedial works at its own cost and in accordance with the scheme submitted.

(3) If the undertaker fails to carry out the remedial work in accordance with the approved scheme, National Highways may carry out the steps required of the undertaker and may recover any expenditure it reasonably incurs in so doing.

(4) National Highways may, at its discretion, at the same time as giving its approval to the re-surveys pursuant to sub-paragraph (1) give notice in writing that National Highways will remedy any damage identified in the re-surveys and National Highways may recover any expenditure it reasonably incurs in so doing.

(5) The undertaker must make available to National Highways upon request copies of any survey or inspection reports produced pursuant to any inspection or survey of any specified work following its completion that the undertaker may from time to time carry out.

Defects Period

schedule 10 part 7 paragraph 13 + 13.—(1) The undertaker must at its own expense remedy any defects in the strategic road network as are reasonably required by National Highways to be remedied during the defects period. All identified defects must be remedied in accordance with the following timescales—

schedule 10 paragraph 13 1 a + (a)in respect of matters of urgency, within 24 hours of receiving notification for the same (urgency to be determined at the absolute discretion of National Highways);

schedule 10 paragraph 13 1 b + (b)in respect of matters which National Highways considers to be serious defects or faults, within 14 days of receiving notification of the same; and

schedule 10 paragraph 13 1 c + (c)in respect of all other defects notified to the undertaker, within 4 weeks of receiving notification of the same.

(2) Following the expiry of the defects period National Highways has the responsibility for routine maintenance of the strategic road network save for any soft landscaping works which must be established and which must thereafter be maintained for a period of 3 years by and at the expense of the undertaker.

Final Certificate

schedule 10 part 7 paragraph 14 + 14.—(1) The undertaker must apply to National Highways for the final certificate no sooner than 12 months from the date of the provisional certificate.

(2) Following receipt of the application for the final certificate, National Highways must as soon as reasonably practicable—

schedule 10 paragraph 14 2 a + (a)inspect the strategic road network; and

schedule 10 paragraph 14 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 strategic road 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) When National Highways is satisfied that—

schedule 10 paragraph 14 4 a + (a)any defects or damage arising from defects during the defects 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 satisfaction of National Highways; and

schedule 10 paragraph 14 4 b + (b)the NH costs have been paid to National Highways in full,

National Highways must issue the final certificate after which the bond shall be released in full.

(5) The undertaker must pay to National Highways within 28 days of demand the costs reasonably incurred by National Highways in identifying the defects and supervising and inspecting the undertaker’s work to remedy the defects that it is required to remedy pursuant to these provisions.

Security

schedule 10 part 7 paragraph 15 + 15.  The specified works must not commence until—

schedule 10 paragraph 15 a + (a)the undertaker procures that the specified works are secured by a bond from a bondsman first approved by National Highways in the agreed form between the undertaker and National Highways to indemnify National Highways 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 10 paragraph 15 b + (b)the undertaker has provided the cash surety which may be utilised by National Highways in the event of the undertaker failing to meet its obligations to make payments under paragraph 9 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.

Insurance

schedule 10 part 7 paragraph 16 + 16.  Prior to the commencement of the specified works the undertaker must effect the public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) in respect of any one claim 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 or use of the strategic road network by the undertaker.

Indemnity

schedule 10 part 7 paragraph 17 + 17.  The undertaker fully indemnifies National Highways from and against all costs, claims, expenses, damages, losses and liabilities suffered by National Highways 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 save for any loss arising out of or in consequence of any negligent act or default of National Highways.

Maintenance of the specified works

schedule 10 part 7 paragraph 18 + 18.—(1) The undertaker must, prior to the commencement of any works of maintenance to the specified works, give National Highways 28 days’ notice in writing of the date on which those works will start unless otherwise agreed by National Highways, acting reasonably.

(2) If, for the purposes of maintaining the specified works, the undertaker needs to occupy any road space, the undertaker must comply with National Highways’ road space booking requirements and no maintenance of the specified works for which a road space booking is required shall commence without a road space booking having first been secured.

(3) The undertaker must comply with any requirements that National Highways may notify to the undertaker, such requirements to be notified to the undertaker not less than 7 days in advance of the planned commencement date of the maintenance works.

(4) The provisions of paragraph 11 shall apply to the opening of any part of the strategic road network following occupation of any road space under this paragraph.

Land

schedule 10 part 7 paragraph 19 + 19.  The undertaker must not under the powers of this Order—

schedule 10 part 7 paragraph 19 a + (a)acquire or use land forming part of;

schedule 10 part 7 paragraph 19 b + (b)acquire new or existing rights over; or

schedule 10 part 7 paragraph 19 c + (c)seek to impose or extinguish any restrictive covenants over,

any of the strategic road network, or extinguish any existing rights of National Highways in respect of any third party property, except with the consent of National Highways following written request to legalservicesteam@nationalhighways.co.uk

Expert Determination

schedule 10 part 7 paragraph 20 + 20.—(1) Article 46 (arbitration) of the Order does not apply to this Part of this Schedule.

(2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute.

(4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed.

(5) The expert must—

schedule 10 paragraph 20 5 a + (a)invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment;

schedule 10 paragraph 20 5 b + (b)permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission;

schedule 10 paragraph 20 5 c + (c)issue a decision within 7 days of receipt of the submissions under sub-paragraph (b); and

schedule 10 paragraph 20 5 d + (d)give reasons for the decision.

(6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 46 (arbitration).

(7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.