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The M54 to M6 Link Road Development Consent Order 2022
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- Offerynnau Statudol y Deyrnas Unedig
- 2022 No. 475
- Schedules only
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Dyma’r fersiwn wreiddiol (fel y’i gwnaed yn wreiddiol). This item of legislation is currently only available in its original format.
SCHEDULES
Article 2
SCHEDULE 1AUTHORISED DEVELOPMENT
In the administrative areas of South Staffordshire and Wolverhampton
A nationally significant infrastructure project as defined in sections 14 and 22(1) of the 2008 Act, and associated development as defined in section 115(2)(2) of the 2008 Act, comprising:
Work No. 1A – shown on sheet number 1 of the works plans and being the alteration of verge mounted advance directional signage along the M54 carriageway.
Work No. 1B – shown on sheet number 1 of the works plans and being the alteration of verge mounted advance directional signage along the M54 carriageway.
Work No. 1C – shown on sheet number 1 of the works plans and being the alteration of verge mounted advance directional signage along the M54 carriageway.
Work No. 1D – shown on sheet number 2 of the works plans and being the alteration of verge mounted advance directional signage along the A449 carriageway.
Work No. 1E – shown on sheet numbers 3 and 4 of the works plans and being the improvement of the eastbound carriageway of the M54 Motorway at the Junction 1 diverge (480 metres in length).
Work No. 2 – shown on sheet number 4 of the works plans and being the construction of a free-flowing two lane carriageway from the M54 eastbound at Junction 1 to the link road (1,200 metres in length).
Work No. 3 – shown on sheet numbers 3 and 4 of the works plans and being the improvement of the westbound carriageway of the M54 at the Junction 1 merge (600 metres in length).
Work No. 4 – shown on sheet number 4 of the works plans and being the construction of a free-flowing two lane carriageway link from the link road to the M54 westbound at Junction 1 (1,270 metres in length).
Work No. 5 – shown on sheet number 4 of the works plans and being the construction of a slip road from the M54 Junction 1 south roundabout to the M54 westbound merge slip road (340 metres in length).
Work No. 6 – shown on sheet number 4 of the works plans and being the construction of a slip road from the M54 eastbound slip road at Junction 1 to the Featherstone Junction west roundabout (475 metres in length).
Work No. 7 – shown on sheet number 4 of the works plans and being the realignment of the A460 into the M54 Junction 1 south roundabout (185 metres in length).
Work No. 8 – shown on sheet number 4 of the works plans and being the demolition of the existing M54 Junction 1 circulatory carriageway and the construction of the M54 Junction 1 south roundabout.
Work No. 9 – shown on sheet number 4 of the works plans and being the realignment of the M54 Junction 1 westbound diverge slip road into the M54 Junction 1 south roundabout (315 metres in length).
Work No. 10 – shown on sheet number 4 of the works plans and being the construction of a dual carriageway connector road between the Featherstone Junction east roundabout and M54 Junction 1 south roundabout (370 metres in length).
Work No. 11 – shown on sheet number 4 of the works plans and being the stopping up of the existing A460 at M54 Junction 1 including the construction of a turning head facility and improvements at the junction between the A460 and The Avenue.
Work No. 12 – shown on sheet number 4 of the works plans and being the realignment of the M54 Junction 1 eastbound merge slip into the Featherstone Junction east roundabout (845 metres in length).
Work No. 13 – shown on sheet number 4 of the works plans and being the construction of the Featherstone Junction east roundabout.
Work No. 14 – shown on sheet number 4 of the works plans and being the construction of a carriageway dumbbell link between the Featherstone Junction east roundabout and the Featherstone Junction west roundabout passing over the link road via a structure (100 metres in length).
Work No. 15 – shown on sheet number 4 of the works plans and being the construction of the Featherstone Junction west roundabout.
Work No. 16 – shown on sheet number 4 of the works plans and being the realignment of the existing A460 to the Featherstone Junction west roundabout (460 metres in length).
Work No. 17 – shown on sheet number 4 of the works plans and being the realignment of the existing A460 and construction of a T-Junction on the realigned existing A460 (110 metres in length).
Work No. 18 – works number no longer in use.
Work No. 19 – works number no longer in use.
Work No. 20 – shown on sheet number 4 of the works plans and being the construction of an access for Tower Hill Farm connecting to the Featherstone Junction east roundabout (100 metres in length).
Work No. 21 – shown on sheet number 4 of the works plans and being the construction of a Hilton Park Access Track connecting to the Featherstone Junction east roundabout (390 metres in length).
Work No. 22 – shown on sheet number 4 of the works plans and being the construction of the Featherstone Junction southbound diverge slip road (520 metres in length).
Work No. 23 – shown on sheet number 4 of the works plans and being the construction of the Featherstone Junction northbound merge slip road (490 metres in length).
Work No. 24 – shown on sheet numbers 4 and 5 of the works plans and being the closure of Dark Lane between the final property along Dark Lane and the Junction between Dark Lane and Hilton Lane including the construction of a turning head facility.
Work No. 25 – shown on sheet numbers 4 to 6 of the works plans and being the construction of the link road northbound dual carriageway to M6 Junction 11 (1650 metres in length).
Work No. 26 – shown on sheet numbers 4 to 6 of the works plans and being the construction of the link road southbound dual-carriageway from M6 Junction 11 (1600 metres in length).
Work No. 27 – shown on sheet number 5 of the works plans and being the construction of a realigned Hilton Lane including a structure over the link road (300 metres in length).
Work No. 28 – shown on sheet number 5 of the works plans and being the construction of an accommodation overbridge and realignment of access tracks to the south of Brookfield Farm (575 metres in length).
