340. For the protection of NW, the following provisions, unless otherwise agreed in writing between the undertaker and NW, have effect.
341. In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable NW to fulfil its statutory functions in no less efficient a manner than previously;
“apparatus” means the following items belonging to or maintained by NW within the Order limits—
in the case of NW’s water undertaking—
mains, pipes, wells, boreholes, tanks, service reservoirs, pumping stations or other apparatus, structure, tunnel, shaft or treatment works or “accessories” (as defined in section 219(1) of the Water Industry Act 1991) belonging to or maintained or used by NW for the purposes of water supply; and
any water mains or service pipes which are the subject of a notice of intention to adopt under section 51A of the Water Industry Act 1991; and
in the case of NW’s sewerage undertaking—
any sewer, drain or disposal works vested in NW under the Water Industry Act 1991; and
any sewer, drain or disposal works which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act,
and includes a sludge main, “disposal main” (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories (as defined in section 219(1) of the Water Industry Act 1991) forming part of any such sewer, drain or works, and 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 apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land;
“NW” means Northumbrian Water Limited, company number 02366703, whose registered office is at Northumbria House, Abbey Road, Pity Me, Durham, DH1 5FJ;
“plan” includes sections, drawings, specifications and method statements; and
“the standard protection strips” means strips of land falling within the following distances to either side of the medial line of any relevant pipe or apparatus—
2.25 metres where the diameter of the pipe is less than 150 millimetres;
3 metres where the diameter of the pipe is between 150 and 450 millimetres;
4.5 metres where the diameter of the pipe is between 450 and 750 millimetres;
6 metres where the diameter of the pipe exceeds 750 millimetres; and
6.5 metres where it is a sewer.
342. The undertaker must not within the standard protection strips interfere with or build over any apparatus within the Order limits or 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 the standard protection strips unless otherwise agreed in writing with NW, such agreement not to be unreasonably withheld or delayed, and this provision must be brought to the attention of any contractor responsible for carrying out any part of the authorised development on behalf of the undertaker.
343. The alteration, extension, removal or re-location of any apparatus shall not be implemented until—
(a)any requirement for any permits under the Environmental Permitting Regulations 2016 or other replacement legislation and any other associated consents are obtained; and
(b)if applicable, the undertaker has made the appropriate application under sections 106 (right to communicate with public sewers), 112 (requirement that proposed drain or sewer be constructed so as to form part of the general system) or 185 (duty to move pipes, etc. in certain cases) of the Water Industry Act 1991 as may be required by those provisions and has provided a plan of the works proposed to NW and NW has given the necessary consent or approval under the relevant provision, such agreement not to be unreasonably withheld or delayed,
and in the event that such works are to be executed by the undertaker, they are to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by NW for the alteration or otherwise for the protection of the apparatus, or for securing access to it.
344. In the situation, where in exercise of the powers conferred by the Order, the undertaker acquires any interest in any land in which any apparatus is placed and such apparatus is to be relocated, extended, removed or altered in any way, no alteration or extension shall take place until NW has established to its reasonable satisfaction, without unnecessary delay, contingency arrangements in order to conduct its functions for the duration of the works to relocate, extend, remove or alter the apparatus.
345. Regardless of any provision in this Order or anything shown on any plan, the undertaker must not acquire any apparatus otherwise than by agreement, and before extinguishing any existing rights for NW to use, keep, inspect, renew and maintain its apparatus in the Order land, the undertaker must, with the agreement of NW, create a new right to use, keep, inspect, renew and maintain the apparatus that is reasonably convenient for NW, such agreement not to be unreasonably withheld or delayed.
346. If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is materially obstructed the undertaker shall provide such alternative means of access to such apparatus as will enable NW to maintain or use the apparatus no less effectively than was possible before such obstruction.
347. If in consequence of the exercise of the powers conferred by the Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets will immediately be given to NW and afforded the same protection as other NW assets.
348.—(1) Subject to sub-paragraphs (2) and (3), if for any reason or in consequence of the construction of any of the works referred to in paragraphs 341 to 343 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 NW, or there is any interruption in any service provided, or in the supply of any goods, by NW, the undertaker must—
(a)bear and pay the cost reasonably incurred by NW in making good any damage or restoring the supply; and
(b)make reasonable compensation to NW for any other expenses, loss, damages, penalty or costs incurred by NW, 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 NW, its officers, employees, servants, contractors or agents.
(3) NW must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) NW 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 this paragraph 347 applies. If requested to do so by the undertaker, NW must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (1). The undertaker shall only be liable under this paragraph 347 for claims reasonably incurred by NW.
349. Any dispute arising between the undertaker and NW under this Part of this Schedule must be referred to and settled by arbitration under article 47 (arbitration).
350.—(1) Where in consequence of the proposed construction of any of the authorised development, the undertaker or NW requires the removal of apparatus or NW makes requirements for the protection or alteration of apparatus, the undertaker must use all reasonable 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 NW’s undertaking and NW must use all reasonable endeavours to co-operate with the undertaker for that purpose.
(2) Where the undertaker identifies any apparatus which may belong to or be maintainable by NW but which does not appear on any statutory map kept for the purpose by NW, it shall inform NW of the existence and location of the apparatus as soon as reasonably practicable.
(3) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and NW in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
351. Prior to carrying out any works within the Order Limits (as defined in the Order) NW must give written notice of the proposed works to the undertaker, such notice to include full details of the location of the proposed works, their anticipated duration, access arrangements, depths of the works, and any other information that may impact upon the works consented by the Order.