The National Grid (Richborough Connection Project) Development Consent Order 2017

Article 42

SCHEDULE 14 PROTECTIVE PROVISIONS

PART 1 PROTECTION FOR ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

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

2.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable the relevant statutory undertaker to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means—

(a)

in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989(1)), belonging to or maintained by that electricity undertaker for the purposes of electricity supply;

(b)

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

(c)

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

(d)

in the case of a sewerage undertaker—

(i)

any drain or works vested in that undertaker under the Water Industry Act 1991(2); and

(ii)

any sewer 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 forming part of any such sewer, drain or works,

and in each case 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;

“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;

“relevant statutory undertaker” means, in relation to any apparatus, the statutory undertaker that owns the apparatus or is responsible for its maintenance; and

“statutory undertaker” means—

(a)

any licence holder within the meaning of Part 1 of the Electricity Act 1989;

(b)

a gas transporter within the meaning of Part 1 of the Gas Act 1986(3);

(c)

a water undertaker within the meaning of the Water Industry Act 1991; and

(d)

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

for the area of the authorised development.

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

4.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any apparatus otherwise than by agreement with the relevant statutory undertaker.

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 a statutory 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 relevant statutory undertaker.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the relevant statutory undertaker written notice of that requirement, together with a plan and section of the work proposed.

(3) If alternative apparatus or any part of such apparatus is to be constructed as a consequence of the removal of apparatus placed on the land referred to in sub-paragraph (2), the relevant statutory undertaker, must on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in other land in which the alternative apparatus is to be constructed.

(4) The relevant statutory undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 48 (arbitration), and after the grant to the statutory undertaker of any such facilities and rights as are referred to in sub-paragraph (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.

(5) Regardless of anything in sub-paragraph (4), if the undertaker gives notice in writing to the relevant statutory undertaker that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus, that work, instead of being executed by the statutory undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the statutory undertaker.

(6) Nothing in sub-paragraph (5) 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.

6.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) 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(2), the undertaker must submit to the relevant statutory undertaker 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 statutory undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the statutory undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a statutory undertaker under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If a statutory undertaker in accordance with sub-paragraph (3) 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 4 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2).

(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 relevant statutory undertaker 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.

7.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to the relevant statutory undertaker the proper and reasonable expenses reasonably incurred by that statutory undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus.

(2) The value of any apparatus removed under the provisions of this Part of the Schedule is to be deducted from any sum payable under sub-paragraph (1), 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 48 (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 relevant statutory undertaker by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

(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 a statutory 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 relevant statutory 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.

PART 2 PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1.—(1) For the protection of any operator, the following provisions, unless otherwise agreed in writing between the undertaker and the operator, have effect.

(2) In this Part of this Schedule—

“conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system are to be 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 Communications Act 2003(4);

“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 of the Communications Act 2003; 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 Communications Act 2003; and

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

2.  The exercise of the powers of article 32 (statutory undertakers) are subject to paragraph 23 of Schedule 2 to the Telecommunications Act 1984(5).

3.—(1) Subject to sub-paragraphs (2) to (3), if as the result of the authorised development or their construction, or of any subsidence resulting from any of those works 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) the undertaker must bear and pay the cost reasonably and properly incurred by the operator in making good such damage.

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

(3) Any difference arising between the undertaker and the operator under this paragraph must be referred to and settled by arbitration under article 48 (arbitration).

4.  This Part of this Schedule does not apply to—

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 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.

5.  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.

PART 3 PROTECTION FOR HIGHWAYS AND TRAFFIC

1.—(1) The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing between the undertaker and the highway authority;

(2) In this Part of this Schedule—

“highway” has the same meaning as in the 1980 Act;

“the highway authority” means Kent County Council including its successor;

“plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of any highway and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;

“property of the highway authority” means any apparatus or street furniture of the highway authority affixed to or placed under any highway; and

(3) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of the highway authority, that approval or consent shall be in writing and subject to such reasonable terms and conditions as the highway authority may require.