Work No. 29 – shown on sheet number 6 of the works plans and being the realignment of the existing A460 to M6 Junction 11 (330 metres in length).
Work No. 30 – shown on sheet number 6 of the works plans and being the realignment of Mill Lane (200 metres in length).
Work No. 31 – shown on sheet number 4 of the works plans and being the construction of a new structure on the M54 at Junction 1 to facilitate the new junction arrangement under the motorway.
Work No. 32 – shown on sheet numbers 5 and 6 of the works plans and being the realignment of the M6 Junction 11 northbound diverge slip road (320 metres in length).
Work No. 33 – shown on sheet number 6 of the works plans and being the realignment of the M6 Junction 11 northbound merge slip road (620 metres in length).
Work No. 34 – shown on sheet numbers 5 and 6 of the works plans and being the realignment of the M6 Junction 11 southbound merge slip road (610 metres in length).
Work No. 35 – shown on sheet number 6 of the works plans and being the realignment of the M6 Junction 11 southbound diverge slip road (380 metres in length).
Work No. 36 – shown on sheet number 6 of the works plans and being the demolition of the two existing structures at M6 Junction 11, removal of redundant sections of the existing circulatory carriageway and the construction of a new M6 Junction 11 circulatory carriageway, including the construction of two overbridges over the M6 and installation of five portal gantries around the circulatory carriageway and associated infrastructure works along the M6 carriageway to facilitate construction.
Work No. 37 – shown on sheet number 6 of the works plans and being the realignment of the A462 to M6 Junction 11 (150 metres in length).
Work No. 38 – shown on sheet number 6 of the works plans and being the realignment of the adjoining Wolverhampton Road to the realigned A462.
Work No. 39 – shown on sheet number 6 of the works plans and being the realignment and widening of the A460 southbound by a single lane from the M6 Toll merge to M6 Junction 11 and widening of the A460 northbound by a single lane from M6 Junction 11 tapering back down to two lanes ahead of the M6 Toll overbridge.
Work No. 40 – shown on sheet number 6 of the works plans and being the realignment of the adjoining Wolverhampton Road to the realigned A460.
Work No. 41 – shown on sheet number 2 of the works plans and being the installation of a cantilever gantry at M54 Junction 2 in the eastbound verge and associated infrastructure works to facilitate construction.
Work No. 42 – shown on sheet number 3 of the works plans and being the installation of a cantilever gantry in the existing M54 eastbound verge and associated infrastructure works to facilitate construction.
Work No. 43 – shown on sheet number 3 of the works plans and being the installation of a cantilever gantry in the existing M54 eastbound verge and associated infrastructure works to facilitate construction.
Work No. 44 – shown on sheet number 4 of the works plans and being the installation of a cantilever gantry on the M54 eastbound diverge slip road and associated infrastructure works to facilitate construction.
Work No. 45 – shown on sheet number 4 of the works plans and being the construction of a culvert and realignment of Watercourse 2 in the vicinity of M54 Junction 1.
Work No. 46 – shown on sheet number 4 of the works plans and being the construction of a culvert and realignment of Watercourse 3 adjacent to Dark Lane and associated works required to the existing drainage pools.
Work No. 47 – shown on sheet number 5 of the works plans and being the construction of a culvert on Watercourse 4 adjacent to Brookfield Farm.
Work No. 48 – shown on sheet number 6 of the works plans and being the construction of a structure under the link road on Watercourse 5 (Latherford Brook).
Work No. 49 – shown on sheet number 6 of the works plans and being the alteration of a portal gantry across the M6 Junction 11 southbound merge and northbound diverge slip roads.
Work No. 50 – shown on sheet number 6 of the works plans and being the alteration of a portal gantry over the M6 Junction 11 southbound diverge slip road.
Work No. 51 – shown on sheet number 7 of the works plans and being the alteration of a portal gantry along the M6 southbound.
Work No. 52 – shown on sheet number 7 of the works plans and being the alteration of a portal gantry along the M6 southbound.
Work No. 53 – shown on sheet number 7 of the works plans and being the alteration of a portal along the M6 southbound.
Work No. 54 – shown on sheet number 8 of the works plans and being the alteration of a portal gantry along the M6 southbound.
Work No. 55A – shown on sheet number 9 of the works plans and being the alteration of a cantilever gantry along the M6 southbound.
Work No. 55B – shown on sheet number 10 of the works plans and being the alteration of a cantilever gantry along the M6 southbound.
Work No. 55C – shown on sheet number 10 of the works plans and being the alteration of a cantilever gantry along the M6 southbound.
Work No. 56 – shown on sheet number 3 of the works plans and being the installation of drainage attenuation and treatment systems to the north west of M54 Junction 1. Works to include the installation of a balancing pond to provide attenuation and treatment with a new outfall connection to the existing ditch. Access for maintenance to be constructed off Brookhouse Lane.
Work No. 57 – shown on sheet number 4 of the works plans and being the installation of drainage attenuation and treatment systems to the north east of M54 Junction 1. Works to include the installation of a balancing pond to provide attenuation and treatment with a new outfall connection to Watercourse 2. Access for maintenance to be constructed off the dual carriageway connector road.
Work No. 58 – shown on sheet number 4 of the works plans and being the installation of drainage attenuation and treatment systems to the east of the existing A460. Works to include the installation of a balancing pond to provide attenuation and treatment with a new outfall connection to the existing drainage network. Access for maintenance to be constructed off the existing A460.
Work No. 59 – shown on sheet number 5 of the works plans and being the installation of drainage attenuation and treatment systems to the south of Brookfield Farm. Works to include the installation of a balancing pond to provide attenuation and treatment with a new outfall connection to Watercourse 4. Access for maintenance to the balancing pond to be along existing track that connects to Hilton Lane and via new accommodation bridge.
