SCHEDULE 9Protective provisions
PART 12For the protection of Immingham Oil Terminal operators
Expert Determination
schedule 9 paragraph 178 178.—(1) Except as provided for 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—
schedule 9 paragraph 178 5 a (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 expert’s appointment;
schedule 9 paragraph 178 5 b (b)permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;
schedule 9 paragraph 178 5 c (c)issue a decision within 42 days of receipt of the submissions under sub-paragraph (b); and
schedule 9 paragraph 178 5 d (d)give reasons for the decision.
(6) The expert must consider where relevant—
schedule 9 paragraph 178 6 a (a)the development outcome sought by the undertaker;
schedule 9 paragraph 178 6 b (b)the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;
schedule 9 paragraph 178 6 c (c)the nature of the power sought to be exercised by the undertaker;
schedule 9 paragraph 178 6 d (d)the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;
schedule 9 paragraph 178 6 e (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;
schedule 9 paragraph 178 6 f (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;
schedule 9 paragraph 178 6 g (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;
schedule 9 paragraph 178 6 h (h)the effectiveness, cost and reasonableness of proposals for mitigation arising from any party; and
schedule 9 paragraph 178 6 i (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 (arbitration).