(4) In exercising the powers conferred by this Order in relation to any highway the undertaker shall have regard to the potential disruption of traffic which may be caused and shall seek to minimise such disruption so far as is reasonably practicable.

(5) The undertaker shall not, without the consent of the highway authority, construct any part of the works authorised by this Order under and within 50 metres of the surface of any highway which comprises a carriageway except in accordance with plans submitted to, and approved by, the highway authority; and if within 28 days after such plans have been submitted the highway authority has not approved or disapproved them, it shall be deemed to have approved the plans as submitted.

(6) In the construction of any part of the said works under a highway no part of it shall, except with the consent of the highway authority, be so constructed as to interfere with the provision of proper means of drainage of the surface of the highway or be nearer than two metres to the surface of the highway.

(7) The undertaker shall not under the powers conferred by or under this Order without the consent of the highway authority, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over any part of any highway, including subsoil beneath the surface of any highway.

2.—(1) Before commencing the construction of, or the carrying out of any work which involves interference with a highway, the undertaker shall submit to the highway authority for its approval plans, drawings and particulars (in this paragraph referred to as “relevant plans”) relating to the interference, and the works shall not be carried out except in accordance with the relevant plans submitted to, and approved by, the highway authority.

(2) If within 28 days after the relevant plans have been submitted the highway authority has not approved or disapproved them, it shall be deemed to have approved the relevant plans as submitted.

3.  Any officer of the highway authority duly appointed for the purpose may at all reasonable times, on giving to the undertaker such notice as may in the circumstances be reasonable, enter upon and inspect any part of the works authorised by this Order which—

(a) is in, over or under any highway, or

(b) which may affect any highway or any property of the highway authority,

during the carrying out of the work, and the undertaker shall give to such officer all reasonable facilities for such inspection and, if he shall be of the opinion that the construction of the work is attended with danger to any highway or to any property of the highway authority on or under any highway, the undertaker shall adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury to the highway.

4.—(1) The undertaker shall not alter, disturb or in any way interfere with any property of the highway authority on or under any highway, or the access thereto, without the consent of the highway authority, and any alteration, diversion, replacement or reconstruction of any such property which may be necessary shall be made by the highway authority or the undertaker as the highway authority thinks fit, and the expense reasonably incurred by the highway authority in so doing shall be repaid to the highway authority by the undertaker.

(2) If within 28 days after a request for consent has been submitted the highway authority has not given or refused such consent, it shall be deemed to have consented to the request as submitted.

5.  The undertaker shall not remove any soil or material from any highway except so much as must be excavated in the carrying out of the works authorised by this Order.

6.—(1) If the highway authority, after giving to the undertaker not less than 28 days’ notice (or, in case of emergency, such notice as is reasonably practicable) of its intention to do so, incurs any additional expense in the signposting of traffic diversions, in the diversion of footpaths, in the taking of other measures in relation to that, or in the repair of any highway by reason of the diversion to that traffic from a road of a higher standard, in consequence of the construction of the works authorised by this Order, the undertaker shall repay to the highway authority the amount of any such expense reasonably so incurred.

(2) An amount which apart from this sub-paragraph would be payable to the highway authority by virtue of this paragraph in respect of the repair of any highway shall, if the highway fell or would have fallen due for repair as part of the maintenance programme of the highway authority at any time within ten years of the repair being carried out by the undertaker, so as to confer on the highway authority financial benefit (whether by securing the completion of overdue maintenance work for which the highway authority is liable or by deferment of the time for such work in the ordinary course), be reduced by the amount which represents that benefit.

7.—(1) The undertaker shall not, except with the consent of the highway authority, deposit any soil or materials, or stand any plant, on or over any highway so as to obstruct or render less safe the use of the highway by any person, or, except with the like consent, deposit any soil or materials on any highway outside a hoarding, but if within 28 days after request for it any such consent is neither given nor refused it shall be deemed to have been given.

(2) The expense reasonably incurred by the highway authority in removing any soil or materials deposited on any highway in contravention of this paragraph shall be repaid to the highway authority by the undertaker.