Work No. 60 – shown on sheet number 6 of the works plans and being the installation of drainage attenuation and treatment systems to the south of M6 Junction 11. Works to include the installation of a balancing pond to provide attenuation and treatment with new outfall connection into Watercourse 5 (Latherford Brook). Access for maintenance to be constructed off the realigned existing A460.
Work No. 61 – shown on sheet number 4 of the works plans and being works to realign the existing Public Right of Way (bridleway) Featherstone 3 due to the construction of the new M54 Junction 1 (250 metres in length).
Work No. 62 – shown on sheet numbers 4 and 5 of the works plans and being the construction of a new Public Right of Way (bridleway) connection between Dark Lane and Hilton Lane (320 metres in length).
Work No. 63 – shown on sheet number 5 of the works plans and being works to realign the existing Public Right of Way (footway) Shareshill 5 due to the construction of the link road (260 metres in length).
Work No. 64 – shown on sheet number 5 of the works plans and being works to realign the existing Public Right of Way (bridleway) Shareshill 1 due to the construction of the link road (750 metres in length).
Work No. 65 – shown on sheet number 6 of the works plans and being works to realign the existing Public Rights of Way (footway) Shareshill 4, Saredon 8 and Saredon 1R/2214 due to the construction of the link road (270 metres in length).
Work No. 66 – shown on sheet number 6 of the works plans and being works to realign the existing Public Right of Way Saredon 13 due to the realignment of the existing A460 (250 metres in length).
Work No. 67 – shown on sheet number 4 of the works plans and being the diversion of utilities and associated infrastructure (including (i) electrical, (ii) telecommunications and (iii) potable water) to a new utilities corridor to the west of M54 Junction 1 (130 metres in length).
Work No. 68 – shown on sheet number 4 of the works plans and being the diversion of a high pressure gas main and associated infrastructure due to the construction of the link road (1000 metres in length).
Work No. 69 – shown on sheet numbers 4 and 5 of the works plans and being the diversion of a (i) water main, (ii) sewer, (iii) communications ducts and associated infrastructure due to the construction of the link road (500 metres in length).
Work No. 70 – shown on sheet number 5 of the works plans and being the diversion of an overhead electricity cable and associated infrastructure due to the construction of the link road (220 metres in length).
Work No. 71 – shown on sheet number 4 of the works plans and being the construction of a temporary site compound situated on land to the east of the existing A460 and the establishment of permanent environmental mitigation areas to the west of the link road including habitat creation (species rich grassland, woodland planting and individual trees) to mitigate for biodiversity loss.
Work No. 72 – shown on sheet number 6 of the works plans and being the construction of a temporary site compound situated on land to the north west of M6 Junction 11 and establishment of permanent environmental mitigation areas including species rich grassland, species rich hedgerow, ecology pond and individual trees to mitigate for biodiversity loss.
Work No. 73 – shown on sheet numbers 4 and 5 of the works plans and being the modification of the junction between the existing A460, New Road and Dark Lane and associated infrastructure including the removal of the right turn prohibition in to Dark Lane.
Work No. 74 – shown on sheet number 5 of the works plans and being the construction of a borrow pit including the excavation, working and restoration to win material required for the construction of the authorised development.
Work No. 75 – shown on sheet number 3 of the works plans and being the establishment of environmental mitigation areas. Habitat creation (hedgerow and species rich grassland) to mitigate for biodiversity loss.
Work No. 76 – shown on sheet numbers 3 and 4 of the works plans and being the establishment of ancient woodland enhancement measures to compensate for ancient woodland loss.
Work No. 77 – shown on sheet number 4 of the works plans and being the establishment of environmental mitigation areas between the free flow links. Habitat creation (woodland planting) to integrate the authorised development into the surrounding landscape and to mitigate for biodiversity loss.
Work No. 78 – shown on sheet number 4 of the works plans and being the establishment of environmental mitigation. Habitat creation (ecology ponds and species rich grassland) to mitigate for biodiversity loss.
Work No. 79 – shown on sheet number 4 of the works plans and being the establishment of environmental mitigation areas, habitat creation (woodland planting) for visual screening and to mitigate for biodiversity loss.
Work No. 80 – shown on sheet number 4 of the works plans and being the establishment of environmental mitigation areas to the west of the link road. Habitat creation for visual screening and to mitigate for biodiversity loss and integrate the authorised development into the surrounding landscape. Woodland planting to screen views of the authorised development. Replacement of existing fence along Dark Lane.
Work No. 81 – shown on sheet number 5 of the works plans and being the establishment of environmental mitigation to the west of the link road including habitat creation (woodland planting and ecology ponds) to mitigate for biodiversity loss.
Work No. 82 – shown on sheet number 5 of the works plans and being habitat creation (woodland planting) to the east of the link road to provide visual screening and to mitigate for biodiversity loss.
Work No. 83 – shown on sheet numbers 5 and 6 of the works plans and being the establishment of environmental mitigation to the east of the link road. Habitat creation (woodland planting and ecology ponds) to mitigate for biodiversity loss and compensate for the loss of ancient woodland.
Work No. 84 – shown on sheet numbers 5 and 6 of the works plans and being the establishment of woodland planting south of the M6 Junction 11 to compensate for the loss of ancient woodland.
Work No. 85 – works number no longer in use.
Work No. 86 – shown on sheet numbers 4 and 5 of the works plans and being the establishment of woodland enhancement measures to compensate for biodiversity loss.
