The Hornsea Four Offshore Wind Farm Order 2023

Article 44

SCHEDULE 9 E+W+S PROTECTIVE PROVISIONS

PART 1 E+W+S PROTECTION FOR ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Application E+W+S

1.  For the protection of the affected undertakers referred to in this Part of this Schedule (save for National Grid which is protected by Part 3A and 3B of this Schedule, Doggerbank Offshore Wind Farm Project 1 Projco Limited and Doggerbank Offshore Wind Farm Project 2 Projco Limited which is protected by Part 7 of this Schedule and Northern Powergrid which is protected by Part 10 of this Schedule) the following provisions must, unless otherwise agreed in writing between the undertaker and the affected undertaking concerned, have effect.

Commencement Information

I1 Sch. 9 Pt. 1 para. 1 in force at 3.8.2023, see art. 1

2.  In this Part of this Schedule—

“affected undertaker” means—

(a)

any licence holder within the meaning of Part 1 (electricity supply) of the 1989 Act;

(b)

a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986(1);

(c)

a water undertaker within the meaning of the Water Industry Act 1991(2);

(d)

a sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,

for the area of the authorised development but, for the avoidance of doubt, does not include the undertakers specified in Part 3 or Part 10 of this Schedule, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained;

“alternative apparatus” means alternative apparatus adequate to enable the affected undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means—

(a)

in the case of an electricity undertaker, electric lines or electrical plant (as defined in the 1989 Act), belonging to or maintained by that affected undertaker;

(b)

in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;

(c)

in the case of a water undertaker—

(i)

mains, pipes or other apparatus belonging to or maintained by that affected undertaker for the purposes of water supply; and

(ii)

any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991;

(d)

in the case of a sewerage undertaker—

(i)

any drain or works vested in the affected undertaker in accordance with the Water Industry Act 1991; and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewerage disposal works, at future date) of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties; and

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land.

Commencement Information

I2 Sch. 9 Pt. 1 para. 2 in force at 3.8.2023, see art. 1

Precedence of the 1991 Act in respect of apparatus in the streets E+W+S

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Commencement Information

I3 Sch. 9 Pt. 1 para. 3 in force at 3.8.2023, see art. 1

No acquisition etc. except by agreement E+W+S

4.  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.

Commencement Information

I4 Sch. 9 Pt. 1 para. 4 in force at 3.8.2023, see art. 1

Removal of apparatus E+W+S

5.—(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, that apparatus must not be removed under this Part of this Schedule and any right of an affected undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the affected undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question 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 an affected undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the affected undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of 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 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, the affected undertaker in question 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 the affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 39 (arbitration).

(5) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 39 (arbitration) and after the grant to the affected undertaker 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 of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the affected undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertaker.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Commencement Information

I5 Sch. 9 Pt. 1 para. 5 in force at 3.8.2023, see art. 1

Facilities and rights for alternative apparatus E+W+S

6.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected undertaker facilities and rights for the construction and maintenance in land of the undertaker 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 the affected undertaker in question or in default of agreement settled by arbitration in accordance with article 39 (arbitration).

(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 arbitrator less favourable on the whole to the affected undertaker in question 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 arbitrator must make such provision for the payment of compensation by the undertaker to that affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Commencement Information

I6 Sch. 9 Pt. 1 para. 6 in force at 3.8.2023, see art. 1

Retained apparatus E+W+S

7.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5 that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5, the undertaker must submit to the affected undertaker in question a plan, section and description of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the affected undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the affected undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by an affected undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If an affected undertaker in accordance with sub-paragraph (2) and 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 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5.

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the affected undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

Commencement Information

I7 Sch. 9 Pt. 1 para. 7 in force at 3.8.2023, see art. 1

8.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 5.

(2) There must 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, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(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

(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,

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 39 (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 the affected undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph (2)—

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to 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 an affected undertaker 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 7 years and 6 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.

Commencement Information

I8 Sch. 9 Pt. 1 para. 8 in force at 3.8.2023, see art. 1

Expenses and costs E+W+S

9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an affected undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertaker, the undertaker must—

(a) bear and pay the cost reasonably incurred by that affected undertaker in making good such damage or restoring the supply; and

(b) make reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected undertaker,

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an affected undertaker, its officers, servants, contractors or agents.

(3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Commencement Information

I9 Sch. 9 Pt. 1 para. 9 in force at 3.8.2023, see art. 1

10.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an affected undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I10 Sch. 9 Pt. 1 para. 10 in force at 3.8.2023, see art. 1

PART 2 E+W+S PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1.  For the protection of any operator, the following provisions, unless otherwise agreed in writing between the undertaker and the operator, have effect. E+W+S

Commencement Information

I11 Sch. 9 Pt. 2 para. 1 in force at 3.8.2023, see art. 1

2.  In this Part of this Schedule— E+W+S

“conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system is construed in accordance with paragraph 1(3A) of that code;

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

“electronic communications code network” means—

(a)

so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; and

(b)

an electronic communications network which the Secretary of State is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

“operator” means the operator of an electronic communications code network.

Commencement Information

I12 Sch. 9 Pt. 2 para. 2 in force at 3.8.2023, see art. 1

3.  The exercise of the powers of article 30 (statutory undertakers) are subject to Part 10 of Schedule 3A (the electronic communications code) to the 2003 Act. E+W+S

Commencement Information

I13 Sch. 9 Pt. 2 para. 3 in force at 3.8.2023, see art. 1

4.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or their construction, or of any subsidence resulting from any of those works— E+W+S

(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works, or other property of an operator); or

(b) there is any interruption in the supply of the service provided by an operator, the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and must—

(i) make reasonable compensation to an operator for loss sustained by it; and

(ii) indemnify an operator against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, an operator by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand may be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between the undertaker and the operator under this paragraph must be referred to and settled by arbitration under article 39 (arbitration).

Commencement Information

I14 Sch. 9 Pt. 2 para. 4 in force at 3.8.2023, see art. 1

5.  This Part of this Schedule does not apply to— E+W+S

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

(b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

Commencement Information

I15 Sch. 9 Pt. 2 para. 5 in force at 3.8.2023, see art. 1

6.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W+S

Commencement Information

I16 Sch. 9 Pt. 2 para. 6 in force at 3.8.2023, see art. 1

PART 3 E+W+S FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY TRANSMISSION PLC AS ELECTRICITY UNDERTAKER AND NATIONAL GRID GAS PLC AS GAS UNDERTAKER

PART 3A - NATIONAL GRID ELECTRICITY TRANSMISSION PLC E+W+S

Application E+W+S

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

Commencement Information

I17 Sch. 9 Pt. 3 Ch. 1 para. 1 in force at 3.8.2023, see art. 1

Interpretation E+W+S

2.  In this Part 3A of this Schedule—

“alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by National Grid together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or must be lodged or which gives or will give access to apparatus;

“authorised development” has the same meaning as in article 2 (interpretation) of this Order (unless otherwise specified) and for the purposes of this Part of this Schedule must include the use and maintenance of the authorised development and construction of any works authorised by this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“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 National Grid’s approval a ground mitigation scheme;

“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 National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

“National Grid” means National Grid Electricity Transmission PLC (Company No. 2366977) whose registered office is at 1-3 Strand, London, WC2N 5EH or any successor as a licence holder within the meaning of Part 1 of the Electricity Act 1989;

“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; and

“specified works” means any of the authorised development or activities (including onshore site preparation works, monitoring, ground work operations or the receipt and erection of construction plant and equipment) undertaken in association with the authorised development which—

(a)

will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 7 or otherwise;

(b)

may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 7 or otherwise; and/or

(c)

includes in relation to any electricity apparatus any activity that is referred to in development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines.”

Commencement Information

I18 Sch. 9 Pt. 3 Ch. 1 para. 2 in force at 3.8.2023, see art. 1

3.  Except for paragraphs 4 (apparatus of National Grid in streets subject to temporary stopping up), 9 (retained apparatus: protection of National Grid as electricity undertaker), 10 (expenses) and 11 (indemnity) which must apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, this Schedule does not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Commencement Information

I19 Sch. 9 Pt. 3 Ch. 1 para. 3 in force at 3.8.2023, see art. 1

Apparatus of National Grid in streets subject to temporary closure E+W+S

4.—(1) Where any public right of way is stopped up under article 11 (closure and diversion of public rights of way and access land), if National Grid has any apparatus in the street or accessed via that street National Grid must be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the closure and the undertaker must grant to National Grid, or must procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the closure of any such street or highway but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 7 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 9.

(2) Notwithstanding the temporary closure under the powers of article 11 (closure and diversion of public rights of way and access land), National Grid must be at liberty at all times to take all necessary access across any such street and/or to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Commencement Information

I20 Sch. 9 Pt. 3 Ch. 1 para. 4 in force at 3.8.2023, see art. 1

Protective works to buildings E+W+S

5.  The undertaker, in the case of the powers conferred by article 16 (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 National Grid which must not unreasonably be withheld.

Commencement Information

I21 Sch. 9 Pt. 3 Ch. 1 para. 5 in force at 3.8.2023, see art. 1

Acquisition of land E+W+S

6.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not appropriate or acquire or take temporary possession of any land or apparatus or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Grid otherwise than by agreement (such agreement not to be unreasonably withheld).

(2) Where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid and/or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Schedule shall prevail.

(3) Any agreement or consent granted by National Grid under paragraph 9 or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).

Commencement Information

I22 Sch. 9 Pt. 3 Ch. 1 para. 6 in force at 3.8.2023, see art. 1

Removal of apparatus E+W+S

7.—(1) If, in the exercise of the powers conferred by the Order, the undertaker acquires any interest in or possesses temporarily any Order land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works comprised in the authorised development 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 National Grid 56 days’ advance written notice of that requirement, together with a plan 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 National Grid 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 National Grid to its satisfaction (taking into account paragraph 8(1) below) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

(b) 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, National Grid 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 obtain 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 National Grid to use its compulsory purchase powers to this end unless it 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 National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Grid 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 of this Schedule.

Commencement Information

I23 Sch. 9 Pt. 3 Ch. 1 para. 7 in force at 3.8.2023, see art. 1

Facilities and rights for alternative apparatus E+W+S

8.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection 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 National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid under sub-paragraph (1) above 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 National Grid 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 matter must be referred to arbitration under paragraph 31 (arbitration) of this Part 3 and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph (2) article 39 (arbitration) of this Order applies.

Commencement Information

I24 Sch. 9 Pt. 3 Ch. 1 para. 8 in force at 3.8.2023, see art. 1

Retained apparatus: Protection of National Grid as Electricity Undertaker E+W+S

9.—(1) Not less than 56 days before the commencement of any specified works, the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity assets.

(2) In relation to works which will or may be situated on, over, under or within—

(a) 15 metres measured in any direction of any apparatus, or

(b) involve embankment works within 15 metres of any apparatus,

the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant;

(d) the position of all apparatus;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

(f) any intended maintenance regimes;

(g) an assessment of risks of rise of earth issues; and

(h) a ground monitoring scheme, where required.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must in addition to the matters set out in sub-paragraph (2) include a method statement describing—

(a) details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b) demonstration that pylon foundations will not be affected prior to, during and post construction;

(c) details of load bearing capacities of trenches;

(d) details of cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e) a written management plan for high voltage hazard during construction and ongoing maintenance of the cable route;

(f) written details of the operations and maintenance regime for the cable, including frequency and method of access;

(g) assessment of earth rise potential if reasonably required by National Grid’s engineers; and

(h) evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to and including 26 tonnes in weight.

(4) The undertaker must not commence any works to which sub-paragraph (1), (2) or (3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraph (1), (2), or (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (6) or (8); and

(b) must not be unreasonably withheld.