8.  The undertaker shall not, except with the consent of the highway authority, erect or retain on or over a highway to which the public continues to have access any scaffolding or other structure which obstructs the highway.

9.  The undertaker shall, if reasonably so required by the highway authority, provide and maintain to the reasonable satisfaction of the highway authority, during such time as the undertaker may occupy any part of a highway for the purpose of the construction of any part of the works authorised by this Order, temporary bridges and temporary ramps for vehicular or pedestrian traffic over any part of the works or in such other position as may be necessary to prevent undue interference with the flow of traffic in the highway.

10.—(1) Where any part of any highway has been broken up or disturbed by the undertaker and not permanently stopped up or diverted, the undertaker shall make good the subsoil, foundations and surface of that part of the highway to the reasonable satisfaction of the highway authority, and shall maintain the same to the reasonable satisfaction of the highway authority for such time as may reasonably be required for the permanent reinstatement of the highway

(2) The reinstatement of that part of the highway shall be carried out by the undertaker to the reasonable satisfaction of the highway authority in accordance with such requirements as to specification of material and standards of workmanship as may be prescribed for equivalent reinstatement work by regulations made under section 71 of the 1991 Act.

11.  If any damage to any highway or any property of the highway authority on or under any highway is caused by, or results from, the construction of any work authorised by this Order or any order or omission of the undertaker, its contractors, agents or employees whilst engaged upon such work, the undertaker may, in the case of damage to a highway, make good such damage to the reasonable satisfaction of the highway authority and, where the undertaker does not make good, or in the case of damage to property of the highway authority, the undertaker shall make compensation to the highway authority.

12.  The fact that any act or thing may have been done in accordance with plans approved by the highway authority shall not (if it was not attributable to the act, neglect or default of the highway authority or of any person in its employ or its contractors or agents) exonerate the undertaker from any liability, or affect any claim for damages, under this Part or otherwise.

13.  Any difference arising between the undertaker and the highway authority under this Part of this Schedule (other than in difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 48 (arbitration).

PART 4 PROTECTION FOR RAILWAY INTERESTS

1.  The following provisions of this Part have effect, unless otherwise agreed in writing between the undertaker and Network Rail.

2.  In this Part—

“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 amended from time to time, granted to Network Rail by the Secretary of State in exercise of the powers in section 8 of the Railways Act l993(6);

“Network Rail” means Network Rail Infrastructure Limited 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(7) (meaning of “subsidiary” etc)) 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;

“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 dates of, 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(8)) or station lease;

“railway property” means—

(a)

any railway belonging to Network Rail;

(b)

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

(c)

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

“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.

3.—(1) Where under this Part 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.

(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 its 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.

4.—(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 under article 48 (arbitration).

(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 disapproval of those plans and the grounds of 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 and if, by the expiry of the further 28 days period specified in the written notice the engineer has not intimated approval or disapproval, the engineer is 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 with all reasonable dispatch 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 approval of the plans, the engineer may specify any protective works (whether temporary or permanent) which in the opinion of the engineer must 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 work), and such protective works as may be reasonably necessary for those purposes are to 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 with all reasonable dispatch, and the undertaker must not commence the construction of the specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

5.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 4(4) must, when commenced, be constructed—

(a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 4;

(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;

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

(e) so as not to interfere with the safe use of any railway of Network Rail or the traffic thereon or the safety of passengers using railway property.

(2) If any damage to railway property or any such interference or obstruction is 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 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 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.

6.  The undertaker must—

(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 the engineer may reasonably require with regard to a specified work or the method of constructing it.

7.  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 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.

8.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or during a period of 12 months after the completion of that 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 reasonable notice 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.

(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 4(1), 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 9(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 the saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

9.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 4(3) or in constructing any protective works under the provisions of paragraph 4(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, signalmen, watchmen and other persons whom it is 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.

10.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail 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 4(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 4(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 Network Rail may, in its reasonable discretion, select the means of prevention and the method of their execution, and in relation to such modifications paragraph 4(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning operations comprised in the authorised development and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning 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; and

(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.