Work No. 87 – shown on sheet numbers 5 and 6 of the works plans and being the establishment of woodland enhancement measures to compensate for biodiversity loss.
Work No. 88 – shown on sheet number 5 of the works plans and being the establishment of woodland planting south of the M6 Junction 11 to compensate for the loss of ancient woodland.
Work No. 89 – shown on sheet number 6 of the works plans and being the establishment of ancient woodland enhancement measures to compensate for ancient woodland loss.
Work No. 90 – shown on sheet number 4 of the works plans and being the construction of an access from the realigned existing A460 to the petrol station and local businesses situated on the existing A460.
Work No. 91 – shown on sheet number 4 of the works plans and being the construction of a new public right of way (footpath) connection between the existing A460 and the Featherstone Junction west roundabout (150 metres in length).
In connection with the construction of any of those works, further development within the Order limits consisting of—
(a)alteration of the layout of any street permanently or temporarily, including but not limited to increasing the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street; altering the level or increasing the width of any such kerb, footpath, footway, cycle track or verge; and reducing the width of the carriageway of the street;
(b)works required for the strengthening, improvement, maintenance, or reconstruction of any street;
(c)works for the strengthening, alteration or demolition of any building;
(d)ramps, means of access, non-motorised links, footpaths, footways, bridleways, cycle tracks and crossing facilities;
(e)embankments, viaducts, aprons, abutments, shafts, foundations, retaining walls, drainage, outfalls, ditches, ponds, pollution control devices, wing walls, highway lighting, fencing and culverts;
(f)street works, including breaking up or opening a street, or any sewer, drain or tunnel under it; tunnelling or boring under a street;
(g)works to place, alter, divert, relocate, remove or maintain the position of apparatus, services, plant and other equipment in a street, or in other land, including mains, sewers, drains, pipes, lights and cables;
(h)works to alter the course of, or otherwise interfere with a watercourse;
(i)landscaping, noise barriers, works associated with the provision of ecological mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;
(j)works for the benefit or protection of land affected by the authorised development;
(k)works to place, alter, remove or maintain road furniture;
(l)site preparation works, site clearance (including fencing, vegetation removal, demolition of existing structures and the creation of alternative footpaths); earthworks (including soils stripping and storage, site levelling);
(m)the felling of trees and hedgerows;
(n)establishment of site construction compounds, storage areas, temporary vehicle parking, construction fencing, perimeter enclosure, security fencing, construction related buildings, welfare facilities, construction lighting, haulage roads and other machinery, apparatus, works and conveniences;
(o)provision of other works including pavement works, kerbing and paved areas works, signing, signals, gantries, road markings works, traffic management measures including temporary roads and such other works as are associated with the construction of the authorised development; and
(p)such other works, working sites storage areas, works of demolition or works of whatever nature, as may be necessary or expedient for the purposes of, or for purposes associated with or ancillary to, the construction, operation or maintenance of the authorised development which do not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement.
Article 3
SCHEDULE 2REQUIREMENTS
PART 1REQUIREMENTS
Interpretation
1.—(1) In this Schedule—
“bank or public holiday” means Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971(3);
“contaminated land” has the same meaning as that given in section 78A of the Environmental Protection Act 1990(4);
“CEMP” means the construction environmental management plan;
“European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017(5);
“HEMP” means the handover environmental management plan;
“lead local flood authority” has the same meaning as in the Flood and Water Management Act 2010(6);
“nationally protected species” means any species protected under the Wildlife and Countryside Act 1981(7);
“Natural England” means the body created by the Natural Environment and Rural Communities Act 2006(8) or any successor in function to it;
“OEMP” means the outline environmental management plan submitted with the application for this Order and certified as the OEMP by the Secretary of State for the purposes of this Order; and
“REAC” means the record of environmental actions and commitments (contained in the OEMP).
(2) With respect to any requirement which requires the authorised development to be carried out in accordance with the details or schemes or plans approved under this Schedule, the approved details or schemes or plans are taken to include any amendments that may subsequently be approved in writing.
Time limits
2. The authorised development must commence no later than the expiration of 5 years beginning with the date that this Order comes into force.
Detailed design
3.—(1) The authorised development must be designed in detail and carried out in accordance with the preliminary scheme design shown on the works plans and engineering drawings and sections unless otherwise agreed in writing by the Secretary of State following consultation with the relevant planning authority and the relevant local highway authority on matters related to its functions, provided that the Secretary of State is satisfied that any amendments to the works plans and engineering drawings and sections showing departures from the preliminary scheme design would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(2) Where amended details are approved by the Secretary of State under sub-paragraph (1), those details are deemed to be substituted for the corresponding works plans and engineering drawings and sections and the undertaker must make those amended details available in electronic form for inspection by members of the public.
Construction and handover environmental management plans
4.—(1) No part of the authorised development is to commence until a CEMP, substantially in accordance with the OEMP, for that part has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority and, to the extent that it relates to a matter relevant to its function, the relevant local highway authority, Natural England and the Environment Agency.