(6) In relation to a work to which sub-paragraph (1), (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (2), (3) or (6) as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (6), (8) and/or (9) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where National Grid 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 National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraphs (6) or (8) and 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 (7) shall apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

(10) Nothing in this paragraph shall preclude 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 any specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances; and comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under this Order, the undertaker must comply with National Grid’s policies for development near overhead lines ENA TA 43-8 and the Health and Safety Executive’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Commencement Information

I25 Sch. 9 Pt. 3 Ch. 1 para. 9 in force at 3.8.2023, see art. 1

Expenses E+W+S

10.—(1) Save where otherwise agreed in writing between National Grid and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus or alternative apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule including without limitation—

(a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 7(3); or

(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(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.

(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—

(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

(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 settled by arbitration in accordance with article 39 (arbitration) of this Order 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 National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances 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)—

(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

(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) Any amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph (1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on National Grid 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.

Commencement Information

I26 Sch. 9 Pt. 3 Ch. 1 para. 10 in force at 3.8.2023, see art. 1

Indemnity E+W+S

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works (including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

(b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party other than arising from any default by National Grid.

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) where the undertaker 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 or as otherwise agreed between the undertaker and National Grid.

(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 National Grid, its officers, servants, contractors or agents;

(b) any authorised development and/or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Act or article 5 (benefit of the Order) of the Order subject to the proviso that once such works become apparatus (“new apparatus”), any works yet to be executed and not falling within this sub-paragraph 11(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 11 in respect of such new apparatus; and/or

(c) any indirect or consequential loss of 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) National Grid must give the undertaker reasonable notice of any such claim or demand and no settlement, admission of liability or compromise or demand must be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

Commencement Information

I27 Sch. 9 Pt. 3 Ch. 1 para. 11 in force at 3.8.2023, see art. 1

Enactments and agreements E+W+S

12.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between the undertaker and National Grid, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I28 Sch. 9 Pt. 3 Ch. 1 para. 12 in force at 3.8.2023, see art. 1

Co-operation E+W+S

13.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 7(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 9, National Grid shall use its best endeavours to 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 National Grid’s undertaking and National Grid shall use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever National Grid’s consent, agreement or approval to is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by National Grid, it must not be unreasonably withheld or delayed.

Commencement Information

I29 Sch. 9 Pt. 3 Ch. 1 para. 13 in force at 3.8.2023, see art. 1

Access E+W+S

14.  If in consequence of the agreement reached in accordance with paragraph 6 or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Commencement Information

I30 Sch. 9 Pt. 3 Ch. 1 para. 14 in force at 3.8.2023, see art. 1

Arbitration E+W+S

15.  Save for differences or disputes arising under paragraphs 7(2), 7(4), 8(1) and 9 any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 39 (arbitration).

Commencement Information

I31 Sch. 9 Pt. 3 Ch. 1 para. 15 in force at 3.8.2023, see art. 1

Notices E+W+S

16.  The plans submitted to National Grid by the undertaker pursuant to paragraph 9(1) must be sent to National Grid LSBUD at https://lsbud.co.uk/ or [e-mail] or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Commencement Information

I32 Sch. 9 Pt. 3 Ch. 1 para. 16 in force at 3.8.2023, see art. 1

PART 3B - NATIONAL GRID GAS PLC E+W+S

Application E+W+S

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

Commencement Information

I33 Sch. 9 Pt. 3 Ch. 2 para. 17 in force at 3.8.2023, see art. 1

Interpretation E+W+S

18.  In this Part 3B of this Schedule—

“alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means any mains, pipes or other apparatus belonging to or maintained by National Grid for the purposes of gas supply, together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or must be lodged or which gives or will give access to apparatus;

“authorised development” has the same meaning as in article 2 (interpretation) of this Order (unless otherwise specified) and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised development and construction of any works authorised by this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“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 National Grid’s approval a ground mitigation scheme;

“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 National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

“National Grid” means National Grid Gas PLC (Company No. 200600) whose registered office is at 1-3 Strand, London, WC2N 5EH, or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

“Network Code” means the network code prepared by National Grid as from time to time modified pursuant to the licence granted, or treated as granted, to it from time to time under the Gas Act 1986 as amended, in respect of its national transmission system;

“Network Code Claims” means any claim made against National Grid by any person under the Network Code arising out of or in connection with any failure by National Grid to make gas available for off take at, or a failure to accept gas tendered for delivery from, any entry point to or exit point from the National Grid network as a result of the authorised works or any costs and/or expenses incurred by National Grid as a result of or in connection with, it taking action (including purchase or buy back of capacity) for the purpose of managing constraint or potential constraint on the National Grid Network which may arise as a direct result of the authorised works;

“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; and

“specified works” means any of the authorised development or activities (including onshore site preparation works, monitoring, ground work operations or the receipt and erection of construction plant and equipment) undertaken in association with the authorised development which—

(a)

will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 23 or otherwise;

(b)

may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 23 or otherwise; and/or

(c)

includes in relation to any gas apparatus any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 (National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW/22”.

Commencement Information

I34 Sch. 9 Pt. 3 Ch. 2 para. 18 in force at 3.8.2023, see art. 1

19.  Except for paragraphs 20 (apparatus of National Grid in streets subject to temporary closure), 25 (retained apparatus: protection of National Grid as gas undertaker), 26 (expenses) and 27 (indemnity) which must apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, this Schedule does not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Commencement Information

I35 Sch. 9 Pt. 3 Ch. 2 para. 19 in force at 3.8.2023, see art. 1

Apparatus of National Grid in streets subject to temporary closure E+W+S

20.—(1) Where any public right of way is closed under article 11 (closure and diversion of public rights of way and access land), if National Grid has any apparatus in the street or accessed via that street National Grid must be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the closure and the undertaker must grant to National Grid, or must procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the closure of any such street or highway but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 23 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 25.

(2) Notwithstanding the temporary closure under the powers of article 11 (closure and diversion of public rights of way and access land), National Grid must be at liberty at all times to take all necessary access across any such street and/or to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Commencement Information

I36 Sch. 9 Pt. 3 Ch. 2 para. 20 in force at 3.8.2023, see art. 1

Protective works to buildings E+W+S

21.  The undertaker, in the case of the powers conferred by article 16 (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 National Grid which must not unreasonably be withheld.

Commencement Information

I37 Sch. 9 Pt. 3 Ch. 2 para. 21 in force at 3.8.2023, see art. 1

Acquisition of land E+W+S

22.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not appropriate or acquire or take temporary possession of any land or apparatus or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Grid otherwise than by agreement (such agreement not to be unreasonably withheld).

(2) Where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid and/or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Schedule shall prevail.

(3) Any agreement or consent granted by National Grid under paragraph 23 or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).

Commencement Information

I38 Sch. 9 Pt. 3 Ch. 2 para. 22 in force at 3.8.2023, see art. 1

Removal of apparatus E+W+S

23.—(1) If, in the exercise of the powers conferred by the Order, the undertaker acquires any interest in or possess temporarily any Order land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works comprised in the authorised development 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 National Grid 56 days’ advance written notice of that requirement, together with a plan 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 National Grid 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 National Grid to its satisfaction (taking into account paragraph 24(1) below) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

(b) 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 7(2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid 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 obtain 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 National Grid to use its compulsory purchase powers to this end unless it 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 National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Grid of any such facilities and rights as are referred to in sub-paragraph 7(2) or 7(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 of this Schedule.

Commencement Information

I39 Sch. 9 Pt. 3 Ch. 2 para. 23 in force at 3.8.2023, see art. 1

Facilities and rights for alternative apparatus E+W+S

24.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection 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 National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid under sub-paragraph 8(1) above 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 National Grid 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 matter must be referred to arbitration under paragraph 31 (arbitration) and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph 8(2) article 39 (arbitration) of this Order must apply.

Commencement Information

I40 Sch. 9 para. 24 in force at 3.8.2023, see art. 1

Retained apparatus: protection of National Grid as Gas Undertaker E+W+S

25.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan and, if reasonably required by National Grid, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to National Grid under sub-paragraph 9(1) must include a method statement and describe—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant etc;

(d) the position of all apparatus;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

(f) any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraphs 9(1) and (2) apply until National Grid has given written approval of the plan so submitted.

(4) Any approval of National Grid required under sub-paragraph (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7); and

(b) must not be unreasonably withheld.

(5) In relation to a work to which sub-paragraphs 9(1) and/or (2) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the provision of protective works 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 9(1) and (2) or as relevant sub-paragraph (5), as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (7) and/or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(7) Where National Grid 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 National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such protective works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) If National Grid in accordance with sub-paragraph (5) or (7) and 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 17 to 19 and 22 to 23 apply as if the removal of the apparatus had been required by the undertaker under paragraph 23(2).

(9) Nothing in this paragraph shall preclude 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 any specified 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.

(10) The undertaker will not be required to comply with sub-paragraph 9(1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under this Order the undertaker must comply with National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22”and the Health and Safety Executive’s HS(~G)47 Avoiding Danger from underground services”.

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that National Grid 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 26.

Commencement Information

I41 Sch. 9 para. 25 in force at 3.8.2023, see art. 1

Expenses E+W+S

26.—(1) Save where otherwise agreed in writing between National Grid and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus or alternative apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule including without limitation—

(a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 23(3); or

(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(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.

(2) There will be deducted from any sum payable under sub-paragraph 10(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—

(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

(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 settled by arbitration in accordance with article 39 (arbitration) of this Order 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 National Grid by virtue of sub-paragraph 10(1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances 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 10(3)—

(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

(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) Any amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph 10(1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on National Grid 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.

Commencement Information

I42 Sch. 9 para. 26 in force at 3.8.2023, see art. 1

Indemnity E+W+S

27.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works (including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

(b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party and including any Network Code Claims other than arising from any default by National Grid.

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) where the undertaker 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 or as otherwise agreed between the undertaker and National Grid.

(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 National Grid, its officers, servants, contractors or agents;

(b) any authorised development and/or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Act or article 5 (benefit of the Order) of the Order subject to the proviso that once such works become apparatus (“new apparatus”), any works yet to be executed and not falling within this sub-paragraph (3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 11 in respect of such new apparatus; and/or

(c) any indirect or consequential loss of 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) National Grid must give the undertaker reasonable notice of any such claim or demand and no settlement, admission of liability or compromise or demand must be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

Commencement Information

I43 Sch. 9 para. 27 in force at 3.8.2023, see art. 1

Enactments and agreements E+W+S

28.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between the undertaker and National Grid, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I44 Sch. 9 para. 28 in force at 3.8.2023, see art. 1

Co-operation E+W+S

29.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 23(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 25, National Grid shall use its best endeavours to 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 National Grid’s undertaking and National Grid shall use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever National Grid’s consent, agreement or approval to is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by National Grid, it must not be unreasonably withheld or delayed.

Commencement Information

I45 Sch. 9 para. 29 in force at 3.8.2023, see art. 1

Access E+W+S

30.  If in consequence of the agreement reached in accordance with paragraph 22 or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Commencement Information

I46 Sch. 9 para. 30 in force at 3.8.2023, see art. 1

Arbitration E+W+S

31.  Save for differences or disputes arising under paragraphs 23(2), 23(4), 24(1) and 25 any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 39 (arbitration).

Commencement Information

I47 Sch. 9 para. 31 in force at 3.8.2023, see art. 1

Notices E+W+S

32.  The plans submitted to National Grid by the undertaker pursuant to paragraph 25(1) must be sent to National Grid LSBUD at https://lsbud.co.uk/ or [e-mail] or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Commencement Information

I48 Sch. 9 para. 32 in force at 3.8.2023, see art. 1

PART 4 E+W+S PROTECTION OF RAILWAY INTERESTS

1.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 16 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph. E+W+S

Commencement Information

I49 Sch. 9 Pt. 4 para. 1 in force at 3.8.2023, see art. 1

2.  In this Part of this Schedule— E+W+S

“asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by Network Rail;

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

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

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act l993(3);

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London, NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006(4) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited and any successor to Network Rail Infrastructure Limited’s railway undertaking;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to Network Rail and—

(a)

any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and

(b)

any easement or other property interest held or used by Network Rail or a tenant or licensee of Network Rail for the purposes of such railway or works, apparatus or equipment;

“regulatory consents” means any consent or approval required under—

(a)

the Railways Act 1993;

(b)

the network licence; and/or

(c)

any other relevant statutory or regulatory provisions;

by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development;

“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 4 (maintenance of authorised development) in respect of such works.

