SCHEDULE 9Protective provisions

PART 11For the protection of Phillips 66 Limited

Application

142.  For the protection of P66 (as referred to in this Part of this Schedule) the following provisions have effect, unless otherwise agreed in writing between the undertaker and P66.

Interpretation

143.  In this Part of this Schedule—

“affected assets” means apparatus owned or operated by P66 on or above ground which in the reasonable opinion of P66 would have the potential to be physically affected by the relevant works;

“apparatus” means any part of the pipelines and includes—

“damage” includes all damage including in relation to a pipeline leakage and the weakening of the mechanical strength of a pipeline;

“engineer” means an engineer appointed by P66 for the purposes of this Order;

“HOR” means the Humber Oil Refinery which at the date of this Order is owned and operated by P66;

“P66” means Phillips 66 Limited (company number 00529086) and any subsequent owner of the pipelines or HOR;

“P66 address” means the postal address details to be provided pursuant to paragraph ‎161;

“P66 email” means the email address details to be provided pursuant to paragraph ‎161;

“pipelines” means the pipelines owned and operated by P66 located within the multi-pipeline rack on the north side of A1173 Manby Road and all ancillary apparatus including such works and apparatus properly appurtenant to the pipelines as are specified by section 65(2) of the Pipe-lines Act 1962;

“protected land” means such parts of the Order land as is within 30 metres of the pipelines;

“relevant work” means a work which may have an effect on the operation, maintenance, abandonment of or access to any of the pipelines; and

“works details” means the following—

Authorisation of works details affecting pipelines or protected crossings

144.—(1) Before commencing any part of a relevant work the undertaker must submit the works details to P66 in accordance with paragraph ‎145.

(2) The works details submitted under sub-paragraph (1) will be treated as having been received by P66 on the date—

(a)that the undertaker obtains written acknowledgement of receipt from P66; or

(b)two clear working days following the date that the work details were submitted under sub-paragraph (1),

whichever is earliest.

(3) The undertaker must as soon as reasonably practicable provide such further particulars as P66 may, within 30 days from the receipt of the works details under sub-paragraph (2), reasonably require.

145.  No part of a relevant work is to be commenced until one of the following conditions has been satisfied-

(a)the works details supplied in respect of that relevant work under paragraph ‎144 have been authorised by P66; or

(b)the works details supplied in respect of that relevant work under paragraph ‎144 have been authorised by an expert under paragraph ‎147(2).

146.—(1) Any authorisation by P66 required under paragraph ‎145(a) must not be unreasonably withheld but may be given subject to such reasonable conditions as P66 may require to be made for—

(a)the continuing safety and operation or viability of the affected asset; and

(b)the requirement for P66 to have–

(i)uninterrupted and unimpeded emergency access with or without vehicles to the affected asset at all times; and

(ii)reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the affected asset.

(2) Where P66 can reasonably demonstrate that the authorised development will significantly adversely affect the safety of the pipelines it is entitled to withhold its authorisation until the undertaker can demonstrate to the reasonable satisfaction of P66 that the authorised development will not significantly adversely affect the safety of the pipelines.

(3) The authorised development must be carried out in accordance with the works details authorised under paragraph ‎145 and any conditions imposed on the authorisation under sub-paragraph (1).

(4) Where there has been a reference to an expert in accordance with paragraph ‎147 and the expert gives authorisation, the authorised development must be carried out in accordance with the authorisation and conditions contained in the award of the expert under paragraph ‎147(2).

147.—(1) In the event that-

(a)the undertaker considers that P66 has unreasonably withheld its authorisation under paragraph ‎146(1); or

(b)the undertaker considers that P66 has given its authorisation under paragraph ‎146(1) subject to unreasonable conditions,

the undertaker may refer the matter to an expert for determination under paragraph ‎160.

(2) Where the matter is referred to an expert under paragraph 6(1) the expert is to determine whether or not authorisation should be given and, if so, the conditions which should reasonably be attached to the authorisation under sub-paragraphs (a) and (b) of paragraph ‎146(1).

(3) Where the undertaker considers that P66 has unreasonably withheld its authorisation under paragraph ‎146(2) then the matter may be referred to an expert on the application of either party (after giving notice in writing to each other) appointed by the secretary of the United Kingdom Onshore Pipeline Association for determination under paragraph ‎160.

Notice of works

148.  The undertaker must provide to P66 a minimum of 28 days’ notice prior to commencing any relevant work in order that an engineer can be made available to observe the relevant works and, when required, advise on the necessary safety precautions.