(2) The CEMP must be written in accordance with ISO14001 and must—
(a)reflect the mitigation measures set out in the REAC;
(b)contain a record of all sensitive environmental features that have the potential to be affected by the construction of the proposed development;
(c)require adherence to working hours of 07:00–19:00 on Mondays to Fridays and 08:00–16:00 on Saturday with no working on Sundays and bank or public holidays except for—
(i)24 hours a day 7 days a week working to carry out the works at the M54 Junction 1 for a period of up to 3 weeks whilst the motorway is closed;
(ii)deliveries, movements to work, maintenance and general preparation works but not including running plant and machinery for a period of one hour either side of the above times;
(iii)night-time closures for road crossings and final surfacing tie-ins, and bridge demolition and installation;
(iv)any oversize deliveries or deliveries where daytime working would be excessively disruptive to normal traffic operation;
(v)junction works;
(vi)repair or maintenance of construction equipment;
(vii)removal of overhead power lines;
(viii)overnight traffic management measures;
(ix)works associated with traffic management and signal changes;
(x)cases of emergency; and
(xi)as otherwise agreed by the local authority in advance;
(d)include the following management plans—
(i)Biosecurity Management Plan;
(ii)Site Waste Management Plan;
(iii)Emergency Preparedness and Response Plan;
(iv)Archaeological Management Plan;
(v)Archaeological Mitigation Strategy;
(vi)Arboricultural Mitigation Strategy;
(vii)Fire Rescue and Translocation Strategy;
(viii)Landscape and Ecology Management Plan;
(ix)Noise and Vibration Management Plan;
(x)Soil Management Strategy (including a Soil Management Plan and Soil Handling Strategy);
(xi)Materials Management Plan;
(xii)Asbestos Management Plan;
(xiii)Water Management Plan; and
(xiv)Traffic Management Plan (including a Site Access Plan, Site Travel Plan and Construction Workforce Travel Plan).
(3) The construction of the authorised development must be carried out in accordance with the approved CEMP.
(4) A HEMP must be developed and completed by the end of the construction, commissioning and handover stage of the authorised development, in accordance with the process set out in the approved CEMP.
(5) The HEMP must address the matters set out in the approved CEMP that are relevant to the operation and maintenance of the authorised development, and must contain—
(a)the environmental information needed for the future maintenance and operation of the authorised development;
(b)the long-term commitments to aftercare, monitoring and maintenance activities relating to the environmental features and mitigation measures that will be required to ensure the continued long-term effectiveness of the environmental mitigation measures and the prevention of unexpected environmental impacts during the operation of the authorised development; and
(c)a record of the consents, commitments and permissions resulting from liaison with statutory bodies.
(6) The authorised development must be operated and maintained in accordance with the HEMP.
Landscaping
5.—(1) The authorised development must be landscaped in accordance with a landscaping scheme which sets out details of all proposed hard and soft landscaping works and which has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority on matters related to its function.
(2) The landscaping scheme must reflect the mitigation measures set out in the REAC and must be based on the illustrative environmental masterplan annexed to the environmental statement.
(3) The landscaping scheme prepared under sub-paragraph (1) must include details of—
(a)location, number, species mix, size and planting density of any proposed planting;
(b)cultivation, importing of materials and other operations to ensure plant establishment;
(c)existing trees to be retained, with measures for their protection during the construction period;
(d)proposed finished ground levels; and
(e)implementation timetables for all landscaping works.
(4) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.
(5) Any tree or shrub planted as part of the landscaping scheme that, within a period of 5 years after planting, is removed, dies or becomes in the opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless the Secretary of State, following consultation with the relevant planning authority on matters related to its function, gives consent to a variation.
Contaminated land and groundwater
6.—(1) In the event that contaminated land, including groundwater, is found at any time when carrying out the authorised development which was not previously identified in the environmental statement, it must be reported as soon as reasonably practicable to the Secretary of State, the relevant planning authority and the Environment Agency, and the undertaker must complete a risk assessment of the contamination in consultation with the relevant planning authority and the Environment Agency.
(2) Where the undertaker determines that remediation of the contaminated land is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose must be submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority on matters related to its function and the Environment Agency.
(3) Remediation must be carried out in accordance with the approved scheme and programme.
Protected species
7.—(1) No part of the authorised development is to commence until for that part final pre-construction survey work has been carried out to establish whether European or nationally protected species are present on any of the land affected or likely to be affected by any part of the relevant works, or in any of the trees and shrubs to be lopped or felled as part of the relevant works.
(2) Following pre-construction survey work or at any time when carrying out the authorised development, where—
(a)a protected species is shown to be present, or where there is a reasonable likelihood of it being present;
(b)application of the relevant assessment methods used in the environmental statement show that a significant effect is likely to occur which was not previously identified in the environmental statement; and
(c)that effect is not addressed by any prior approved scheme of protection and mitigation established in accordance with this paragraph,
the relevant parts of the relevant works must cease until a scheme of protection and mitigation measures has been submitted to and approved in writing by the Secretary of State.
(3) The undertaker must consult with Natural England on the scheme referred to in sub-paragraph (2) prior to submission to the Secretary of State for approval, except where a suitably qualified and experienced ecologist, holding where relevant and appropriate a licence relating to the species in question, determines that the relevant works do not require a protected species licence.
(4) The relevant works under sub-paragraph (2) must be carried out in accordance with the approved scheme, unless otherwise agreed by the Secretary of State after consultation with Natural England, and under any necessary licences.
Surface and foul water drainage
8.—(1) No part of the authorised development is to commence until for that part written details of the surface and foul water drainage system, reflecting the mitigation measures set out in the REAC including means of pollution control, have been submitted and approved in writing by the Secretary of State following consultation with the relevant lead local flood authority and the Environment Agency on matters related to their functions.
(2) The surface and foul water drainage system must be constructed in accordance with the approved details, unless otherwise agreed in writing by the Secretary of State following consultation with the relevant lead local flood authority and the Environment Agency on matters related to their functions, provided that the Secretary of State is satisfied that any amendments to the approved details would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
Archaeological remains
9.—(1) Any archaeological remains not previously identified which are revealed when carrying out the authorised development must be retained in situ and reported by way of a notice to the relevant planning authority as soon as reasonably practicable from the date they are identified.