(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; and

(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 5.

(9) For the purpose of paragraph 9(a) any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(10) In relation to any dispute arising under this paragraph the reference in article 48 (arbitration) to the Secretary of State must be read as a reference to the President of the Institution of Engineering and Technology.

11.  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.

12.  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.

13.  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’ prior notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

14.—(1) The undertaker must—

(a) pay to Network Rail all reasonable and proper costs, charges, damages and expenses not otherwise provided for in this Part (but subject to the provisions of this paragraph) which may be occasioned to or reasonably incurred by Network Rail by reason of—

(i) the construction or maintenance of a specified work or the failure of such a work; or

(ii) 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; and

(b) 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.

(2) 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 supervision of the engineer does 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 sub-paragraph (1).

(3) Network Rail must—

(a) give the undertaker written notice of any such claims or demands as soon as reasonably possible after Network Rail become aware of any such claims or demands;

(b) not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior 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);

(c) take all reasonable steps to mitigate any liabilities relating to such claims or demands; and

(d) keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.

(4) In no circumstances is the undertaker liable to Network Rail under sub-paragraph (1) for any indirect or consequential loss or loss of profits, save that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—

(a) Network Rail is liable to make payment of the relevant costs pursuant to the terms of an agreement between Network Rail and a train operator; and

(b) the existence of that agreement and the extent of Network Rail’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker,

but not otherwise.

(5) Subject to the terms of any agreement between Network Rail and a train operator regarding the amount, 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 (4) which relate to the relevant costs of that train operator.

(6) The obligation under sub-paragraph (4) 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 (5).

(7) In this paragraph—

“relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by a train operator as a consequence of 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.

15.  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 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.

16.  In the assessment of any sums payable to Network Rail under this Part, no account must be taken of 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 or increasing the sums so payable.

17.  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—

(a) any railway property shown on the works plans 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.

18.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.

19.  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 43 (certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read-only memory.

PART 5 PROTECTION FOR SOUTH EAST WATER LIMITED

General

1.  The following provisions of this Part have effect unless otherwise agreed in writing between the undertaker and South East Water Limited.

2.  In this Part—

“alternative apparatus” means any temporary or permanent alternative apparatus adequate to enable SEW to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means mains, pipes or other water apparatus belonging to or maintained by SEW for the purposes of water supply 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;

“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

“SEW” means South East Water Limited (company number 02679874) and any associated company of South East Water Limited and any successor company or body carrying on the functions of a regulated water supply company in Kent.

3.  Paragraphs 1 to 9 of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SEW are regulated by the provisions of Part 3 of the 1991 Act.

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.

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 or diverted from its position under this Part of this Schedule and/or any right of SEW to retain and maintain that apparatus in that land must not be extinguished or made permanently or for any longer than 7 consecutive days incapable of being exercised until—

(a) any alternative apparatus required has been constructed and is in operation to the reasonable satisfaction of SEW; and

(b) any rights required by SEW (acting reasonably) including to install, access, retain, replace, divert and maintain any diverted apparatus or alternative apparatus have been secured to the reasonable satisfaction of SEW.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires SEW to remove or divert any apparatus placed in that land, SEW will not be obligated to do so until it is satisfied that the conditions of sub-paragraphs (1)(a) and (b) have, or will be, met and the undertaker has given to SEW written notice of that requirement, together with a plan and section of the work proposed for approval (such approval not to be unreasonably withheld).

(3) If alternative apparatus is to be constructed as a consequence of the removal or diversion of apparatus placed, or any part of such apparatus, on the land referred to in sub-paragraph (2), SEW, must on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible, use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) SEW must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 48 (arbitration), and after the grant to SEW of any such facilities and rights as are referred to in sub-paragraphs (1)(b) and (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 being met and SEW having secured any rights necessary to carry out such a removal, diversion or other alteration.

