SCHEDULES

SCHEDULE 10PROTECTIVE PROVISIONS

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.