(2) No construction operations are to take place within 10 metres of the remains referred to in sub-paragraph (1) for a period of 14 days from the date of any notice served under sub-paragraph (1) unless otherwise agreed in writing by the relevant planning authority.
(3) If the relevant planning authority determines in writing that the archaeological remains require further investigation, no construction operations are to take place within 10 metres of the remains until provision has been made for the further investigation and recording of the remains in accordance with details to be submitted in writing to, and approved in writing by, the relevant planning authority.
Fencing
10. Any permanent and temporary fencing and other means of enclosure for the authorised development must be constructed and installed in accordance with the OEMP except where any departures from the OEMP are agreed in writing by the Secretary of State in connection with the authorised development.
Signage to Saredon Filling Station
11. No part of the authorised development constituting Work No. 36 is to commence unless the undertaker has first consulted with the local highway authority and the proprietors of the Saredon Filling Station regarding a scheme for the signage regarding that Work. The written details regarding Work No. 36 must be submitted and approved in writing by the Secretary of State and must include provision of directional signage to the Saredon Filling Station and the approved signage must be installed in full in accordance with the approved details before the new M6 Junction 11 circulatory carriageway is open for traffic.
Weight Restriction Warning Signs
12. Before the authorised development is open for traffic, two warning signs, of the type shown in diagram 818.4 (S12-28-22) as shown in Figure 5-3 of Chapter 3 of the Traffic Signs Manual (Regulatory Signs 2019 Edition) (or any equivalent sign in a subsequent edition) must be installed at the junction of Cannock Road with the Featherston Junction west roundabout and at the junction of Cannock Road with the new M6 Junction 11 circulatory carriageway indicating warning of the weight restriction imposed by article 11(9) (classification of roads etc.) and those signs are to be maintained by the undertaker unless otherwise agreed in writing between the parties.
Details of consultation
13.—(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule following consultation with another party, the undertaker must provide that other party with not less than 14 days for any response to the consultation and the details submitted to the Secretary of State for approval must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted and the undertaker’s response to that consultation.
(2) At the time of submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under sub-paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.
(3) The undertaker must ensure that any consultation responses are reflected in the details submitted to the Secretary of State for approval under this Schedule, but only where it is appropriate, reasonable and feasible to do so, taking into account considerations including, but not limited to, cost and engineering practicality.
(4) Where the consultation responses are not reflected in the details submitted to the Secretary of State for approval, the undertaker must state in the summary report referred to under sub-paragraph (1) the reasons why the consultation responses have not been reflected in the submitted details.
PART 2PROCEDURE FOR DISCHARGE OF REQUIREMENTS
Applications made under requirements
14.—(1) Where an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order the Secretary of State must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—
(a)the day immediately following that on which the application is received by the Secretary of State;
(b)the day immediately following that on which further information has been supplied by the undertaker under paragraph 15 (further information); or
(c)such longer period as may be agreed between the parties.
(2) Subject to sub-paragraphs (3) and (4), in the event that the Secretary of State does not determine an application within the period set out in sub-paragraph (1), the Secretary of State is taken to have granted all parts of the application (without any condition or qualification at the end of that period).
(3) Where the Secretary of State requests further information pursuant to paragraph 15, and no further information has been submitted eight weeks from that day immediately following that on which the application was received by the Secretary of State, the application or (if applicable) the part of the application to which the request for further information relates is taken to have been refused by the Secretary of State.
(4) Where—
(a)an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement included in this Order;
(b)the Secretary of State does not determine such application within the period set out in sub-paragraph (1); and
(c)the application is accompanied by a report from a body required to be consulted by the undertaker under the requirement that considers it likely that the subject matter of the application would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,
the application is taken to have been refused by the Secretary of State at the end of that period.
Further information
15.—(1) In relation to any part of an application made under this Schedule, the Secretary of State has the right to request such further information from the undertaker as is necessary to enable the Secretary of State to consider the application.
(2) In the event that the Secretary of State considers such further information to be necessary the Secretary of State must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates. In the event that the Secretary of State does not give such notification within that 21 business day period the Secretary of State is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.
(3) Where further information is requested under this paragraph in relation to part only of an application, that part is treated as a separate application from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 14 (applications made under requirements) and in this paragraph.
(4) In this paragraph, “business day” means a day other than Saturday, Sunday or bank or public holiday.
Anticipatory steps towards compliance with any requirement
16. If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part I of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provisions if they would have been valid steps for that purpose had they been taken after this Order came into force.
Articles 11 and 15
SCHEDULE 3CLASSIFICATION OF ROADS, ETC.