Commencement Information

I50 Sch. 9 Pt. 4 para. 2 in force at 3.8.2023, see art. 1

3.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute. E+W+S

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

Commencement Information

I51 Sch. 9 Pt. 4 para. 3 in force at 3.8.2023, see art. 1

4.—(1) The undertaker must not exercise the powers conferred by— E+W+S

(a) article 3 (development consent granted by the Order);

(b) article 4 (power to maintain the authorised project);

(c) article 15 (discharge of water);

(d) article 17 (authority to survey and investigate the land onshore);

(e) article 18 (compulsory acquisition of land);

(f) article 21 (compulsory acquisition of rights etc);

(g) article 22 (private rights);

(h) article 24 (statutory authority to override easements and other rights);

(i) article 25 (acquisition of subsoil only);

(j) article 28 (temporary use of land for carrying out the authorised project);

(k) article 29 (temporary use of land for maintaining the authorised project);

(l) article 30 (statutory undertakers);

(m) article 36 (felling or lopping of trees and removal of hedgerows);

(n) article 37 (trees subject to tree preservation orders);

(o) the powers conferred by section 11(3) (power of entry) of the 1965 Act;

(p) the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;

(q) the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016;

(r) any powers under in respect of the temporary possession of land under the Neighbourhood Planning Act 2017;

in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

(2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(3) The undertaker must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, article 22 (private rights), article 24 (power to override easements and other rights) or article 30 (statutory undertakers), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail.

(5) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

(6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion).

(7) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.

Commencement Information

I52 Sch. 9 Pt. 4 para. 4 in force at 3.8.2023, see art. 1

5.—(1) The undertaker must not submit the construction traffic management plan to the relevant planning authority in accordance with requirement 19 (construction traffic management plan) without having first obtained the written approval of Network Rail in respect of all provisions relating to Cranswick Level Crossing, Driffield Level Crossing and safety briefings for HGV drivers on the safe use of level crossings affected by the authorised project in accordance with sub-paragraph (2). E+W+S

(2) The undertaker must provide Network Rail with a draft of the construction traffic management plan for approval and Network Rail must within a period of 28 days beginning with the date on which the draft construction traffic management plan is received by Network Rail and acting reasonably serve written notice on the undertaker confirming that—

(a) the draft construction traffic management plan is approved; or

(b) the draft construction traffic management plan is approved subject to reasonable amendments as required by Network Rail; or

(c) the draft construction traffic management plan is not approved and the reason for the non-approval; or

(d) that further information is required in order for Network Rail to make its determination (in which case this paragraph 5(2) must apply to such further information from the date of its receipt by Network Rail).

(3) In the event that Network Rail fails to serve written notice in accordance with paragraph 5(2) within 28 days of receipt Network Rail is deemed to have served a notice pursuant to paragraph 5(2)(a).

(4) The undertaker must include any reasonable amendments which are required by Network Rail and notified to the undertaker by Network Rail in the notice given pursuant to paragraph 5(2)(b) in the draft construction traffic management plan it submits to the relevant planning authority in accordance with requirement 19 (construction traffic management plan) and the undertaker must not submit any such written details that relate to Cranswick Level Crossing, Driffield Level Crossing and/or safety briefings for HGV drivers on the safe use of level crossings affected by the authorised project to the relevant planning authority which have not been approved by Network Rail in accordance with paragraphs 5(2) or 5(3).

(5) Each notice and all other information required to be sent to Network Rail under the terms of this paragraph 5 must—

(a) be sent to the Company Secretary and General Counsel at Network Rail Infrastructure Limited, 1 Eversholt Street, London, NW1 2DN via Royal Mail plc’s special delivery service (or if this service is no longer being provided an appropriate recorded delivery postal service) and marked for the attention of the Level Crossing Manager; and

(b) contain a clear statement on its front page that Network Rail must respond within 28 days of receipt.

(6) In the event that any subsequent changes are made to the construction traffic management plan following consultation with Network Rail, in so far as such changes impact on railway property, the undertaker must not submit any such written details to the relevant planning authorities or finalise any updates to the construction traffic management plan without further consultation with Network Rail.

Commencement Information

I53 Sch. 9 Pt. 4 para. 5 in force at 3.8.2023, see art. 1

6.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration. E+W+S

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.

Commencement Information

I54 Sch. 9 Pt. 4 para. 6 in force at 3.8.2023, see art. 1

7.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 6(4) must, when commenced, be constructed— E+W+S

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 6;

(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c) in such manner as to cause as little damage as is possible to railway property; and

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

Commencement Information

I55 Sch. 9 Pt. 4 para. 7 in force at 3.8.2023, see art. 1

8.  The undertaker must— E+W+S

(a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

(b) supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it.

Commencement Information

I56 Sch. 9 Pt. 4 para. 8 in force at 3.8.2023, see art. 1

9.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them. E+W+S

Commencement Information

I57 Sch. 9 Pt. 4 para. 9 in force at 3.8.2023, see art. 1

10.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions. E+W+S

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 6(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 11(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

Commencement Information

I58 Sch. 9 Pt. 4 para. 10 in force at 3.8.2023, see art. 1

11.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail— E+W+S

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 6(3) or in constructing any protective works under the provisions of paragraph 6(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;

(c) in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

(d) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

Commencement Information

I59 Sch. 9 Pt. 4 para. 11 in force at 3.8.2023, see art. 1

12.—(1) In this paragraph— E+W+S

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 6(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 6(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

(c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 6(1) has effect subject to the sub-paragraph.

(6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a) the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

(b) Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;

(c) Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and

(d) the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.

(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

(a) Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus;

(b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 7.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 16(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 11(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

Commencement Information

I60 Sch. 9 Pt. 4 para. 12 in force at 3.8.2023, see art. 1

13.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property. E+W+S

Commencement Information

I61 Sch. 9 Pt. 4 para. 13 in force at 3.8.2023, see art. 1

14.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway. E+W+S

Commencement Information

I62 Sch. 9 Pt. 4 para. 14 in force at 3.8.2023, see art. 1

15.  Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail. E+W+S

Commencement Information

I63 Sch. 9 Pt. 4 para. 15 in force at 3.8.2023, see art. 1

16.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail— E+W+S

(a) by reason of the construction, maintenance or operation of a specified work or the failure thereof; 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 a specified work,

(c) by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development;

(d) in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;

(e) in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission: and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must—

(a) give the undertaker reasonable written notice of any such claims or demands;

(b) not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

(c) take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

(3) The sums payable by the undertaker under sub-paragraph (1) shall if relevant include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.

Commencement Information

I64 Sch. 9 Pt. 4 para. 16 in force at 3.8.2023, see art. 1

17.  Network Rail 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 (including the amount of the relevant costs mentioned in paragraph 16) 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 pursuant to this Part of this Schedule (including any claim relating to those relevant costs). E+W+S

Commencement Information

I65 Sch. 9 Pt. 4 para. 17 in force at 3.8.2023, see art. 1

18.  In the assessment of any sums payable to Network Rail under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable. E+W+S

Commencement Information

I66 Sch. 9 Pt. 4 para. 18 in force at 3.8.2023, see art. 1

19.  The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of— E+W+S

(a) any railway property shown on the works and land plans and described in the book of reference;

(b) any lands, works or other property held in connection with any such railway property; and

(c) any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

Commencement Information

I67 Sch. 9 Pt. 4 para. 19 in force at 3.8.2023, see art. 1

20.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I (the provision of services) of the Railways Act 1993. E+W+S

Commencement Information

I68 Sch. 9 Pt. 4 para. 20 in force at 3.8.2023, see art. 1

21.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent under article 5 (benefit of the Order) of this 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)— E+W+S

(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.

Commencement Information

I69 Sch. 9 Pt. 4 para. 21 in force at 3.8.2023, see art. 1

22.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 38 (certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail. E+W+S

Commencement Information

I70 Sch. 9 Pt. 4 para. 22 in force at 3.8.2023, see art. 1

23.  In relation to any dispute arising under this Part of this Schedule (except for those disputes referred to in paragraph 12) the provisions of article 39 (arbitration) shall not apply and any such dispute, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers. E+W+S

Commencement Information

I71 Sch. 9 Pt. 4 para. 23 in force at 3.8.2023, see art. 1

PART 5 E+W+S FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

1.—(1) The following provisions shall apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency. E+W+S

(2) In this Part of this Schedule—

“the Agency” means the Environment Agency;

“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” shall be construed accordingly;

“drainage work” means any main river and includes any land which provides or is expected to provide flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

“the fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

“main river” means all watercourses shown as such on the statutory main river maps held by the Agency and the Department for Environment, Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;

“plans” includes sections, drawings, specifications, calculations and method statements;

“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—

(a)

affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;

(b)

affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;

(c)

cause obstruction to the free passage of fish or damage to any fishery;

(d)

affect the conservation, distribution or use of water resources.; or

(e)

affect the conservation value of the main river and habitats in its immediate vicinity; and

“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, basins, sewers and passages through which water flows except a public sewer.

Commencement Information

I72 Sch. 9 Pt. 5 para. 1 in force at 3.8.2023, see art. 1

2.—(1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably request. E+W+S

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 11.

(3) Any approval of the Agency required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and

(c) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

Commencement Information

I73 Sch. 9 Pt. 5 para. 2 in force at 3.8.2023, see art. 1

3.  Without limiting paragraph 2, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary— E+W+S

(a) to safeguard any drainage work against damage; or

(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

Commencement Information

I74 Sch. 9 Pt. 5 para. 3 in force at 3.8.2023, see art. 1

4.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 3, must be constructed— E+W+S

(a) without unreasonable delay in accordance with the plans approved under this Part; and

(b) to the reasonable satisfaction of the Agency, and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

(2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work.

(4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

(5) Subject to sub-paragraph (6) and paragraph 9, if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (4) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice, and any expenditure incurred by the Agency in so doing shall be recoverable from the undertaker.

(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not, except in the case of an emergency, exercise the powers conferred by sub–paragraph (4) until the dispute has been finally determined in accordance with paragraph 11.

Commencement Information

I75 Sch. 9 Pt. 5 para. 4 in force at 3.8.2023, see art. 1

5.—(1) Subject to sub-paragraph (6) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence. E+W+S

(2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

(3) Subject to sub–paragraph (5) and paragraph 9, if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any expenditure incurred by the Agency in so doing shall be recoverable from the undertaker.

(4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with these Protective Provisions the Agency may serve written notice requiring the undertaker to cease all or part of the specified works and the undertaker must cease the specified works or part thereof until it has obtained the consent or complied with the condition unless the cessation of the specified works or part thereof would cause greater damage than compliance with the written notice.

(5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency shall not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 11.

(6) This paragraph does not apply to drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of the Order from doing so.

Commencement Information

I76 Sch. 9 Pt. 5 para. 5 in force at 3.8.2023, see art. 1

6.  Subject to paragraph 9, if by reason of the construction of any specified work or of the failure of any such work, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure incurred by the Agency in so doing from the undertaker. E+W+S

Commencement Information

I77 Sch. 9 Pt. 5 para. 6 in force at 3.8.2023, see art. 1

7.  If by reason of construction of the specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction. E+W+S

Commencement Information

I78 Sch. 9 Pt. 5 para. 7 in force at 3.8.2023, see art. 1

8.—(1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work. E+W+S

(2) If by reason of—

(a) the construction of any specified work; or

(b) the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) Subject to paragraph 9, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in so doing shall be recoverable from the undertaker.

(4) Subject to paragraph 9, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

Commencement Information

I79 Sch. 9 Pt. 5 para. 8 in force at 3.8.2023, see art. 1

9.  The undertaker shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may incur— E+W+S

(a) in the examination or approval of plans under this Part;

(b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Part; and

(c) in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.

