14. For the protection of the utility undertaker the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker.
15. In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the reasonable satisfaction of the utility undertaker to enable the utility undertaker 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 the utility undertaker for the purpose of gas supply and include 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;
“in” in a context referring to works, apparatus or alternative apparatus in land includes a reference to such works, apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” include the ability and right to do any of the following: construct, use, repair, alter, inspect, renew or remove;
“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 the works to be executed; and
“utility undertaker” means Northern Gas Networks Limited, a gas transporter within the meaning of Part 1 of the Gas Act 1986(1).
16. Except for paragraphs 17 (apparatus of utility undertaker in stopped up streets), 21 (retained apparatus: protection), 22 (expenses) and 23 (indemnity), this Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 of the 1991 Act.
17.—(1) Where any street is stopped up under article 12 (permanent stopping up and restriction of use of streets) and the utility undertaker has apparatus which is in that street or accessed via that street, the utility undertaker has the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it prior to the stopping up of any such street.
(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 11 (temporary stopping up and restriction of use of streets), the utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway, subject always to the undertaker’s unimpeded ability to carry out the authorised development.
18. Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker must not acquire any apparatus or override any easement or other interest of the utility undertaker otherwise than by agreement.
19.—(1) If the undertaker acquires any interest in land in which the utility undertaker’s apparatus is placed, that apparatus must not be removed and any right of the utility 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 utility undertaker.
(2) If, for the purpose of executing any works, the undertaker requires the removal or diversion of any apparatus, it must give to the utility undertaker 90 days’ advance written notice of that requirement, together with a plan of the works and the removal or diversion works proposed, the proposed position of the alternative apparatus, and the proposed timeline for the works. The utility undertaker must reasonably approve these details. The undertaker must afford to the utility undertaker to its reasonable satisfaction the necessary facilities and rights for
(a)the construction of alternative apparatus in other land; and
(b)the maintenance of that apparatus,
and the utility undertaker must commence the planning for the removal or diversion works within 90 days of receiving notice under this sub-paragraph and must complete the works using its reasonable endeavours to meet the undertaker’s proposed timeline, and in any event without undue delay, in accordance with the details provided by the undertaker under this sub-paragraph or as otherwise reasonably agreed by the undertaker.
(3) If, in consequence of the works carried out by the undertaker, the utility undertaker reasonably needs to remove or divert any of its apparatus, it must without undue delay give the undertaker written notice of that requirement, together with a plan of the work proposed, the proposed position of the alternative apparatus and the proposed timeline for the works. The undertaker must reasonably approve these details and must afford to the utility undertaker to its reasonable satisfaction the necessary facilities and rights for—
(a)the construction of alternative apparatus; and
(b)the maintenance of that apparatus,
and the utility undertaker must commence the planning for the removal or diversion works within 90 days of the details of its proposed works being approved by the undertaker under this sub-paragraph, and must complete the works without undue delay and in accordance with the approved details.
(4) If the utility undertaker fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal or diversion works under sub-paragraph (2) within 70 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved, provided that the undertaker has first taken all reasonable steps to contact the relevant representatives of the utility undertaker in order to elicit such a response.
(5) 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-paragraphs (2) and (3), the utility undertaker 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, but this obligation does not require the utility undertaker to use its compulsory purchase powers unless it elects to so do.
(6) Paragraphs 22 (expenses) and 23 (indemnity) of this Part of this Schedule apply to removal or diversion works under this paragraph, but the utility undertaker must provide to the undertaker for its approval a cost estimate for works that the utility undertaker proposes to carry out, and the undertaker is not liable for any costs under this paragraph that are not in accordance with an estimate that it has approved.
20.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to the utility undertaker facilities and rights for the construction and maintenance in the undertaker’s land 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 utility undertaker and must be no less favourable on the whole to the utility undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed, unless otherwise reasonably agreed.
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus are less favourable on the whole to the utility undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed, then the undertaker and the utility undertaker must agree appropriate compensation.