PART 1SPECIAL ROADS
(1) Road | (2) Extent |
|---|---|
| Proposed M54 Junction 1 free-flowing eastbound link | Between points 3/2 on sheet 3 and point 4/35 on sheet 4 of the classification of roads plans |
| Proposed M54 Junction 1 free-flowing westbound link | Between points 3/1 on sheet 3 and point 4/36 on sheet 4 of the classification of roads plans |
| Proposed Featherstone Junction northbound diverge slip road | Between points 4/1 on sheet 4 and point 4/2 on sheet 4 of the classification of roads plans |
| Proposed M54 Junction 1 westbound merge slip road | Between points 4/4 on sheet 4 and point 4/3 on sheet 4 of the classification of roads plans |
| Proposed realigned M54 Junction 1 westbound diverge slip road | Between points 4/8 on sheet 4 and point 4/9 on sheet 4 of the classification of roads plans |
| Proposed realigned M54 Junction 1 eastbound merge slip road | Between points 4/14 on sheet 4 and point 4/15 on sheet 4 of the classification of roads plans |
| Proposed realigned M6 Junction 11 northbound merge slip road | Between points 6/10 on sheet 6 and point 6/11 on sheet 6 of the classification of roads plans |
| Proposed realigned M6 Junction 11 southbound diverge slip road | Between points 6/12 on sheet 6 and point 6/13 on sheet 6 of the classification of roads plans |
| Proposed realigned M6 Junction 11 southbound merge slip road | Between points 5/8 on sheet 5 and point 6/14 on sheet 6 of the classification of roads plans |
| Proposed realigned M6 Junction 11 northbound diverge slip road | Between points 6/8 on sheet 6 and point 6/9 on sheet 6 of the classification of roads plans |
PART 2TRUNK ROADS
(1) Road | (2) Extent |
|---|---|
| Proposed Featherstone Junction west roundabout | Reference point 4/23 on sheet 4 of the classification of roads plans |
| Proposed Featherstone Junction overbridge | Between points 4/21 on sheet 4 and point 4/22 on sheet 4 of the classification of roads plans |
| Proposed Featherstone Junction northbound merge slip road | Between points 4/31 on sheet 4 and point 4/32 on sheet 4 of the classification of roads plans |
| Proposed Featherstone Junction southbound diverge slip road | Between points 4/33 on sheet 4 and point 4/34 on sheet 4 of the classification of roads plans |
| Proposed realigned A460 south | Between points 4/5 on sheet 4 and point 4/6 on sheet 4 of the classification of roads plans |
| Proposed M54 Junction 1 south roundabout | Reference point 4/7 on sheet 4 of the classification of roads plans |
| Proposed south-east roundabout connector | Between points 4/10 on sheet 4 and point 4/11 on sheet 4 of the classification of roads plans |
| Proposed Featherstone Junction east roundabout | Reference point 4/18 on sheet 4 of the classification of roads plans |
| Proposed dual-carriageway mainline link – northbound carriageway | Between points 4/35 on sheet 4 and point 6/1 on sheet 6 of the classification of roads plans |
| Proposed dual-carriageway mainline link – southbound carriageway | Between points 4/36 on sheet 4 and point 6/2 on sheet 6 of the classification of roads plans |
| Proposed Junction 11 roundabout | Reference point 6/7 on sheet 6 of the classification of roads plans |
| Proposed realigned A460 | Between points 6/15 on sheet 6 and point 6/16 on sheet 6 of the classification of roads plans |
| Proposed realigned A462 | Between points 6/17 on sheet 6 and point 6/18 on sheet 6 of the classification of roads plans |
PART 3CLASSIFIED ROADS
(1) Road | (2) Extent |
|---|---|
| Proposed realigned A460 north | Between points 4/24 on sheet 4 and point 4/25 on sheet 4 of the classification of roads plans |
| Existing A460 | Between points 4/25 on sheet 4 and point 6/3 on sheet 6 of the classification of roads plans |
| Proposed realigned Hilton Lane | Between points 5/1 on sheet 5 and point 5/2 on sheet 5 of the classification of roads plans |
| Proposed realigned A460 | Between points 6/3 on sheet 6 and point 6/4 on sheet 6 of the classification of roads plans |
PART 4UNCLASSIFIED ROADS
(1) Road | (2) Extent |
|---|---|
| Connection from proposed realigned A460 north to existing A460 | Between points 4/26 and point 4/27 and 4/28 on sheet 4 of the classification of roads plans |
| Link between proposed realigned A460 north and connection from proposed realigned A460 north to existing A460 | Between points 4/39 and point 4/40 on sheet 4 of the classification of roads plans |
| Dark Lane | Between points 4/37 on sheet 4 and point 4/38 on sheet 4 of the classification of roads plans |
| Realigned Mill Lane | Between points 6/5 on sheet 6 and point 6/6 on sheet 6 of the classification of roads plans |
| Proposed connection to Wolverhampton Road | Between points 6/19 on sheet 6 and point 6/20 on sheet 6 of the classification of roads plans |
| Proposed connection to A460 north of Junction 11 | Between points 6/21 on sheet 6 and point 6/22 on sheet 6 of the classification of roads plans |
PART 5SPEED LIMITS: NEW ROADS
(1) Road name and description | (2) Speed Limit |
|---|---|
Proposed M54 Junction 1 free-flowing eastbound link From the M54 along its length to where it meets the proposed dual-carriageway mainline link for a total distance of 915m As shown on sheet 3 and 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed M54 Junction 1 free-flowing westbound link From the proposed dual-carriageway mainline link along its length to where it meets the M54 for a total distance of 1560m As shown on sheet 3 and 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed Featherstone Junction northbound diverge slip road From the proposed dual-carriageway mainline link along its length to where it meets the M54 for a total distance of 585m As shown on sheet 3 and 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed M54 Junction 1 westbound merge slip road From the Proposed M54 Junction 1 free-flowing eastbound link along its length to where it meets the proposed Featherstone Junction west roundabout for a total distance of 333m As shown on sheet 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned M54 Junction 1 westbound diverge slip road From the proposed M54 Junction 1 south roundabout along its length to a point 285m from where it meets the M54 for a total distance of 327m As shown on sheet 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed Realigned M54 Junction 1 eastbound merge slip road From the proposed Featherstone Junction east roundabout along its length to where it meets the M54 for a total distance of 825m As shown on sheet 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed Featherstone Junction west roundabout As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed Featherstone Junction overbridge From the proposed Featherstone Junction