28.—(1) The following provisions of this Part of this Schedule apply for the protection of the Agency unless otherwise agreed in writing between the Agency and the undertaker.E+W+S
(2) In this Part of this Schedule—
“the Agency” means the Environment Agency;
“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 or embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring but excludes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage in respect of ordinary watercourses;
“excluded flood risk activity” means any licensable marine activity authorised by article 56 (deemed marine licence);
“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 watercourse;
“ordinary watercourse” has the meaning given to it by section 72(1) (interpretation) of the Land Drainage Act 1991 M1
“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—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;
cause obstruction to the free passage of fish or damage to any fishery;
affect the conservation, distribution or use of water resources; or
affect the conservation value of the main river and habitats in its immediate vicinity;
but does not include any excluded flood risk activity; and
“Work No.6A(iii)” means Work No. 6A(iii) as is described in Schedule 1 (authorised development).
Commencement Information
I1Sch. 14 para. 28 in force at 15.10.2020, see art. 1
Marginal Citations
M11991 c. 59. Section 72(1) has been amended by paragraph 194(1) of Schedule 22 to the Environment Act 1995 (c. 25), paragraph 39 of Schedule 2 to the Flood and Water Management Act 2010 (c. 29) and S.I. 2013/755.
29.—(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 as determined in accordance with paragraph 38.
(3) Any approval of the Agency required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)in the case of a refusal, must be accompanied by a statement of grounds of refusal;
(c)is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans for approval or receipt of further particulars if such particulars have been requested by the Agency for approval; and
(d)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)(c).
Commencement Information
I2Sch. 14 para. 29 in force at 15.10.2020, see art. 1
30. Without limiting paragraph 29, 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 when compared with that reported in the environmental statement,
by reason of any specified work.
Commencement Information
I3Sch. 14 para. 30 in force at 15.10.2020, see art. 1
31. Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 30, must be constructed—E+W+S
(a)without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and
(b)to the reasonable satisfaction of the Agency,
and the Agency is 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 to which the protective works relate.
(4) If any part of the specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker, at the undertaker's own expense, to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work to the reasonable satisfaction of the Agency, and where removal is required, to restore the site of the specified work or protective work required by the Agency to its former condition to such extent and within such limits as the Agency reasonably requires.
(5) Subject to sub-paragraph (6) and paragraph 36, if within a reasonable period, being not less than 28 days from 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 it 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 a notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency 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 38.
Commencement Information
I4Sch. 14 para. 31 in force at 15.10.2020, see art. 1
32.—(1) Subject to sub-paragraph (5) 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 drainage work, or any part of such drainage 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 specified 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 (4) and paragraph 36, 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 is to be recoverable 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 Agency must 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 38.
(5) This paragraph and paragraph 33 do not apply to—
(a)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 this Order from doing so;
(b)to any drainage works comprised in Work No. 6A(iii); or
(c)any obstruction of a drainage work, for the purposes of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.
Commencement Information
I5Sch. 14 para. 32 in force at 15.10.2020, see art. 1
33. Subject to paragraphs 32(5) and 36, 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
I6Sch. 14 para. 33 in force at 15.10.2020, see art. 1
34. 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 48 hours of the undertaker becoming aware of such obstruction.E+W+S
Commencement Information
I7Sch. 14 para. 34 in force at 15.10.2020, see art. 1
35.—(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 36, 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 the fishery, the undertaker fails to take such steps as are described in a notice served under sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in doing so is to be recoverable from the undertaker.
(4) Subject to paragraph 36, 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
I8Sch. 14 para. 35 in force at 15.10.2020, see art. 1
36.—(1) The undertaker must indemnify the Agency in respect of all costs, charges and expenses which the Agency 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 Agency under this Part of this Schedule; 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
I9Sch. 14 para. 36 in force at 15.10.2020, see art. 1
37.—(1) The undertaker is responsible for and must indemnify the Agency against all costs and losses not otherwise provided [F1for] in this Part of this Schedule which may be incurred or suffered by the Agency by reason of—E+W+S
(a)the construction, of any specified works comprised within the authorised development 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 of the authorised development or dealing with any failure of the authorised development.
(2) For the avoidance of doubt, in sub-paragraph (1)—
“costs” includes—
expenses and charges;
staff costs and overheads; and
legal costs;
“losses” includes physical damage.
(3) Subject to sub-paragraph (7), the undertaker must indemnify the Agency against all liabilities, claims and demands arising directly out of or directly in connection with the construction, maintenance or failure of the authorised development or 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—
costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand; and
any interest element of sums claimed or demanded;
“liabilities” includes—
contractual liabilities;
tortious liabilities (including liabilities for nuisance);
liabilities to pay statutory compensation or for breach of statutory duty; and
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 must be made without the agreement of the undertaker which agreement must 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, does not relieve the undertaker from any liability under the provisions of this Part of this Schedule.
(7) Nothing in this paragraph imposes any liability on the undertaker with respect to any claims, costs, demands, liability or losses to the extent that it is attributable to the act, neglect or default of the Agency, its officers, servants, contractors or agents.
Textual Amendments
F1Word in Sch. 14 para. 37(1) substituted (10.6.2021) by The Great Yarmouth Third River Crossing Development Consent (Correction) Order 2021 (S.I. 2021/692), arts. 1, 2(2)
Commencement Information
I10Sch. 14 para. 37 in force at 15.10.2020, see art. 1
38. Any dispute arising between the undertaker and the Agency under this Part of this Schedule is, if the parties agree, to be determined by arbitration under article 67 (arbitration), but must in the absence of agreement be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Transport 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
I11Sch. 14 para. 38 in force at 15.10.2020, see art. 1