(3) If the amount of compensation cannot be agreed, then either the undertaker or the utility undertaker may refer the matter to arbitration, and the arbitrator must make such provision for the payment of compensation by the undertaker to the utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
21.—(1) Not less than 56 days before commencing the execution of any works that will or may affect any apparatus, the removal or diversion of which has not been required by the undertaker under paragraph 19(2) or otherwise, the undertaker must submit to the utility undertaker in question a plan showing the works and the apparatus.
(2) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the utility undertaker under sub-paragraph (1) must be detailed including a material statement and describing—
(a)the exact position of the works;
(b)the level at which the works 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; and
(e)by way of detailed drawings, every alteration proposed to be made to or close to any apparatus.
(3) The undertaker must not commence the construction or renewal of any works to which sub-paragraph (1) or (2) applies until the utility undertaker has given written approval of the plan submitted under sub-paragraph (1).
(4) Any approval of the utility undertaker required under sub-paragraph (3)—
(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7);
(b)must not be unreasonably withheld or delayed; and
(c)is deemed to be granted after the expiry of 70 days from receipt by the utility undertaker of the plan if no material response to the request for approval has been provided within the initial 56 day period, provided that the undertaker must have first taken all reasonable steps to contact the relevant representatives of the utility undertaker in order to elicit such a response. In any event no work is to proceed without the utility undertaker’s consent (not to be unreasonably withheld or delayed).
(5) In relation to a work to which sub-paragraph (2) applies, the utility undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Works executed under the Order to which this paragraph applies must be executed only in accordance with the relevant plan, notified under sub-paragraph (1) or approved (with conditions, if applicable) under sub-paragraph (4), as amended from time to time by agreement between the undertaker and the utility undertaker. The utility undertaker is entitled to watch and inspect the execution of those works.
(7) Where the utility undertaker requires any protective works (whether of a temporary or permanent nature) or subsidence monitoring to be carried out either by itself or by the undertaker, the utility undertaker must give the undertaker notice of such requirement in its approval under sub-paragraph (3), and—
(a)such protective works must be carried out to the utility undertaker’s reasonable satisfaction prior to the carrying out of the relevant part of the works;
(b)ground subsidence monitoring must be carried out in accordance with a scheme approved by the utility undertaker (such approval not to be unreasonably withheld or delayed), which must set out—
(i)the apparatus which is to be subject to such monitoring;
(ii)the extent of land to be monitored;
(iii)the manner in which ground levels are to be monitored;
(iv)the timescales of any monitoring activities; and
(v)the extent of ground subsidence which, if exceeded, is to require the undertaker to submit for the utility undertaker’s approval a ground subsidence mitigation scheme in respect of such subsidence;
(c)if a subsidence mitigation scheme is required, it must be carried out as approved (such approval not to be unreasonably withheld or delayed).
(8) Nothing in this paragraph precludes 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 the relevant works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(9) The undertaker is not required to comply with sub-paragraph (1) or (2) where it needs to carry out emergency works as defined in the 1991 Act, but in that case it must give to the utility undertaker notice as soon as is reasonably practicable and a plan of those works to comply with the other requirements in this paragraph in so far as is reasonably practicable in the circumstances, provided that the undertaker always complies with sub-paragraph (10).
(10) At all times when carrying out any works authorised under this Order, the undertaker must comply with the utility undertaker’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of Northern Gas Networks, Gas pipelines and associated installation requirements for third parties NGN/SPSSW22” and Health and Safety Executive guidance document “HS(G)47 Avoiding Danger from underground services”.
22.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to the utility undertaker on demand all charges, costs and expenses reasonably incurred by the utility undertaker in, or in connection with, the inspection, removal or diversion, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus which may be reasonably required and necessary in consequence of the execution of the works, 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 the utility undertaker elects to use compulsory acquisition powers to acquire any necessary rights under paragraph 19(7), all costs reasonably 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;
(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 works referred to in this Part of this Schedule; and
(g)any statutory loss of supply payments under the ‘Guaranteed Standards of Service’ regime that the utility undertaker may incur in consequence of the works, but in the event that such payments are likely to become payable, the utility undertaker must give the undertaker notice as soon as reasonably practicable of the payments and their likely amount.