(5) Regardless of anything in sub-paragraph (4) but subject to the conditions in sub-paragraphs (1)(a) and (b), if the undertaker gives notice in writing to SEW that it desires itself to execute any work, or part of any work in connection with the removal or diversion of apparatus or the construction of alternative apparatus, that work, instead of being executed by SEW, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of SEW. The undertaker will use its best endeavours to carry out such work in such manner as to cause as little damage and disruption as possible to SEW. If so requested by SEW, where possible, the undertaker will return any removed apparatus to SEW.

(6) Nothing in sub-paragraph (5) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of apparatus which is within 300 millimetres of any apparatus the removal or diversion of which has not been required by the undertaker under paragraph 5(2) (retained apparatus), or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of retained apparatus.

6.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to or will or may affect any retained apparatus, the undertaker must submit to SEW a plan, section and description of the works to be executed in order to ensure the protection of retained apparatus.

(2) The 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 SEW for the alteration or otherwise for the protection of retained apparatus or for securing access to such retained apparatus and SEW is entitled to watch and inspect the execution of those works.

(3) Any requirements made by SEW under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it, or as soon as reasonably practicable after SEW becoming aware of an issue (which it was not aware of at the time the plan, section and description under sub-paragraph (1) was submitted), which means a requirement(s) is now necessary to protect the retained apparatus and or access to the retained apparatus.

(4) If SEW in accordance with sub-paragraph (3) 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 4 of this Part of this Schedule apply as if the removal of the apparatus had been required by the undertaker under paragraph 49(2).

(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 SEW 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.

7.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to SEW the proper and reasonable expenses reasonably incurred by SEW in, or in connection with, the consideration and approval of plans, inspection, installation, removal, diversion, alteration or protection of any apparatus, retained apparatus or alternative apparatus and the reasonable costs of securing any rights which SEW requires (acting reasonably) in relation to the apparatus or alternative apparatus including to install, access, retain, replace, divert, alter and maintain that apparatus or alternative apparatus. Such repayment to be made within 42 days of receipt of a written demand from SEW.

(2) The value of any apparatus removed by SEW or returned to SEW after removal by the undertaker is to be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal by the undertaker (who will provide reasonable evidence of such value) and agreed between the undertaker and SEW or settled by arbitration in accordance with article 48 (arbitration)

(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 alternative apparatus) is placed at a greater depth 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 48 (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 SEW by virtue of sub-paragraph (1) is to be reduced by the amount of that excess, the amount of that excess being calculated by the undertaker (who will provide reasonable evidence of such amount) and agreed between the undertaker and SEW or settled by arbitration in accordance with article 48 (arbitration).

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

(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 SEW 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 SEW 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, the amount being calculated by SEW (who will provide reasonable evidence of such amount) and agreed between the undertaker and SEW or settled by arbitration in accordance with article 48 (arbitration).

8.  If any damage to any apparatus or any property containing apparatus is caused by, or results from, any work authorised by this Order or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon such work, the undertaker must make good such damage to the reasonable satisfaction of SEW and or make a payment of compensation to SEW including in such a compensation payment the cost of any fines or compensation SEW incurs due to any inability to carry out its statutory functions.

9.  The undertaker must not in the exercise of the powers conferred by this Order permanently or for any longer than 7 consecutive days prevent pedestrian or vehicular access to any apparatus or alternative apparatus, unless preventing such access is with the consent of SEW.

For the benefit of the proposed Broad Oak Reservoir

10.  In paragraphs 10 to 17 of this Part of this Schedule—

“Broad Oak Reservoir” means a reservoir in the vicinity of the village of Broad Oak in Kent proposed by SEW;

“Broad Oak Reservoir Construction Works” means works to be carried out by or on behalf of SEW for the construction of the Broad Oak Reservoir including without limitation works to construct the dam structure, to dig and flood the reservoir, all works required in connection with the Scheme for Habitat Creation and Management, access and egress on foot and with vehicles;