Commencement Information

I80 Sch. 9 Pt. 5 para. 9 in force at 3.8.2023, see art. 1

10.—(1) The undertaker is responsible for and shall indemnify the Agency against all costs and losses not otherwise provided for in this Part which may be incurred or suffered by the Agency by reason of— E+W+S

(a) the construction, operation or maintenance of any specified works comprised within the authorised works or the failure of any such works comprised within them; or

(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised works or dealing with any failure of the authorised works.

(2) For the avoidance of doubt, in sub–paragraph (1)—

“costs” includes—

(a)

expenses and charges;

(b)

staff costs and overheads;

(c)

legal costs;

“losses” includes physical damage.

(3) The undertaker shall indemnify the Agency against all liabilities, claims and demands arising out of or in connection with the authorised works or otherwise out of the matters referred to in sub-paragraph (1)(a) and (1)(b).

(4) For the avoidance of doubt, in sub–paragraph (3)—

“claims” and “demands” include as applicable—

(a)

costs (within the meaning of sub–paragraph (2)) incurred in connection with any claim or demand; and

(b)

any interest element of sums claimed or demanded;

“liabilities” includes—

(a)

contractual liabilities;

(b)

tortious liabilities (including liabilities for negligence or nuisance);

(c)

liabilities to pay statutory compensation or for breach of statutory duty;

(d)

liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).

(5) The Agency must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise shall be made without the agreement of the undertaker which agreement shall not be unreasonably withheld or delayed.

(6) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the undertaker from any liability under the provisions of this Part.

Commencement Information

I81 Sch. 9 Pt. 5 para. 10 in force at 3.8.2023, see art. 1

11.  Any dispute arising between the undertaker and the Agency under this Part shall, if the parties agree, be determined by arbitration under article 39 (arbitration), but shall otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Energy Security and Net Zero or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other. E+W+S

Commencement Information

I82 Sch. 9 Pt. 5 para. 11 in force at 3.8.2023, see art. 1

PART 6 E+W+S FOR THE PROTECTION OF DRAINAGE AUTHORITIES

1.  The provisions of this Part have effect for the protection of the drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority. E+W+S

Commencement Information

I83 Sch. 9 Pt. 6 para. 1 in force at 3.8.2023, see art. 1

2.  In this Part of this Schedule— E+W+S

“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” is to be construed accordingly;

“drainage authority” means in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991(5);

“drainage work” means any ordinary watercourse and includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse which is the responsibility of the drainage authority;

“independent review” means a review carried out by a third party confirming the findings of the undertaker in the assessment of the impact of the proposed specified work on flood risk;

“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991;

“plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and

“specified work” means so much of any work or operation authorised by this Order as is in, on, under over or within 9 metres of a drainage work and which comprises any of the following works carried out in relation to or which may affect any ordinary watercourse—

(a)

the erection of any mill, dam, weir, or other similar obstruction to the flow of an ordinary watercourse, or raising or otherwise altering any such obstruction;

(b)

the construction or installation of a bridge or other structure;

(c)

the erection of a culvert in an ordinary watercourse;

(d)

the alteration of an ordinary watercourse or a culvert or other form of drainage infrastructure in a manner that would be likely to affect the flow of an ordinary watercourse;

(e)

the introduction by means of any channel, siphon, pipeline or sluice or by any other means whatsoever any water into any ordinary watercourse within the Order limits so as to directly or indirectly increase the flow or volume of water in any ordinary watercourse within the Order limits without the previous consent of the drainage authority;

(f)

any work likely to obstruct flow or adversely affect the integrity of any embankment, wall or enclosing structure containing an ordinary watercourse.

Commencement Information

I84 Sch. 9 Pt. 6 para. 2 in force at 3.8.2023, see art. 1

3.—(1) Before commencing construction of a specified work, the undertaker must submit to the drainage authority plans of the specified work, including an independent review and such further particulars available to it as the drainage authority may within 14 days of the submission of the plans reasonably request. E+W+S

(2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph.

(3) A specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under paragraph 12.

(4) Any approval of the drainage authority required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) is deemed to have been given if it is neither given nor refused within 56 days of the submission of the plans for approval, or submission of further particulars (where required by the drainage authority under sub–paragraph (1)) whichever is the later; and

(c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, for the protection of any ordinary watercourse or for the prevention of flooding.

(5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.

Commencement Information

I85 Sch. 9 Pt. 6 para. 3 in force at 3.8.2023, see art. 1

4.  Without limiting paragraph 3, the requirements which the drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary— E+W+S

(a) to safeguard any drainage work against damage by reason of any specified work; or

(b) to secure that the efficiency of any drainage work for flood defence and land drainage purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of any specified work.

Commencement Information

I86 Sch. 9 Pt. 6 para. 4 in force at 3.8.2023, see art. 1

5.—(1) Subject to sub–paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 4, must be constructed— E+W+S

(a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(b) to the reasonable satisfaction of the drainage authority, and an officer of the drainage authority is entitled to watch and inspect the construction of such works.

(2) The undertaker must give to the drainage authority—

(a) not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and

(b) notice in writing of its completion not later than 7 days after the date of completion.

(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work to which the protective works relate.

(4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is agreed, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.

(5) Subject to sub–paragraph (6) and paragraphs 9 and 10, if within a reasonable period, being not less than 28 days from the date when a notice under sub–paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any reasonable expenditure incurred by it in so doing is recoverable from the undertaker.

(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not except in an emergency exercise the powers conferred by sub–paragraph (5) until the dispute has been finally determined in accordance with paragraph 12.

Commencement Information

I87 Sch. 9 Pt. 6 para. 5 in force at 3.8.2023, see art. 1

6.—(1) Subject to sub–paragraph (5), the undertaker must from the commencement of the construction of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation on land held by the undertaker for the purpose of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence. E+W+S

(2) If any drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of the work, or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the specified work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.

(3) Subject to sub–paragraph (4) and paragraphs 9 and 10, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub–paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is reasonably necessary for such compliance and may recover any reasonable expenditure reasonably incurred by it in so doing from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub–paragraph (2), the drainage authority must not except in a case of emergency exercise the powers conferred by sub–paragraph (3) until the dispute has been finally determined in accordance with paragraph 12.

(5) This paragraph does not apply to—

(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and

(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

Commencement Information

I88 Sch. 9 Pt. 6 para. 6 in force at 3.8.2023, see art. 1

7.  Subject to paragraphs 9 and 10 and paragraph 6(5)(b), if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes or land drainage is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker any expenditure incurred by the drainage authority in so doing from the undertaker. E+W+S

Commencement Information

I89 Sch. 9 Pt. 6 para. 7 in force at 3.8.2023, see art. 1

8.  If by reason of the construction of the specified work the drainage authority’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the drainage authority to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction. E+W+S

Commencement Information

I90 Sch. 9 Pt. 6 para. 8 in force at 3.8.2023, see art. 1

9.  The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur— E+W+S

(a) in the examination or approval of plans under this Part of this Schedule;

(b) in the inspection of the construction of the specified works or any protective works required by the drainage authority under this Part of this Schedule; and

(c) in the carrying out of any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified works.

Commencement Information

I91 Sch. 9 Pt. 6 para. 9 in force at 3.8.2023, see art. 1

10.—(1) The undertaker must make reasonable compensation for costs and losses which may be reasonably incurred or suffered by the drainage authority by reason of— E+W+S

(a) the construction of any specified work comprised within the authorised works; or

(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction of the specified works.

(2) In sub–paragraph (1)—

“costs” includes—

(a)

expenses and charges;

(b)

staff costs and overheads; and

(c)

legal costs; and

“losses” includes physical damage.

(3) The undertaker must make reasonable compensation for liabilities, claims and demands against the drainage authority arising out of or in connection with the specified works or otherwise out of the matters referred to in sub–paragraphs (1)(a) and (1)(b).

(4) In sub–paragraph (3)—

“claims” and “demands” include as applicable—

(a)

costs (within the meaning of sub–paragraph (2)) incurred in connection with any claim or demand; and

(b)

any interest element of sums claimed or demanded; and

“liabilities” includes—

(a)

contractual liabilities;

(b)

tortious liabilities (including liabilities for negligence or nuisance);

(c)

liabilities to pay statutory compensation or for breach of statutory duty; and

(d)

liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).

(5) The drainage authority must give to the undertaker notice of any such claim or demand.

(6) The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom.

(7) The drainage authority must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(8) The drainage authority must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.

(9) The drainage authority must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action and is entitled to be repaid its reasonable expenses reasonably incurred in so doing.

Commencement Information

I92 Sch. 9 Pt. 6 para. 10 in force at 3.8.2023, see art. 1

11.  The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the drainage authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part of this Schedule. E+W+S

Commencement Information

I93 Sch. 9 Pt. 6 para. 11 in force at 3.8.2023, see art. 1

12.  Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 39 (arbitration), but otherwise is to be determined by the Secretary of State for Energy Security and Net Zero on a reference to them by the undertaker or the drainage authority, after notice in writing by one to the other. E+W+S

Commencement Information

I94 Sch. 9 Pt. 6 para. 12 in force at 3.8.2023, see art. 1

PART 7 E+W+S FOR THE PROTECTION OF DOGGERBANK OFFSHORE WIND FARM PROJECT 1 PROJCO LIMITED AND DOGGERBANK OFFSHORE WIND FARM PROJECT 2 PROJCO LIMITED

1.  For the protection of Doggerbank Offshore Wind Farm Project 1 Projco Limited (Company No. 07791991) and Doggerbank Offshore Wind Farm Project 2 Projco Limited (Company No. 07914510) as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Dogger Bank. E+W+S

Commencement Information

I95 Sch. 9 Pt. 7 para. 1 in force at 3.8.2023, see art. 1

2.  Part 1 of Schedule 9 shall not apply in respect of the interaction between the Hornsea Four authorised development and the Dogger Bank authorised development. E+W+S

Commencement Information

I96 Sch. 9 Pt. 7 para. 2 in force at 3.8.2023, see art. 1

3.  In this Part of this Schedule— E+W+S

“acceptable insurance” means a third party liability insurance effected and maintained by the undertaker to a level of not less than £50,000,000 (fifty million pounds) (or such lower amount as may be agreed by Dogger Bank) per occurrence or series of occurrences arising out of one event. Such insurance shall be maintained for the construction period of the authorised development which constitute specified works and arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the same requirements as an “acceptable credit provider”, such policy shall include (but without limitation)—

(a)

Dogger Bank as a Co-Insured;

(b)

a cross liabilities clause; and

(c)

contractors’ pollution liability for third party property damage and third party bodily damage arising from a pollution/contamination event with cover of £10,000,000.00 (ten million pounds) per event or £20,000,000.00 (twenty million pounds) in aggregate;

“Dogger Bank” means Doggerbank Offshore Wind Farm Project 1 Projco Limited (Company No. 07791991) and Doggerbank Offshore Wind Farm Project 2 Projco Limited (Company No. 07914510) whose registered office is at No.1 Forbury Place, 43 Forbury Road, Reading, United Kingdom, RG1 3JH;

“the Dogger Bank authorised development” means the onshore development authorised by the Dogger Bank Order;

“Dogger Bank limits of deviation” means the areas of the Dogger Bank Order land in respect of which the Dogger Bank authorised development may be constructed, in accordance with article 3(2) of the Dogger Bank Order;

“the Dogger Bank Order” means the Dogger Bank Creyke Beck Offshore Wind Farm Order 2015 (as amended)(6);

“the Dogger Bank Order land” means the land or any part of it shown as falling within the Dogger Bank Order limits;

“ground mitigation scheme” means a scheme approved by Dogger Bank (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the Dogger Bank authorised development 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 Dogger Bank’s approval a ground mitigation scheme;

“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; and

“the Hornsea Four authorised development” means the development authorised by this Order;

“the respective authorised developments” means the Dogger Bank authorised development and the Hornsea Four authorised development;

“specified works” means the carrying out of any of the authorised development over, under or within 15 metres of the Dogger Bank authorised development or in the event that the Dogger Bank authorised development has not been constructed within the Dogger Bank limits of deviation.

