SCHEDULES

SCHEDULE 10PROTECTIVE PROVISIONS

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.