Further provisions about works

149.—(1) Before carrying out a relevant work the undertaker must—

(a)provide P66 with baseline data for any existing cathodic protection of the affected asset; and

(b)carry out a pipeline settlement and stress analysis to demonstrate any potential pipeline movement will not present an integrity risk to the affected asset.

(2) A minimum clearance of 1500 millimetres must be maintained between any part of the authorised development and any affected asset unless otherwise agreed with P66.

Monitoring for damage to pipelines

150.—(1) When carrying out the relevant work the undertaker must monitor the relevant affected assets to establish whether damage has occurred.

(2) Where any damage occurs to an affected asset as a result of the relevant work, the undertaker must immediately cease all work in the vicinity of the damage and must notify P66 to enable repairs to be carried out to the reasonable satisfaction of P66.

(3) If damage has occurred to an affected asset as a result of relevant work the undertaker will, at the request and election of P66—

(a)afford P66 all reasonable facilities to enable it to fully and properly repair and test the affected asset and pay to P66 its costs incurred in doing so including the costs of testing the effectiveness of the repairs and cathodic protection and any further works or testing shown by that testing to be reasonably necessary; or

(b)fully and properly repair the affected asset as soon as reasonably practicable, in which case the repairs must be properly tested by the undertaker and be shown to the satisfaction of P66 to have effectively repaired the affected asset before any backfilling takes place.

(4) If in the course of carrying out repairs under sub-paragraph (3)(a) or (3)(b) apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which 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 to be necessary, then, if it involves cost in the execution of the repairs 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 would be payable to P66 under sub-paragraph (3)(a), or incurred by the undertaker under sub-paragraph (3)(b), by virtue of paragraph (3) will be reduced by the amount of that excess.

(5) Where testing has taken place under sub-paragraph (3)(b), the undertaker must (except where P66 agrees otherwise in writing) provide it with a copy of the results of such testing prior to any backfilling.

(6) Following the completion of a relevant work if damage is found to have occurred to an affected asset as a result of the relevant work, sub-paragraphs (2) to (4) of this paragraph apply to that damage.

(7) In relation to the approved assessment and monitoring work to be undertaken both prior to the construction of the authorised development and during the operation of the authorised development to ascertain any change or damage to any pipeline cathodic protection system, the undertaker must undertake any necessary remedial work.

(8) In the event that the undertaker does not carry out necessary remedial work in a timely manner then P66 is entitled, but not obliged, to undertake the necessary remedial work and recover the cost of doing so from the undertaker.

151.—(1) If any damage occurs to a pipeline causing a leakage or escape from a pipeline, all work in the vicinity must cease and P66 must be notified immediately.

(2) Where there is leakage or escape of gas, the undertaker must immediately—

(a)remove all personnel from the immediate vicinity of the leak;

(b)inform P66;

(c)prevent any approach by the public, extinguish all naked flames and other sources of ignition for at least 350 metres from the leakage; and

(d)assist emergency services as may be requested.

Compliance with requirements etc applying to the protected land

152.—(1) Subject to sub-paragraph (2), in undertaking any works in relation to the protected land or exercising any rights relating to or affecting owners of the protected land, the undertaker must comply with such conditions, requirements or regulations relating to health, safety, security and welfare as are operated in relation to access to or activities in the relevant land including without limitation Appendix K - Code of Practice for Safe Working in the vicinity or crossing of Phillips 66 Ltd’s Pipelines and associated installations.

(2) The undertaker is not bound by any condition, requirement or regulation that is—

(a)introduced after the date on which notice of the works was given under paragraph ‎144; or

(b)determined by the expert following a determination under paragraph ‎160 to unreasonably—

(i)create significant engineering, technical or programming difficulties; or

(ii)materially increase the cost of carrying out the works.

(3) Sub-paragraph (2) does not apply if the condition, requirement or regulation was introduced by way of legislation, direction or policy of the government, a relevant government agency, a local authority (exercising its public functions) or the police.

Restriction on exercising powers

153.  The undertaker must in the exercise of the powers conferred by this Order at all times act so as to minimise, as far as reasonably practicable, any detrimental effects on P66, including any disruption to access and supplies of utilities and other services that are required by P66 in order to carry out its operations.

Insurance

154.—(1) Before carrying out any part of the authorised development on the protected land, the undertaker must put in place a policy of insurance with a reputable insurer against its liabilities under paragraph ‎156 subject to a minimum level of £200,000,000.00 (two hundred million pounds) per occurrence or series of occurrences arising out of one event, and evidence of that insurance must be provided on request to P66.