Commencement Information

I97 Sch. 9 Pt. 7 para. 3 in force at 3.8.2023, see art. 1

Regulation of powers over the Hornsea Four Order land E+W+S

4.—(1) The undertaker may not exercise the powers under any of the articles of the Order specified in sub-paragraph (2) over or in respect of the Dogger Bank limits of deviation otherwise than with the prior written consent of Dogger Bank.

(2) The articles referred to in sub-paragraph (1) are—

(a) article 8 (street works);

(b) article 10 (temporary restrictions of streets and public rights of way);

(c) article 11 (stopping up and diversion of public rights of way and access land);

(d) article 12 (access to works);

(e) article 14 (power to alter layout etc. of streets);

(f) article 15 (discharge of water);

(g) article 17 (authority to survey and investigate the land onshore);

(h) article 18 (compulsory acquisition of land);

(i) article 19 (compulsory acquisition of land: minerals)

(j) article 21 (compulsory acquisition of rights);

(k) article 22 (private rights);

(l) article 24 (statutory authority to override easements and other rights);

(m) article 25 (acquisition of subsoil only);

(n) article 27 (rights under or over streets);

(o) article 28 (temporary use of land for carrying out authorised project);

(p) article 29 (temporary use of land for maintaining authorised development);

(q) article 31 (statutory undertakers);

(r) article 36 (felling or lopping of trees and removal of hedgerows); and

(s) article 37 (trees subject to tree preservation orders).

(3) In the event that Dogger Bank withholds its consent pursuant to sub-paragraph (1) it will notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.

Commencement Information

I98 Sch. 9 Pt. 7 para. 4 in force at 3.8.2023, see art. 1

Co-operation during construction E+W+S

5.  The undertaker may not acquire any land interest or override any easement or other interest of Dogger Bank within the Dogger Bank limits of deviation without first obtaining the written consent of Dogger Bank.

Commencement Information

I99 Sch. 9 Pt. 7 para. 5 in force at 3.8.2023, see art. 1

6.—(1) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of Dogger Bank, that approval or consent shall be in writing (and subject to such reasonable terms and conditions as Dogger Bank may require), but shall not be unreasonably withheld.

(2) In the event that Dogger Bank does not respond in writing to a request for approval or consent within 28 days of receipt of such a request, Dogger Bank is deemed to have given its consent (without any terms or conditions).

Commencement Information

I100 Sch. 9 Pt. 7 para. 6 in force at 3.8.2023, see art. 1

7.  Insofar as the construction of the Hornsea Four authorised development is or may be undertaken concurrently with the Dogger Bank authorised development, the undertaker shall—

(a) co-operate with Dogger Bank with a view to ensuring—

(i) the co-ordination of construction programming and the carrying out of works; and

(ii) that access for the purposes of constructing the respective authorised developments is maintained for the undertaker and Dogger Bank and their respective contractors.

(b) use reasonable endeavours to avoid any conflict arising between the carrying out of the respective authorised developments.

Commencement Information

I101 Sch. 9 Pt. 7 para. 7 in force at 3.8.2023, see art. 1

8.  Insofar as the construction of the Hornsea Four authorised development gives rise to the need to modify any scheme secured by a requirement contained in Part 3 of Schedule 1 to the Dogger Bank Order, the undertaker shall provide such assistance as is reasonably necessary to support Dogger Bank in pursuing any such modification.

Commencement Information

I102 Sch. 9 Pt. 7 para. 8 in force at 3.8.2023, see art. 1

Protection of Dogger Bank E+W+S

9.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Dogger Bank a plan and, if reasonably required by Dogger Bank, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to Dogger Bank under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;

(d) the position of all Dogger Bank authorised development;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any of the Dogger Bank authorised development; and

(f) any intended maintenance regimes.

(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until Dogger Bank has given written approval of the plan so submitted.

(4) Any approval of Dogger Bank required under sub-paragraph (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7); and

(b) must not be unreasonably withheld.

(5) In relation to a work to which sub-paragraphs (1) and/or (2) apply, Dogger Bank may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing the Dogger Bank authorised development against interference or risk of damage or for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any of the Dogger Bank authorised development.

(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 (5), as amended from time to time by agreement between the undertaker and Dogger Bank and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) and/or (7) by Dogger Bank for the alteration or otherwise for the protection of the Dogger Bank authorised development, or for securing access to it, and Dogger Bank will be entitled to watch and inspect the execution of those works.

(7) Where Dogger Bank 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 Dogger Bank’s satisfaction prior to the commencement of any specified works for which protective works are required and Dogger Bank must give notice of its requirement for such protective works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) Nothing in this paragraph shall preclude 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 any specified 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.

(9) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Dogger Bank notice as soon as is reasonably practicable and a plan of those works and must—

(a) comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (10) at all times.

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that Dogger Bank 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 10.

Commencement Information

I103 Sch. 9 Pt. 7 para. 9 in force at 3.8.2023, see art. 1

Expenses E+W+S

10.  Save where otherwise agreed in writing between Dogger Bank and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to Dogger Bank within 30 days of receipt of an itemised invoice or claim from Dogger Bank all charges, costs and expenses reasonably incurred by Dogger Bank in, or in connection with this Part of this Schedule including without limitation—

(a) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(b) 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.

Commencement Information

I104 Sch. 9 Pt. 7 para. 10 in force at 3.8.2023, see art. 1

Indemnity E+W+S

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the onshore elements of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out the onshore elements of the authorised development (including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or property of Dogger Bank, or there is any interruption in any service provided, or in the supply of any goods, by Dogger Bank, or Dogger Bank becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from Dogger Bank the cost reasonably and properly incurred by Dogger Bank in making good such damage or restoring the supply; and

(b) indemnify Dogger Bank for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Dogger Bank, by reason or in consequence of any such damage or interruption or Dogger Bank becoming liable to any third party as aforesaid other than arising from any default by Dogger Bank.

(2) The fact that any act or thing may have been done by Dogger Bank on behalf of the undertaker or in accordance with a plan approved by Dogger Bank or in accordance with any requirement of Dogger Bank as a consequence of the onshore elements of the authorised development or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) where the undertaker 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 or as otherwise agreed between the undertaker and Dogger Bank.

(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of any damage or interruption to the extent that it is attributable to the neglect or default of Dogger Bank, its officers, servants, contractors or agents.

(4) Dogger Bank must give the undertaker reasonable notice of any such claim or demand and no settlement, admission of liability or compromise or demand must be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

(5) Dogger Bank must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under sub-paragraph (1) applies. If requested to do so by the undertaker, Dogger Bank must provide an explanation of how the claim has been minimised. The undertaker is only liable under sub-paragraph (1) for claims reasonably incurred by Dogger Bank.

(6) The undertaker must not commence construction (and must not permit the commencement of such construction) of any specified works until Dogger Bank is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker or its contractor has procured acceptable insurance (and provided evidence to Dogger Bank that it shall maintain such acceptable insurance for the construction period of the specified works from the proposed date of commencement of construction of the specified works) and Dogger Bank has confirmed the same in writing to the undertaker.

(7) In the event that the undertaker fails to comply with paragraph 11(5) of this Part of this Schedule, nothing in this Part of this Schedule shall prevent Dogger Bank from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Commencement Information

I105 Sch. 9 Pt. 7 para. 11 in force at 3.8.2023, see art. 1

Arbitration E+W+S

12.—(1) Any difference or dispute arising between the undertaker and Dogger Bank under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Dogger Bank, be referred to and settled in arbitration in accordance with the Rules at Schedule 14 of this Order, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.

(2) Should the Secretary of State fail to appoint an arbitrator under paragraph (1) within 14 days of the application, the referring party may refer to the Centre of Effective Dispute Resolution for appointment of an arbitrator.

(3) Article 39 (arbitration) shall not apply to any difference or dispute under any provisions of the Part of this Schedule.

Commencement Information

I106 Sch. 9 Pt. 7 para. 12 in force at 3.8.2023, see art. 1

Access E+W+S

13.  If in consequence of any specified works approved in accordance with this Part or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Dogger Bank to maintain or use the apparatus no less effectively than was possible before such obstruction.

Commencement Information

I107 Sch. 9 Pt. 7 para. 13 in force at 3.8.2023, see art. 1

PART 8 E+W+S FOR THE PROTECTION OF NEO ENERGY (SNS) LIMITED

Application E+W+S

1.  For the protection of the licensee from time to time of United Kingdom Petroleum Production Licence P.456 Block 48/2a, unless otherwise agreed in writing between the undertaker and the licensee the provisions of this Part of this Schedule shall have effect for so long as the licence shall remain in full force and effect.

Commencement Information

I108 Sch. 9 Pt. 8 para. 1 in force at 3.8.2023, see art. 1

2.  In the event that the licence is terminated and no longer has effect, the obligations on the undertaker in this Schedule shall no longer have effect in so far as they relate to the licensee’s works under the terminated licence(s).

Commencement Information

I109 Sch. 9 Pt. 8 para. 2 in force at 3.8.2023, see art. 1

Interpretation E+W+S

3.  In this Part of this Schedule—

“licence” means United Kingdom Petroleum Production Licence P.456 Block 48/2a;

“licensee” means the licensee from time to time of the licence;

“ministerial statement” means the written statement given by the Secretary of State for Energy and Climate Change to the UK Parliament regarding Crown Estate Leases for Offshore Renewables Projects on 12 July 2011, or any similar supplementary or replacement policy;

“the NEO Protective Provisions Plan” means the plan entitled NEO Protective Provisions Plan as contained with Appendix B of REP7-106 and certified as the NEO Protective Provisions Plan for the purposes of this Part of this Schedule;

“Restricted Area” means the spherical area of seabed having a radius of 3.14 nautical miles from UTM 383,265.00 East, UTM 5,981,086.00 North (International Spheroid, European Datum 1950, Zone 31, Central Meridian 3 degrees East) that point being the centre of the existing Babbage platform in Licence P.456 Block 48/2a operated by the licensee shown delineated blue on the NEO Protective Provisions Plan; and

“relevant activities” means all development activity relating to the carrying on of the undertaker’s and licensee’s businesses within, or adjacent to the restricted area, including (but not limited to) the preparation of development proposals, the submission of applications for statutory consents associated with those proposals and consultation in respect thereof, the acquisition of or application for new licence oil or gas blocks.

Commencement Information

I110 Sch. 9 Pt. 8 para. 3 in force at 3.8.2023, see art. 1

Restriction on authorised development E+W+S

4.  No wind turbine generator shall be erected in the restricted area, unless otherwise agreed in writing between the licensee and the undertaker.

Commencement Information

I111 Sch. 9 Pt. 8 para. 4 in force at 3.8.2023, see art. 1

Provision of information E+W+S

5.  Without prejudice to any other rights or obligations under this Part of this Schedule the licensee and the undertaker shall from time to time keep each other informed of relevant activities such that the licensee and the undertaker may seek to agree solutions to allow those activities to successfully co-exist as far as reasonably practicable or if later until completion of activities required under any statutory decommissioning plan required under the Petroleum Act 1998 in relation to the licence and taking place within the areas subject to the licence.

Commencement Information

I112 Sch. 9 Pt. 8 para. 5 in force at 3.8.2023, see art. 1

Compensation E+W+S

6.  Nothing in this Part of this Schedule shall affect any rights or obligations or assessment of compensation in accordance with the ministerial statement and any associated guidance.

Commencement Information

I113 Sch. 9 Pt. 8 para. 6 in force at 3.8.2023, see art. 1

PART 9 E+W+S FOR THE PROTECTION OF NORTHERN POWERGRID (YORKSHIRE) PLC

Application E+W+S

1.  For the protection of Northern Powergrid referred to in this Part of this Schedule the following provisions must, unless otherwise agreed in writing between the undertaker and the affected undertaking concerned, have effect.

