SCHEDULE 9Protective provisions

PART 13For the protection of Air Products (BR) Limited

Application

180.  For the protection of Air Products as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Air Products.

Interpretation

181.  In this Part of this Schedule—

“affected assets” means apparatus owned or operated by Air Products on under or above ground which in the reasonable opinion of Air Products would have the potential to be affected by a relevant work;

“alternative apparatus” means alternative apparatus adequate to enable Air Products to fulfil its contractual obligations in a manner not less efficient than previously;

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

“Air Products” means Air Products Public Limited Company (company number 00103881), Air Products (BR) Limited (company number 02532156) and any subsequent owner of the pipelines;

“Air Products address” means the postal address details to be provided pursuant to paragraph ‎195;

“Air Products email” means the email address details to be provided pursuant to paragraph ‎195;

“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 Air Products for the purposes of this Part of this Schedule;

“facilities and rights” for construction and for maintenance including any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;

“pipelines” means the pipelines owned and operated by Air Products 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;

“relevant work” means a work which may have an effect on the operation, maintenance, abandonment of or access to any of the apparatus, the removal of which has not been required by the undertaker under paragraph ‎183(2) or otherwise; and

“works details” means the following—

Acquisition of land

182.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

183.—(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 or over which access to any apparatus is enjoyed or requires that Air Products’ apparatus is relocated or diverted, that apparatus must not be removed under this Part, and any right of Air Products to maintain that apparatus in that land and gain access to it must not be extinguished, until alternative apparatus has been constructed, and is in operation and access to it has been provided, to the reasonable satisfaction of Air Products in accordance with sub-paragraphs ‎(2) to ‎(5).

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Air Products 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 Air Products 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 Air Products to its reasonable satisfaction the necessary facilities and rights for the construction of alternative apparatus in other land secured by 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 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, Air Products 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 Air Products and the undertaker or in default of agreement settled by expert in accordance with paragraph ‎194.

(5) Air Products must, after the alternative apparatus to be provided or constructed has been agreed or settled through expert determination in accordance with paragraph ‎194 and after the grant to Air Products 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.

Facilities and rights for alternative apparatus

184.—(1) Where, in accordance with the provisions of this Part, the undertaker affords to or secures for Air Products facilities and rights in land for the construction and maintenance 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 Air Products or in default of agreement settled by expert determination in accordance with paragraph ‎194.

(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 expert less favourable on the whole to Air Products 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 expert must make such provision for the payment of compensation by the undertaker to Air Products as appears to the expert to be reasonable having regard to all the circumstances of the particular case.

Authorisation of works details affecting pipelines or protected crossings

185.—(1) Before commencing any part of a relevant work, the undertaker must submit the works details to Air Products in accordance with paragraph ‎195.

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

(a)that the undertaker obtains written acknowledgement of receipt from Air Products; 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 Air Products may, within 30 days from receipt of the works details under sub-paragraph ‎(2), reasonably require.

186.  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 ‎185 have been authorised by Air Products; or

(b)the works details supplied in respect of that relevant work under paragraph ‎185 have been authorised by an expert under paragraph ‎187(5).

187.—(1) Any authorisation by Air Products under paragraph ‎186(a) must not be unreasonably withheld or delayed, and Air Products must communicate its approval or refusal of the works details within 56 days of the date of submission of the works details under paragraph 185(1), and any authorisation may be given subject to such reasonable conditions as Air Products may require to be made for the purpose of securing its affected apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any affected apparatus.

(2) Where Air Products can demonstrate that the relevant work will adversely affect the safety or operation of the pipelines it is entitled to withhold its authorisation until the undertaker can demonstrate to the reasonable satisfaction of Air Products that the relevant work will not adversely affect the safety or operation of the pipelines.

(3) The relevant work must be carried out in accordance with the works details authorised under paragraph ‎186 and any conditions imposed on the authorisation by Air Products under sub-paragraph (1).