“Broad Oak Reservoir Preparatory Works” means works to be carried out by or on behalf of SEW in connection with the construction of the Broad Oak Reservoir including without limitation the drilling of boreholes, the digging of test pits, the carrying out of geomorphological surveys, the digging of trenches, the creation of a river channel, the removal and planting of trees, woodlands, shrubs and other vegetation and access and egress on foot and with vehicles;

“conductor” means a conductor or part of a conductor being part of any 400kV overhead electrical line forming part of the authorised development as shown on the design drawings;

“pylon” means any pylon forming part of the authorised development and including its foundations and the safety clearance zone around it;

“RCP safety requirements” means the requirement that climbable trees must remain 5.3 metres below the conductor and 5 metres away from the anti-climbing devices attached to the pylons and coppiced trees must remain 3.1 metres below the conductor and 5 metres away from the anti-climbing devices attached to the pylons, the 5 metre distance being such as not to assist unauthorised access above the anti-climbing devices attached to the pylons;

“Scheme for Habitat Creation and Management” means a scheme for the creation of new habitat including the diversion of the Sarre Penn River, the creation of a fish pass and new habitat required to enable the construction of the Broad Oak Reservoir which scheme has been approved by the relevant planning authority;

“SEW’s land” means Plot Numbers 356, 358, 359, 360, 361, 362, 363, 364, 365, 366, 368, 369, 370, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 386, 387, 388, 391, 392, 393 and 419.

11.  Unless expressly provided otherwise in this Part, notwithstanding any provision in this Order, the undertaker shall not enter onto SEW’s land unless the undertaker has first given SEW at least 30 days’ written notice of a need to enter onto SEW’s land and the undertaker enters onto SEW’s land in accordance with such reasonable requirements made by SEW.

12.  Notwithstanding any provision in this Order, the undertaker may not exercise the powers conferred by the Order in respect of SEW’s land in such a way that would prevent SEW from implementing the Scheme for Habitat Creation and Management or carrying out the Broad Oak Reservoir Preparatory Works, the Broad Oak Reservoir Construction Works or from operating the Broad Oak Reservoir within SEW’s land except where reasonably required in order to protect the integrity and safe operation of the authorised development.

13.  If after giving SEW 21 days’ notice that it intends to enter SEW’s land to fell and lop trees and any other vegetation as necessary to ensure compliance with the RCP safety requirements, the undertaker may enter SEW’s land, provided that SEW has not itself undertaken the necessary works to ensure compliance with the RCP safety requirements, and that if the undertaker does exercise powers under the Order to carry out such lopping or felling it shall do so in accordance with SEW’s reasonable requirements and so as to cause as little disruption to planting and vegetation on SEW’s land as possible.

14.  Notwithstanding any provision in this Order including the limits of deviation, no part of the authorised development comprising a conductor may be constructed or installed on or over any part of SEW’s land at a level which is more than 50 centimetres lower than the level of that conductor as shown on the design drawings.

15.  Notwithstanding any provision in this Order including the limits of deviation, Pylons PC8 to PC10 must be sited within 5 metre tolerance of the positions shown in National Grid Drawing Ref PDD-21497-2-OHL-0434 Version B (REP8-021, Sheet 4L of 21), unless otherwise agreed in writing with SEW.

16.  The undertaker at its own cost must within 18 months (unless otherwise agreed with SEW) of planning permission or other statutory consent being granted for the Broad Oak Reservoir, fit and thereafter maintain bird flight diverters to the overhead lines between Pylons PC7 to PC10, provided that a condition or requirement of any permission or consent or obligation under any relevant instrument within or connected to the planning permission or other statutory consent for the Broad Oak Reservoir confirms that the fitting of bird flight diverters is required.

17.  The undertaker must, if requested in writing by SEW, inform SEW of any upcoming confirmed or likely planned outages of the conductor or conductors, giving SEW as much notice as reasonably practicable of such outages.

(1)

1989 c.29.

(2)

1991 c.56.

(3)

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).

(4)

2003 c. 21. See section 106.

(5)

1984 c.12.

(6)

1993 c. 43.

(7)

2006 c. 46.

(8)

1993 c.43.