(2) The undertaker must maintain insurance in relation to the authorised development affecting P66 during the construction, operation, maintenance, repair and decommissioning of the authorised development.

Costs

155.  The undertaker must repay to P66 all reasonable fees, costs, charges and expenses reasonably incurred by them in relation to these protective provisions in respect of—

(a)authorisation of works details submitted by the undertaker under paragraph ‎144 and the imposition of conditions under paragraph ‎145;

(b)the engagement of an engineer and their observation of the authorised works affecting the pipelines and the provision of safety advice under paragraph ‎148; and

(c)the repair and testing of a pipeline or protected crossing under paragraph ‎150;

(d)including the reasonable costs incurred by P66 in engaging and retaining such external experts, consultants and contractors as may be reasonably necessary to P66 to carry out its functions under these protective provisions.

Indemnity

156.—(1) The undertaker must indemnify and keep P66 indemnified against all reasonable costs, charges, damages and expenses—

(a)by reason of the construction, operation, maintenance, repair and decommissioning of the authorised development or the failure of it; or

(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 the construction, operation, maintenance, repair and decommissioning of the authorised development.

(2) The fact that any act or thing may have been done by P66 on behalf of the undertaker or in accordance with a plan approved by P66 or in accordance with any requirement of P66 or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless P66 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—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of P66, its officers, servants, contractors or agents; and/or

(b)any indirect or consequential loss of P66 or 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.

(4) P66 must give the undertaker reasonable notice of any claim or demand under sub-paragraph (1) and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

(5) P66 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) P66 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 P66’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 P66’s control and if reasonably requested to do so by the undertaker P66 must provide an explanation of how the claim has been minimised, where relevant.

(7) P66 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 and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made under this Part of this Schedule.

Further protection in relation to the exercise of powers under the Order

157.  The undertaker must give written notice to P66 if any application is proposed to be made by the undertaker for the Secretary of State’s consent under article 7 (benefit of the 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)—

(a)the nature of the application to be made;

(b)the extent of the geographical area to which the application relates; and

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

158.  The undertaker must, when requested to do so by P66, provide it with a complete set of the documents submitted to and certified by the Secretary of State in accordance with article 44 (certification of plans, etc.) in the form of a computer disc with read only memory or such other format as may be agreed between the relevant parties.

159.  Prior to the commencement of the authorised development the undertaker must prepare an emergency response plan following consultation with the local emergency services and provide a copy of that plan to P66.

Expert Determination

160.—(1) Except as provided in sub-paragraph (7), article 48 (arbitration) does not apply to this Part of this Schedule.

(2) Any difference under this Part of this Schedule must 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) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

(4) 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.

(5) The expert must—

(a)invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 21 days of the experts appointment;

(b)permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

(c)issue a decision within 42 days of receipt of the submissions under paragraph (b); and

(d)give reasons for the decision.

(6) The expert must consider where relevant—

(a)the development outcome sought by the undertaker;

(b)the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;

(c)the nature of the power sought to be exercised by the undertaker;

(d)the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;

(e)the ability of any party other than the undertaker to undertake a relevant operation or development in a timely and cost-effective manner, while giving consideration to any restriction or limitation which might be caused to the ability of any party to carry out their statutory or regulatory duties, requirements or obligations;

(f)the effects of the undertaker’s proposals on any party other than the undertaker and the effects of any operation or development undertaken by any party other than the undertaker;

(g)whether this Order provides any alternative powers by which the undertaker could reasonably achieve the development outcome sought in a manner that would reduce or eliminate adverse effects on any party other than the undertaker;

(h)the effectiveness, cost and reasonableness of proposals for mitigation arising from any party; and

(i)any other important and relevant consideration.

(7) 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 48.

Notices

161.—(1) P66 must as soon as reasonably practicable following a written request from the undertaker provide details of the P66 address and P66 email.

(2) A notice or other document required or authorised to be served on P66 under this Part of the Schedule must be served—

(a)by post to the P66 address; and

(b)by electronic transmission to the P66 email,

or to such other postal or electronic mail address which P66 may from time to time notify to the undertaker.

(3) In the event that P66 does not provide the P66 address and P66 email within 14 days of the undertaker’s request pursuant to sub-paragraph (1) then sub-paragraph (2) does not apply and the undertaker must—

(a)serve any notice or document on P66 at its registered office; and

(b)send a copy of such notice or document to the HOR marked for the attention of the refinery manager.