(4) Where there has been a reference to an expert in accordance with sub-paragraph ‎(5) and the expert gives authorisation, the relevant work must be carried out in accordance with the authorisation and conditions contained in the award of the expert under sub-paragraph ‎(6).

(5) In the event that—

(a)the undertaker considers that Air Products has unreasonably withheld its authorisation under paragraph 186(1); or

(b)the undertaker considers that Air Products has given its authorisation under paragraph 186(1) subject to unreasonable conditions,

the undertaker may refer the matter to an expert for determination under paragraph ‎194.

(6) Where the matter is referred to an expert under sub-paragraph ‎(5) 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.

Notice of works

188.  The undertaker must provide to Air Products 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.

Carrying out work and monitoring for damage to pipelines

189.  When carrying out the relevant work the undertaker must undertake the work in accordance with any works details approved in accordance with paragraph 186(1) and in accordance with such requirements as may be made in accordance with paragraph 187(1).

190.—(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 any 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 Air Products to enable repairs to be carried out to the reasonable satisfaction of Air Products.

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

(a)afford Air Products all reasonable facilities to enable it to fully and properly repair and test the affected asset and pay to Air Products 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 reasonable satisfaction of Air Products to have effectively repaired the affected asset before any backfilling takes place.

(4) If in the course of carrying out repairs under paragraph ‎190‎(3)(a) or ‎190‎(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 Air Products under paragraph ‎190‎(3)(a), or incurred by the undertaker under paragraph ‎190‎(3)(b), by virtue of paragraph ‎(3) 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.

(5) Where testing has taken place under paragraph ‎190‎(3)(b), the undertaker must (except where Air Products agree 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) apply to that damage.

(7) In relation to the approved assessment and monitoring work to be undertaken both prior to the construction of the relevant work 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 Air Products is entitled, but not obliged, to undertake the necessary remedial work and recover the cost of doing so from the undertaker.

191.—(1) If any damage occurs to an affected asset causing a leakage or escape from a pipeline, all work in the vicinity must cease and Air Products 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 Air Products;

(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.

Costs

192.  The undertaker must repay to Air Products all fees, costs, charges and expenses properly incurred by them on an indemnity basis in relation to these protective provisions in respect of—

(a)obtaining necessary facilities and rights in the land in which the alternative apparatus is to be constructed under paragraph ‎183(3);

(b)authorisation of works details submitted by the undertaker under paragraph ‎185 and the imposition of conditions under paragraph ‎186;

(c)the engagement of an engineer and their observation of the relevant work affecting the pipelines and the provision of safety advice under paragraph ‎188; and

(d)the repair and testing of a pipeline or protected crossing under paragraph ‎190,

including the costs incurred by Air Products in engaging and retaining such external experts, consultants and contractors as may be necessary to Air Products to comply with the obligations and requirements set out in these protective provisions.

Indemnity

193.—(1) The undertaker must indemnify and keep Air Products indemnified against all expenses, loss, demands, proceedings, damages, claims, penalty and reasonably foreseeable indirect or consequential loss (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) and costs incurred by or recovered from Air Products—

(a)by reason of the construction, operation, maintenance, repair and decommissioning of any relevant work 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 any relevant work.

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

(b)any indirect or consequential loss of Air Products 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 which is not reasonably foreseeable.

(4) Air Products 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 first consulting the undertaker and considering their representations.

(5) Air Products must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, use reasonable endeavours to mitigate its loss.

(6) Air Products must use its reasonable endeavours to mitigate any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within Air Products’ reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of Air Products’ control.

Expert Determination

194.—(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—

(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;

(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 sub-paragraph ‎(5)‎(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 (arbitration).

Notices

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

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

(a)by post to the Air Products address; and

(b)by electronic transmission to the Air Products email,

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

(3) In the event that Air Products do not provide the Air Products address and Air Products 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 serve any notice or document on Air Products at its registered office.