Commencement Information

I114 Sch. 9 Pt. 9 para. 1 in force at 3.8.2023, see art. 1

2.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable Northern Powergrid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means electric lines or electrical plant (as defined in the 1989 Act), belonging to or maintained by Northern Powergrid;

“functions” includes powers and duties;

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land; and

“Northern Powergrid” means Northern Powergrid (Yorkshire) PLC (Company Number 04112320) whose registered address is Lloyds Court, 78 Grey Street, Newcastle upon Tyne, NE1 6AF.

Commencement Information

I115 Sch. 9 Pt. 9 para. 2 in force at 3.8.2023, see art. 1

Precedence of the 1991 Act in respect of apparatus in the streets E+W+S

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the Northern Powergrid are regulated by the provisions of Part 3 of the 1991 Act.

Commencement Information

I116 Sch. 9 Pt. 9 para. 3 in force at 3.8.2023, see art. 1

No acquisition etc. except by agreement E+W+S

4.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker shall not acquire any apparatus or override any easement or other interest of Northern Powergrid or acquire any land or other interest of Northern Powergrid or create any new rights over the same otherwise than by agreement of the relevant Northern Powergrid such agreement not to be unreasonably withheld or delayed (having regard to Northern Powergrid’s existing and future requirements for such land or interests).

(2) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker shall not interfere with any communications cables or equipment used by Northern Powergrid in relation to its apparatus or acquire or interfere with any rights or interests supporting the use, maintenance or renewal of such equipment otherwise than by agreement of Northern Powergrid (such agreement not to be unreasonably withheld or delayed).

Commencement Information

I117 Sch. 9 Pt. 9 para. 4 in force at 3.8.2023, see art. 1

Removal of apparatus E+W+S

5.—(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, that apparatus must not be removed under this Part of this Schedule and any right of Northern Powergrid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Northern Powergrid.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Northern Powergrid 56 days 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 Northern Powergrid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Northern Powergrid the necessary facilities and rights for the construction of alternative apparatus in other land of 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 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—

(a) the undertaker must in the first instance use reasonable endeavours to acquire all necessary land interests or rights as Northern Powergrid may reasonably require for the relocation and construction of alternative apparatus and must use reasonable endeavours to procure all necessary rights to access and maintain Northern Powergrid’s apparatus and alternative apparatus thereafter the terms of such access and maintenance to be agreed by Northern Powergrid (acting reasonably); and

(b) in the event the undertaker is not able to procure the necessary land interests or rights referred to in sub-paragraph (3)(a) Northern Powergrid 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 save that this obligation shall not extend to the requirement for Northern Powergrid to use its compulsory purchase powers to this end unless it elects to do so.

(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 Northern Powergrid and the undertaker or in default of agreement settled by arbitration in accordance with article 39 (arbitration).

(5) Northern Powergrid must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 39 (arbitration) and after the grant to Northern Powergrid 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 of this Schedule.

Commencement Information

I118 Sch. 9 Pt. 9 para. 5 in force at 3.8.2023, see art. 1

Facilities and rights for alternative apparatus E+W+S

6.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Northern Powergrid facilities and rights for the construction and maintenance in land of the undertaker 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 Northern Powergrid or in default of agreement settled by arbitration in accordance with article 39 (arbitration).

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

Commencement Information

I119 Sch. 9 Pt. 9 para. 6 in force at 3.8.2023, see art. 1

Retained apparatus E+W+S

7.—(1) Not less than 56 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are within 15 metres of, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5, the undertaker must submit to Northern Powergrid a plan, section and description of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by Northern Powergrid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Northern Powergrid is entitled to watch and inspect the execution of those works.

(3) Any requirements made by Northern Powergrid under sub-paragraph (2) must be made within a period of 49 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If Northern Powergrid in accordance with sub-paragraph (2) and 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 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5.

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 35 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to Northern Powergrid notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

Commencement Information

I120 Sch. 9 Pt. 9 para. 7 in force at 3.8.2023, see art. 1

8.—(1) Save where otherwise agreed in writing between Northern Powergrid and the undertaker and subject to the following provisions of this paragraph, the undertaker must repay to Northern Powergrid within 30 days of receipt of an itemised invoice or claim all charges costs and expenses reasonably incurred by Northern Powergrid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as authorised by this Order including without limitation—

(a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that Northern Powergrid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 7(3) all costs incurred as a result of such action;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(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 Schedule.

(2) If in accordance with the provisions of this Part of this Schedule—

(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

(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,

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 39 (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 Northern Powergrid by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs shall be borne by the undertaker.

(3) For the purposes of sub-paragraph (2)—

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

Commencement Information

I121 Sch. 9 Pt. 9 para. 8 in force at 3.8.2023, see art. 1

Expenses and costs E+W+S

9.—(1) Subject to sub-paragraphs (2) to (5), if by reason or in consequence of the construction of any such works referred to in this Part of this Schedule, or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, including without limitation works carried out by the undertaker or Northern Powergrid under this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Northern Powergrid, or there is any interruption in any service provided, or in the supply of any goods, by Northern Powergrid, or Northern Powergrid becomes liable to pay any amount to a third party the undertaker must—

(a) bear and pay the cost reasonably incurred by Northern Powergrid in making good such damage or restoring the supply; and

(b) indemnify Northern Powergrid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Northern Powergrid, by reason or in consequence of any such damage or interruption or Northern Powergrid becoming liable to any third party.

(2) The fact that any act or thing may have been done by Northern Powergrid on behalf of the undertaker or in accordance with a plan approved by Northern Powergrid or in accordance with any requirement of Northern Powergrid as a consequence of the authorised development or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (2) where the undertaker 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 materially accord with the approved plan or as otherwise agreed between the undertaker and Northern Powergrid.

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to—

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

(b) any authorised development and/or any other works authorised by this Part of this Schedule carried out by Northern Powergrid as an assignee, transferee or lessee of the undertaker with the benefit of the Order subject to the proviso that once such works become apparatus (“new apparatus”) any works yet to be executed by the undertaker and not falling within this paragraph 9(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 9 in respect of such new apparatus.

(4) Northern Powergrid must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(5) Northern Powergrid must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under sub-paragraph (1) applies. If request to do so by the undertaker, Northern Powergrid must provide an explanation of how the claim has been minimised. The undertaker is only liable under sub-paragraph (1) for claim reasonably incurred by Northern Powergrid.

Commencement Information

I122 Sch. 9 Pt. 9 para. 9 in force at 3.8.2023, see art. 1

10.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Northern Powergrid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I123 Sch. 9 Pt. 9 para. 10 in force at 3.8.2023, see art. 1

Co-operation E+W+S

11.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or Northern Powergrid requires the removal of apparatus under paragraph 5(2) or otherwise or Northern Powergrid makes requirements for the protection or alteration of apparatus under paragraph 7, the undertaker shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the need to ensure the safe and efficient operation of Northern Powergrid’s undertaking taking into account the undertaker’s desire for the efficient and economic execution of the authorised development and the undertaker and Northern Powergrid shall use best endeavours to co-operate with each other for those purposes.

Commencement Information

I124 Sch. 9 Pt. 9 para. 11 in force at 3.8.2023, see art. 1

Access E+W+S

12.  If in consequence of an agreement reached in accordance with paragraph 4(1) or the powers granted under this Order the access to any apparatus or alternative apparatus is materially obstructed, the undertaker shall provide such alternative means of access to such apparatus or alternative apparatus as will enable Northern Powergrid to maintain or use the said apparatus no less effectively than was possible before such obstruction.

Commencement Information

I125 Sch. 9 Pt. 9 para. 12 in force at 3.8.2023, see art. 1

Notices E+W+S

13.  The plans submitted to Northern Powergrid by the undertaker pursuant to this Part of the Schedule must be sent to Northern Powergrid at [e-mail] or such other address as Northern Powergrid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Commencement Information

I126 Sch. 9 Pt. 9 para. 13 in force at 3.8.2023, see art. 1

PART 10 E+W+S FOR THE PROTECTION OF THE KUMATAGE FIELD

Application E+W+S

1.  For the protection of the licensee from time to time of the licence in respect of the area comprising the Kumatage Field, previously under United Kingdom Petroleum Production Licence P.2426 and any licence granted to replace it in the 33^rd Offshore Licensing Round, unless otherwise provided for in this Schedule or otherwise agreed in writing between the licensee and the undertaker the provisions of this Part of this Schedule shall have effect for so long as the licence shall remain in full force and effect.

Commencement Information

I127 Sch. 9 Pt. 10 para. 1 in force at 3.8.2023, see art. 1

2.  In the event that—

(a) the no licence is granted under the North Sea Transition Authority 33^rd Offshore Licensing Round;

(b) any licence granted under the North Sea Transition Authority 33^rd Offshore Licensing Round is terminated and no longer has effect;

(c) before 1 January 2026, the licensee has not obtained the necessary consents;

(d) the licensee fails to serve notice on the undertaker as required by paragraph 5,

the obligations on the undertaker in this Part of this Schedule shall no longer have effect.

Commencement Information

I128 Sch. 9 Pt. 10 para. 2 in force at 3.8.2023, see art. 1

Interpretation E+W+S

3.  In this Part of this Schedule—

“Bridge protected area plan” means the plan entitled Bridge Petroleum: Kumatage Protective Provisions and certified as the Bridge protected area plan for the purposes of this Part of this Schedule;

“emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons, property or the environment;

“exclusion zones” means an area on, under or above the seabed within a distance of 500m of the outer edge of an installed platform or centre point of installed subsea infrastructure (excluding an installed pipeline) and an area of 200m either side of an installed pipeline, in each case forming part of the licensee’s works;

“licence” means any licence granted under the 33^rd licensing round by the North Sea Transition Authority for the area comprising the Kumatage Field, previously under United Kingdom Petroleum Production Licence P.2426;

“licensee” means the licensee from time to time of the licence;

“licensee’s works” means exploration, appraisal, development, production, maintenance, interventions and/or decommissioning activity in accordance with and pursuant to the licence;

“necessary consents” means regulatory approval from the North Sea Transition Agency (or any successor in function) and the Offshore Petroleum Regulator for Environment and Decommissioning (or any successor in function) for one or more appraisal well(s) and approval from the North Sea Transition Agency (or any successor in function) of a field development plan;

“pipeline route A” means the route coloured pale yellow on the Bridge protected area plan;

“pipeline route B” means the route coloured red on the Bridge protected area plan;

“primary lines of orientation” means the lines identified as the primary lines of orientation for wind turbine generators comprised in the authorised development running south east to north west on bearing 326.5 degrees as shown on the Bridge protected area plan;

“protected area” means the area of seabed with the coordinates below and shown shaded grey/blue on the Bridge protected area plan, excluding any relinquished area