(2) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part, and in any event to minimise, any expenses capable of being claimed under sub-paragraph (1). If requested to do so by the undertaker, the utility undertaker is to provide an explanation of how the claimed expenses have been minimised. The undertaker is only liable to pay expenses that have been reasonably incurred.
(3) 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 and which is not re-used as part of the alternative apparatus, that value being calculated after removal, net of disposal costs.
(4) If in accordance with the provisions of this Part of this Schedule—
(a)apparatus of greater capacity or of greater dimensions is placed in substitution for existing apparatus; 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,
then, if this incurs greater expense than would have been incurred by a like-for-like (or as close as practicable to like-for-like) replacement at the same depth, the undertaker is not liable for this additional expense.
(5) For the purposes of sub-paragraph (4) 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.
23.—(1) Subject to sub-paragraphs (2), (3) and (4), if by reason or in consequence of the construction of any works carried out under this Part of this Schedule or in consequence of the construction, use, maintenance of the works by or on behalf of the undertaker or failure of any of the works 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, there is subsidence resulting from any of the works, or 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 the utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the utility undertaker, or the utility undertaker becomes liable to pay any amount to any third party, the undertaker must—
(a)bear and pay on demand the cost reasonably incurred by the utility undertaker in making good such damage or restoring the supply; and
(b)indemnify the utility undertaker for any other expenses, loss (other than consequential losses), demands, proceedings, damages, claims, penalties or costs (except to the extent that those liabilities are due to the sole, partial or complete act, neglect or default of the utility undertaker) incurred by or recovered from the utility undertaker.
(2) The fact that any act or thing may have been done by the utility undertaker on behalf of the undertaker or in accordance with a plan approved by the utility undertaker or in accordance with any requirement of the utility undertaker or under its supervision does not (subject to sub-paragraph (4)), excuse the undertaker from liability under the provisions of sub-paragraph (1).
(3) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part, and in any event to minimise, any costs, expenses, losses, demands, penalties etc. capable of being claimed under sub-paragraph (1). If requested to do so by the undertaker, the utility undertaker must provide an explanation of how the claimed expenses have been minimised. The undertaker is only liable to pay expenses that have been reasonably incurred.
(4) 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 neglect or default of the utility undertaker, its officers, servants, contractors or agents.
(5) The utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without first consulting the undertaker and considering its promptly made representations to the extent practicable.
24. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and the utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker.
25. Where in consequence of the proposed construction of any of the authorised development the undertaker or the utility undertaker requires the removal of apparatus in accordance with the provisions of this Part of this Schedule, the undertaker must use its best endeavours to co-ordinate the execution of the works to or for the benefit of the apparatus in the interests of safety and the efficient and economic execution of such works, taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking, and the utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.
26. If in consequence of an agreement reached in accordance with paragraph 18 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 the utility undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.
27. Any difference or dispute arising between the undertaker and the utility undertaker under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and that utility undertaker, be determined by arbitration in accordance with article 40 (arbitration).
28. Nothing in this schedule requires the undertaker to carry out works, or requires the undertaker to enable the utility undertaker to carry out works, that are not authorised by this Order. The utility undertaker must not request any alteration, diversion, protective work or any other work which is not authorised to be carried out under this Order (but for the avoidance of doubt, it may elect to carry out such works itself under any other planning permission available to it).
1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c. 45) and was further amended by sections 3(2) and 76 of, and paragraphs 1 and 4 of schedule 6, and schedule 8 to, the Utilities Act 2000 (c. 27), sections 149(1) and (5) and 197(9) of, and part 1 of schedule 23 to, the Energy Act 2004 (c. 20) and S.I. 2011/2704.