X_UTM31N	Y_UTM31N	Latitude	Longitude	Lat_DMS	Long_DMS
369758.7442	6001005.102	54.14062859	1.006235389	54° 8′ 26.263″ N	1° 0′ 22.447″ E
370895.6849	6000130.985	54.13306382	1.024002362	54° 7′ 59.030″ N	1° 1′ 26.409″ E
371000.6638	6000185.22	54.13357734	1.025584881	54° 8′ 0.878″ N	1° 1′ 32.106″ E
371114.236	6000217.83	54.13389873	1.027308113	54° 8′ 2.035″ N	1° 1′ 38.309″ E
371232.0093	6000227.549	54.13401555	1.029105395	54° 8′ 2.456″ N	1° 1′ 44.779″ E
371349.3879	6000214.002	54.13392326	1.030906567	54° 8′ 2.124″ N	1° 1′ 51.264″ E
371461.8379	6000177.714	54.13362543	1.032642027	54° 8′ 1.052″ N	1° 1′ 57.511″ E
371564.9957	6000120.091	54.13313363	1.03424441	54° 7′ 59.281″ N	1° 2′ 3.280″ E
371654.8603	6000043.37	54.13246692	1.035651552	54° 7′ 56.881″ N	1° 2′ 8.346″ E
371727.9464	5999950.524	54.13165119	1.03680887	54° 7′ 53.944″ N	1° 2′ 12.512″ E
371780.158	5999848.371	54.13074663	1.037650827	54° 7′ 50.688″ N	1° 2′ 15.543″ E
371811.9723	5999738.148	54.12976449	1.03818421	54° 7′ 47.152″ N	1° 2′ 17.463″ E
371822.2261	5999623.885	54.12874068	1.038389537	54° 7′ 43.466″ N	1° 2′ 18.202″ E
371810.5448	5999509.758	54.12771263	1.03825933	54° 7′ 39.765″ N	1° 2′ 17.734″ E
371777.3552	5999399.942	54.12671793	1.037798369	54° 7′ 36.185″ N	1° 2′ 16.074″ E
371723.8708	5999298.449	54.12579294	1.03702353	54° 7′ 32.855″ N	1° 2′ 13.285″ E
371652.0469	5999208.992	54.12497147	1.035963155	54° 7′ 29.897″ N	1° 2′ 9.467″ E
371564.5095	5999134.84	54.12428355	1.03465602	54° 7′ 27.421″ N	1° 2′ 4.762″ E
371707.0735	5999034.998	54.12342232	1.036878551	54° 7′ 24.320″ N	1° 2′ 12.763″ E
371814.9826	5998898.439	54.12222259	1.03858664	54° 7′ 20.001″ N	1° 2′ 18.912″ E
371879.1565	5998736.653	54.12078534	1.039636569	54° 7′ 14.827″ N	1° 2′ 22.692″ E
371894.1948	5998563.256	54.11923155	1.03994004	54° 7′ 9.234″ N	1° 2′ 23.784″ E
371869.3359	5998424.266	54.11797689	1.039618876	54° 7′ 4.717″ N	1° 2′ 22.628″ E
371812.684	5998294.935	54.11680105	1.038807534	54° 7′ 0.484″ N	1° 2′ 19.707″ E
371727.3768	5998182.423	54.11576916	1.037550984	54° 6′ 56.769″ N	1° 2′ 15.184″ E
371618.1385	5998092.963	54.11493834	1.035918829	54° 6′ 53.778″ N	1° 2′ 9.308″ E
371517.1978	5998041.233	54.11444847	1.034397558	54° 6′ 52.014″ N	1° 2′ 3.831″ E
371408.3254	5998009.424	54.11413554	1.032746584	54° 6′ 50.888″ N	1° 1′ 57.888″ E
371295.412	5997998.673	54.11401073	1.031024889	54° 6′ 50.439″ N	1° 1′ 51.690″ E
371182.4928	5998009.363	54.1140785	1.029293977	54° 6′ 50.683″ N	1° 1′ 45.458″ E
371073.6033	5998041.114	54.11433642	1.027615684	54° 6′ 51.611″ N	1° 1′ 39.416″ E
370972.635	5998092.79	54.11477528	1.026049969	54° 6′ 53.191″ N	1° 1′ 33.780″ E
370883.1961	5998162.545	54.1153794	1.024652768	54° 6′ 55.366″ N	1° 1′ 28.750″ E
370808.4831	5998247.885	54.11612721	1.023474009	54° 6′ 58.058″ N	1° 1′ 24.506″ E
370748.8624	5998350.778	54.11703645	1.022518453	54° 7′ 1.331″ N	1° 1′ 21.066″ E
370710.7056	5998463.407	54.11803854	1.021886867	54° 7′ 4.939″ N	1° 1′ 18.793″ E
370695.5115	5998581.35	54.11909413	1.02160408	54° 7′ 8.739″ N	1° 1′ 17.775″ E
370703.8771	5998699.973	54.12016175	1.021681229	54° 7′ 12.582″ N	1° 1′ 18.052″ E
370735.4737	5998814.617	54.12119946	1.02211531	54° 7′ 16.318″ N	1° 1′ 19.615″ E
370789.0601	5998920.777	54.1221665	1.022889294	54° 7′ 19.799″ N	1° 1′ 22.401″ E
370862.5312	5999014.283	54.12302486	1.023972795	54° 7′ 22.889″ N	1° 1′ 26.302″ E
370953.001	5999091.462	54.12374082	1.02532326	54° 7′ 25.467″ N	1° 1′ 31.164″ E
370856.0517	5999152.369	54.12426358	1.023814676	54° 7′ 27.349″ N	1° 1′ 25.733″ E
370772.4368	5999230.583	54.12494512	1.022502564	54° 7′ 29.802″ N	1° 1′ 21.009″ E
370705.2009	5999323.255	54.12576063	1.021434697	54° 7′ 32.738″ N	1° 1′ 17.165″ E
370656.7919	5999427.012	54.12668043	1.02064996	54° 7′ 36.050″ N	1° 1′ 14.340″ E
369290.5479	5999425.493	54.12632131	0.999756873	54° 7′ 34.757″ N	0° 59′ 59.125″ E
369409.1471	5999825.625	54.12994553	1.00139754	54° 7′ 47.804″ N	1° 0′ 5.031″ E
370629.9711	5999826.982	54.13026636	1.02006844	54° 7′ 48.959″ N	1° 1′ 12.246″ E
369634.1373	6000584.701	54.13682085	1.004510756	54° 8′ 12.555″ N	1° 0′ 16.239″ E
369758.7442	6001005.102	54.14062859	1.006235389	54° 8′ 26.263″ N	1° 0′ 22.447″ E

“offshore wind infrastructure” means all infrastructure permitted by this Order excluding offshore wind activities and the overhanging of a wind turbine generator blade;

“offshore wind activities” means investigation survey or other activity relating to the evaluation of development construction operation and maintenance and/or decommissioning of the authorised development and shall include the use of a jack-up or other vessel;

“relinquished area” means any part of the protected area that is relinquished by the licensee pursuant to the licence or otherwise removed from the scope of the licence, but which shall not include the exclusion zones; and

“remaining overlap area” means the area of seabed with the coordinates below and shown cross-hatched on the Bridge protected area plan

ETRS89_X	ETRS89_Y	Latitude	Longitude	DDLat	DDLong
369290.5479	5999425.493	54° 7′ 34.757″ N	0° 59′ 59.125″ E	54.12632131	0.999756873
370656.7919	5999427.012	54° 7′ 36.050″ N	1° 1′ 14.340″ E	54.12668043	1.02064996
370705.2009	5999323.255	54° 7′ 32.738″ N	1° 1′ 17.165″ E	54.12576063	1.021434697
370772.4368	5999230.583	54° 7′ 29.802″ N	1° 1′ 21.009″ E	54.12494512	1.022502564
370856.0517	5999152.369	54° 7′ 27.349″ N	1° 1′ 25.733″ E	54.12426358	1.023814676
370953.001	5999091.462	54° 7′ 25.467″ N	1° 1′ 31.164″ E	54.12374082	1.02532326
370862.5312	5999014.283	54° 7′ 22.889″ N	1° 1′ 26.302″ E	54.12302486	1.023972795
370789.0601	5998920.777	54° 7′ 19.799″ N	1° 1′ 22.401″ E	54.12216649	1.022889294
370735.4737	5998814.617	54° 7′ 16.318″ N	1° 1′ 19.615″ E	54.12119946	1.02211531
370703.8771	5998699.973	54° 7′ 12.582″ N	1° 1′ 18.052″ E	54.12016175	1.021681229
370695.5115	5998581.35	54° 7′ 8.739″ N	1° 1′ 17.775″ E	54.11909413	1.02160408
370710.7056	5998463.407	54° 7′ 4.939″ N	1° 1′ 18.793″ E	54.11803854	1.021886867
370748.8624	5998350.777	54° 7′ 1.331″ N	1° 1′ 21.066″ E	54.11703645	1.022518453
370808.4831	5998247.885	54° 6′ 58.058″ N	1° 1′ 24.506″ E	54.11612721	1.023474009
370883.1961	5998162.545	54° 6′ 55.366″ N	1° 1′ 28.750″ E	54.1153794	1.024652768
370972.635	5998092.79	54° 6′ 53.191″ N	1° 1′ 33.780″ E	54.11477528	1.026049969
371073.6033	5998041.114	54° 6′ 51.611″ N	1° 1′ 39.416″ E	54.11433642	1.027615684
371182.4928	5998009.363	54° 6′ 50.683″ N	1° 1′ 45.458″ E	54.1140785	1.029293977
371295.412	5997998.672	54° 6′ 50.439″ N	1° 1′ 51.690″ E	54.11401073	1.031024889
371408.3254	5998009.424	54° 6′ 50.888″ N	1° 1′ 57.888″ E	54.11413554	1.032746584
371517.1978	5998041.233	54° 6′ 52.014″ N	1° 2′ 3.831″ E	54.11444847	1.034397558
371618.1385	5998092.963	54° 6′ 53.778″ N	1° 2′ 9.308″ E	54.11493834	1.035918829
371727.3768	5998182.423	54° 6′ 56.769″ N	1° 2′ 15.184″ E	54.11576916	1.037550984
371812.684	5998294.934	54° 7′ 0.484″ N	1° 2′ 19.707″ E	54.11680105	1.038807534
371869.3359	5998424.266	54° 7′ 4.717″ N	1° 2′ 22.628″ E	54.11797689	1.039618876
371894.1948	5998563.256	54° 7′ 9.234″ N	1° 2′ 23.784″ E	54.11923155	1.03994004
371879.1565	5998736.653	54° 7′ 14.827″ N	1° 2′ 22.692″ E	54.12078534	1.039636569
371814.9826	5998898.439	54° 7′ 20.001″ N	1° 2′ 18.912″ E	54.12222259	1.03858664
371707.0735	5999034.998	54° 7′ 24.320″ N	1° 2′ 12.763″ E	54.12342232	1.036878551
371564.5095	5999134.84	54° 7′ 27.421″ N	1° 2′ 4.762″ E	54.12428355	1.03465602
371652.0469	5999208.992	54° 7′ 29.897″ N	1° 2′ 9.467″ E	54.12497147	1.035963155
371723.8708	5999298.449	54° 7′ 32.855″ N	1° 2′ 13.285″ E	54.12579294	1.03702353
371777.3552	5999399.942	54° 7′ 36.185″ N	1° 2′ 16.074″ E	54.12671793	1.037798369
371810.5448	5999509.758	54° 7′ 39.765″ N	1° 2′ 17.734″ E	54.12771263	1.03825933
371822.2261	5999623.885	54° 7′ 43.466″ N	1° 2′ 18.202″ E	54.12874068	1.038389537
371811.9723	5999738.148	54° 7′ 47.152″ N	1° 2′ 17.463″ E	54.12976449	1.03818421
371780.158	5999848.371	54° 7′ 50.688″ N	1° 2′ 15.543″ E	54.13074663	1.037650827
371727.9464	5999950.524	54° 7′ 53.944″ N	1° 2′ 12.512″ E	54.13165119	1.03680887
371654.8603	6000043.37	54° 7′ 56.881″ N	1° 2′ 8.346″ E	54.13246692	1.035651552
371564.9957	6000120.091	54° 7′ 59.281″ N	1° 2′ 3.280″ E	54.13313363	1.03424441
371461.8379	6000177.714	54° 8′ 1.052″ N	1° 1′ 57.511″ E	54.13362543	1.032642027
371349.3879	6000214.002	54° 8′ 2.124″ N	1° 1′ 51.264″ E	54.13392326	1.030906567
371232.0093	6000227.548	54° 8′ 2.456″ N	1° 1′ 44.779″ E	54.13401555	1.029105395
371114.236	6000217.83	54° 8′ 2.035″ N	1° 1′ 38.309″ E	54.13389873	1.027308113
371000.6638	6000185.22	54° 8′ 0.878″ N	1° 1′ 32.106″ E	54.13357734	1.025584881
370895.6849	6000130.985	54° 7′ 59.030″ N	1° 1′ 26.409″ E	54.13306382	1.024002362
369758.744	6001005.102	54° 8′ 26.263″ N	1° 0′ 22.447″ E	54.14062859	1.006235386
370188.1134	6002453.716	54° 9′ 13.497″ N	1° 0′ 43.850″ E	54.15374908	1.012180474
369052.38	6003839.014	54° 9′ 57.254″ N	0° 59′ 39.116″ E	54.1659038	0.994198772
374775.9162	6003680.049	54° 9′ 57.253″ N	1° 4′ 54.768″ E	54.1659037	1.081880049
374549.6554	5995336.516	54° 5′ 27.244″ N	1° 4′ 54.777″ E	54.09090122	1.081882594
373037.8605	5995377.85	54° 5′ 27.247″ N	1° 3′ 31.553″ E	54.09090193	1.058764698
372386.8054	5996013.946	54° 5′ 47.237″ N	1° 2′ 54.774″ E	54.09645475	1.048548266
372395.3332	5996323.166	54° 5′ 57.244″ N	1° 2′ 54.773″ E	54.09923444	1.048548168
372060.5767	5996332.517	54° 5′ 57.247″ N	1° 2′ 36.341″ E	54.09923534	1.043428091
369201.7237	5999125.817	54° 7′ 24.985″ N	0° 59′ 54.702″ E	54.12360695	0.998528288
369409.1471	5999825.625	54° 7′ 47.804″ N	1° 0′ 5.031″ E	54.12994553	1.00139754
369634.1371	6000584.702	54° 8′ 12.555″ N	1° 0′ 16.239″ E	54.13682085	1.004510753
370629.9711	5999826.982	54° 7′ 48.959″ N	1° 1′ 12.246″ E	54.13026636	1.02006844

Commencement Information

I129 Sch. 9 Pt. 10 para. 3 in force at 3.8.2023, see art. 1

Protected area E+W+S

4.—(1) Subject to paragraph 7, no offshore wind infrastructure shall be constructed within the protected area.

(2) The undertaker may perform offshore wind activities in the protected area provided that—

(a) the undertaker provides advance written notice of its activities in the protected area as soon as reasonably practicable and in any event no later than six months prior to the scheduled commencement of such activities and consent is obtained from the licensee, such consent not to be unreasonably withheld;

(b) the undertaker’s notice must describe the nature, extent, anticipated start date and duration of the activities;

(c) following commencement of the offshore wind activities in the protected area, the undertaker must provide regular updates (no less frequently than every fourteen days) to the licensee throughout the duration of the offshore wind activities in the protected area as to their progress; and

(d) within 24 hours of the completion of the offshore wind activities, the undertaker provides notice to the licensee that the activities have been completed and the protected area has been vacated.

(3) The requirement for advance notice in sub-paragraph (2)(a) above shall not apply to any offshore wind activities which are emergency works, in which case the undertaker must provide notice as soon as reasonably practicable after commencement of the activities.

(4) Following completion of the relevant offshore wind activities the undertaker shall use reasonable endeavours not to restrict, delay, hinder or prevent in any way the licensee’s or its agents’ ability to access safely the protected area and to carry out any drilling, development, production or decommissioning activities that the licensee, acting as a reasonable and prudent operator deems necessary from time to time.

Commencement Information

I130 Sch. 9 Pt. 10 para. 4 in force at 3.8.2023, see art. 1

5.  No later than 6 months after the coming into force of this Order, the licensee shall notify the undertaker of its proposed location of its pipeline, such location being either pipeline route A or pipeline route B. From the date the undertaker receives the licensee’s notification, the protected area shall include either pipeline route A or pipeline route B (as elected by the licensee).

Commencement Information

I131 Sch. 9 Pt. 10 para. 5 in force at 3.8.2023, see art. 1

Line of orientation E+W+S

6.  The licensee shall not carry out, nor procure the carrying out of, the licensee’s works in any way that would prevent the undertaker from constructing and maintaining the wind turbine generators comprised in the authorised development in a layout consistent with the primary lines of orientation.

Commencement Information

I132 Sch. 9 Pt. 10 para. 6 in force at 3.8.2023, see art. 1

Crossing and proximity E+W+S

7.  The undertaker and the licensee shall use reasonable endeavours to enter into a crossing and/or proximity agreement on standard UK oil and gas industry terms in relation to the licensee’s works and the authorised development in relation to the protected area and the remaining overlap area, such agreement to be entered as soon as reasonably practicable after the coming into force of this Order.

Commencement Information

I133 Sch. 9 Pt. 10 para. 7 in force at 3.8.2023, see art. 1

PART 11 E+W+S FOR THE PROTECTION OF HARBOUR ENERGY LIMITED, PERENCO UK LIMITED, PREMIER OIL E&P UK EU LIMITED, DANA PETROLEUM (E&P) LIMITED AND DANA PETROLEUM LIMITED

Application E+W+S

1.  For the protection of the licensee from time to time of United Kingdom Petroleum Production Licences P686 and P380, unless otherwise agreed in writing between the undertaker and the licensee the provisions of this Part of this Schedule shall have effect for so long as the licence shall remain in full force and effect.

Commencement Information

I134 Sch. 9 Pt. 11 para. 1 in force at 3.8.2023, see art. 1

Interpretation E+W+S

2.  In this Part of this Schedule—

“additional costs” means any costs incurred by the licensee in carrying out decommissioning of the Johnston Assets which would not have been incurred had such decommissioning works been carried out prior to commencement of the undertaker’s works, and relating to any of the following—

(a)

the direct cost of any rig brought into the marine corridor for the purposes of undertaking decommissioning of the six producer wells comprised in the Johnston Assets, to the extent such cost is directly related to the rig being required for a longer period as a direct result of the presence of the undertaker’s works. For the avoidance of doubt the direct cost of any rig excludes any and all ancillary cost associated with the use of the rig;

(b)

impaired helicopter operations during the period from the commencement of the licensee’s works to the completion of the licensee’s works, to the extent such operations can be reasonably demonstrated to have been necessary, to have resulted in abandonment of a planned flight and resulted in a subsequent delay to operational activity related to the Johnston Assets;

(c)

only to the extent not included in the calculation of costs under sub-paragraphs (a) or (b). any use of vessels in substitution for impaired helicopter flights subject to the use of vessels being approved in advance by the undertaker;

but in each case only to the extent that—

(i)

such costs have been reasonably and properly incurred by the licensee as a direct result of the presence of the undertaker’s works;

(ii)

the licensee provides evidence of costs incurred in a form and manner to the reasonable satisfaction of the undertaker;

(iii)

the licensee and each relevant contractor, sub-contractor or agent have at all times used best endeavours to minimise and mitigate the costs; and

(iv)

such costs were not incurred directly or indirectly in the decommissioning of the exploration well comprised in the Johnston Assets.

“aviation corridor” means an 1400m aviation corridor of clear airspace measured tip to tip from any wind turbine generator shown coloured blue and annotated and shown as the aviation corridor (along the route of the Johnston pipeline) on the Johnston protective provisions plan;

“block” means a block of the United Kingdom Continental Shelf designated as such on the map deposited at the principal office of the North Sea Transition Authority;

“coexistence and proximity agreement” means an agreement entered on reasonable terms between the undertaker and the licensee in respect of the undertaker’s works and licensee’s works to reconcile and protect the interests of the parties as are known at the time to secure the implementation of the undertaker’s works and the licensee’s works;

“licences” means United Kingdom Petroleum Production Licences P686 block 43/27a and P380 block 43/26a;

“licensee” means the licensee from time to time of the licence;

“licensee’s works” means the decommissioning of the Johnston Field in accordance with the Johnston Decommissioning Programme (Rev B01, March 2022) as approved by the Offshore Petroleum Regulator for Environment and Decommissioning and as amended from time to time, but excluding any post-decommissioning monitoring and evaluation;

“marine corridor” means a 1000m corridor measured from centre to centre from any wind turbine generator (along the route of the Johnston pipeline);

“ministerial statement” means the written statement given by the Secretary of State for Energy and Climate Change to the UK Parliament regarding Crown Estate Leases for Offshore Renewables Projects on 12 July 2011, or any similar supplementary or replacement policy;

“Johnston Assets” means any and all facilities and infrastructure owned, operated, leased and/or otherwise contracted to the licensee from time to time for the purposes of the licences including but not limited to one exploration well, six producer wells, four pipelines and 15 umbilicals located in the Johnston Field;

“Johnston Field” means the area to which the licensee’s rights granted by the licences relate, being at the date hereof, that area shown on the Johnston protective provisions plan;

“the Johnston protective provisions plan” means the plan entitled Johnston protective provisions plan (Harbour) and certified as the Johnston protective provisions plan for the purposes of this Part of this Schedule;

“OPRED notice” means a letter or notice from the Offshore Petroleum Regulator for Environment and Decommissioning (“OPRED”) confirming the acceptance of the close-out report submitted by or on behalf of the relevant licensee indicating that OPRED is satisfied that the permanent decommissioning of the Johnston Assets has been completed;

“relevant activities” means all development activity relating to the carrying on of the undertaker’s and licensee’s businesses within, or adjacent to the aviation corridor or a WTG exclusion zone, including (but not limited to) the preparation of development proposals, the submission of applications for statutory consents associated with those proposals and consultation in respect thereof, the acquisition of or application for new licence oil or gas blocks;

“undertaker’s works” means the offshore works permitted by this Order;

“WTG exclusion zone” means an area of 1,600m radius of clear airspace measured from the centre of each of the Johnston production wellheads and coloured yellow and annotated and shown as a WTG exclusion zone on the Johnston protective provisions plan.

Commencement Information

I135 Sch. 9 Pt. 11 para. 2 in force at 3.8.2023, see art. 1

Restriction on authorised development E+W+S

3.  Prior to the completion of the licensee’s works, no wind turbine generator shall be erected in the marine corridor, the aviation corridor, or in any WTG exclusion zone, unless otherwise agreed in writing between the licensee and the undertaker.

Commencement Information

I136 Sch. 9 Pt. 11 para. 3 in force at 3.8.2023, see art. 1

4.  In the event the licensee’s works commence prior to the undertaker’s works, the undertaker must not build, construct, erect or lay any temporary infrastructure and/or carry out any activities within the marine corridor, the aviation corridor, or in any WTG exclusion zone that would interfere with the licensee’s works causing a delay.

Commencement Information

I137 Sch. 9 Pt. 11 para. 4 in force at 3.8.2023, see art. 1

Coexistence and proximity agreement E+W+S

5.  If, at any time the undertaker plans to undertake the undertaker’s works and/or any other work which is within five hundred metres (500m) of the Johnston Assets, the undertaker shall notify the licensee and the undertaker and the licensee must, unless agreed otherwise, acting reasonably, agree and enter into a crossing and proximity agreement as soon as reasonably practicable.

Commencement Information

I138 Sch. 9 Pt. 11 para. 5 in force at 3.8.2023, see art. 1

Provision of information E+W+S

6.  Without prejudice to any other rights or obligations under this Part of this Schedule the licensee and the undertaker shall from time to time keep each other informed of relevant activities such that the licensee and the undertaker may seek to agree solutions to allow those activities to successfully co-exist as far as reasonably practicable until completion of activities required under any statutory decommissioning plan required under the Petroleum Act 1998 in relation to the licence and taking place within the areas subject to the licence.

Commencement Information

I139 Sch. 9 Pt. 11 para. 6 in force at 3.8.2023, see art. 1

Compensation E+W+S

7.  Subject to paragraph 8, the undertaker shall pay any additional costs to the licensee within three months of receipt of the OPRED notice.

Commencement Information

I140 Sch. 9 Pt. 11 para. 7 in force at 3.8.2023, see art. 1

8.  Nothing in this Part of this Schedule shall affect any rights or obligations or assessment of compensation in accordance with the ministerial statement and the associated guidance.

Commencement Information

I141 Sch. 9 Pt. 11 para. 8 in force at 3.8.2023, see art. 1

Arbitration E+W+S

9.  Any difference arising between the undertaker the licensee under this Part shall be referred to and settled by arbitration under article 39 (arbitration).

Commencement Information

I142 Sch. 9 Pt. 11 para. 9 in force at 3.8.2023, see art. 1

(1)

1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c. 45), and was further amended by section 76 of the Utilities Act 2000 (c. 27).

(2)

1991 c. 56.

(3)

1993 c. 43.

(4)

2006 c. 46.

(5)

1991 c. 59.

(6)

S.I. 2015/318.