east roundabout along its length to where it meets the proposed Featherstone Junction west roundabout for a total distance of 100m As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed Featherstone Junction northbound merge slip road From the proposed Featherstone Junction west roundabout along its length to where it meets the proposed dual-carriageway mainline link for a total distance of 480m As shown on sheet 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed Featherstone Junction southbound diverge slip road From the proposed Featherstone Junction east roundabout along its length to where it meets the proposed dual-carriageway mainline link for a total of 515m As shown on sheet 4 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned A460 south From the proposed M54 Junction 1 south roundabout along its length to a point 70m from the Hilton Cross roundabout for a total distance of 190m As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed M54 Junction 1 south roundabout As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed south-east roundabout connector From the proposed Featherstone Junction east roundabout along its length to where it meets the proposed M54 Junction 1 south roundabout for a total distance of 380m As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed Featherstone Junction east roundabout As shown on sheet 4 of the traffic regulation measures plans | 40 miles per hour |
Proposed realigned A460 north From the proposed Featherstone Junction west roundabout along its length to where it meets the junction with Dark Lane and The Avenue for a total distance of 462m As shown on sheet 4 of the traffic regulation measures plans | 30 miles per hour |
Connection from proposed realigned A460 north to existing A460 From the point of stopping up/turning head along its length to where it meets the proposed realigned A460 north for a total distance of 340m As shown on sheet 4 of the traffic regulation measures plans | 30 miles per hour |
Link between proposed realigned A460 north and connection from proposed realigned A460 north to existing A460 Along its length being a total distance of 90m As shown on sheet 4 of the traffic regulation measures plans | 30 miles per hour |
Proposed dual-carriageway mainline link – northbound carriageway From the proposed M54 Junction 1 free-flowing eastbound link along its length to where it meets the proposed M6 Junction 11 roundabout for a total distance of 2415m As shown on sheets 4, 5 and 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed dual-carriageway mainline link – southbound carriageway From the proposed M54 Junction 1 free-flowing westbound link along its length to where it meets the proposed M6 Junction 11 roundabout for a total distance of 1890m As shown on sheets 4, 5 and 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned Hilton Lane From the Hilton Lane/existing A460 junction along its length to a point 816m east of the Hilton Lane/existing A460 junction for a total distance of 816m As shown on sheet 5 of the traffic regulation measures plans | 30 miles per hour |
Proposed realigned M6 Junction 11 northbound merge slip road From the proposed M6 Junction 11 roundabout along its length to where it meets the M6 for a total distance of 610m As shown on sheet 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned M6 Junction 11 southbound diverge slip road From the proposed M6 Junction 11 roundabout along its length to where it meets the M6 for a total distance of 375m As shown on sheet 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned M6 Junction 11 southbound merge slip road From the proposed M6 Junction 11 roundabout along its length to where it meets the M6 for a total distance of 606m As shown on sheets 5 and 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed realigned M6 Junction 11 northbound diverge slip road From the proposed M6 Junction 11 roundabout along its length to where it meets the M6 for a total distance of 247m As shown on sheet 6 of the traffic regulation measures plans | 70 miles per hour |
Proposed M6 Junction 11 roundabout As shown on sheet 6 of the traffic regulation measures plans | 50 miles per hour |
Proposed realigned A460 (north of M6 Junction 11) From the proposed M6 Junction 11 roundabout along its length to point 200m south-east of M6 Junction 11 for a total distance of 390m As shown on sheet 6 of the traffic regulation measures plans | 50 miles per hour |
Proposed realigned A462 From the proposed M6 Junction 11 roundabout along its length to a point 200m south-east of M6 Junction 11 for a total distance of 200m As shown on sheet 6 of the traffic regulation measures plans | 60 miles per hour |
Proposed realigned A460 (south of M6 Junction 11) From the proposed M6 Junction 11 roundabout along its length to a point 350m west of M6 Junction 11 for a total distance of 350m As shown on sheet 6 of the traffic regulation measures plans | 50 miles per hour |
Realigned Mill Lane From the junction with the proposed realigned A460 (south of M6 Junction 11) along its length for a total distance of 200m As shown on sheet 6 of the traffic regulation measures plans | 60 miles per hour |
Proposed connection to Wolverhampton Road From the Junction with the proposed realigned A460 (north of M6 Junction 11) along its length for a total distance of 30m As shown on sheet 6 of the traffic regulation measures plans | 30 miles per hour |
Proposed connection to Wolverhampton Road From the junction with the proposed realigned A462 along its length for a total distance of 50m As shown on sheet 6 of the traffic regulation measures plans | 30 miles per hour |
PART 6PUBLIC RIGHTS OF WAY
(1) Public right of way | (2) Extent |
|---|---|
| Dark Lane (proposed Bridleway) | Between point 4/4 on sheet 4 and point 5/1 on sheet 5 of the streets, rights of way and access plans |
| Cannock Road (proposed footpath) | Between point 4/14 and point 4/15 on sheet 4 of the streets, rights of way and access plans |
PART 7CREATION OF NEW TRAFFIC REGULATION ORDERS
(1) Area | (2) Road name and description | (3) Speed limit |
|---|---|---|
| Staffordshire County Council | Proposed realigned Hilton Lane From a point 816m east of the Hilton Lane/existing A460 junction to a point 1445m east of the Hilton Lane/existing A460 junction for a total distance of 629m As shown on sheet 5 of the traffic regulation measures plans | 40 miles per hour |
PART 8VARIATION OF EXISTING TRAFFIC REGULATION ORDERS
(1) Parish(es) | (2) Road name and number | (3) Title of Order | (4) Variation |
|---|---|---|---|
| Hilton | A460 Cannock Road between points 4/37 and 5/8 as shown on the classification of roads plans | The Staffordshire County Council (Hilton Lane, Dark Lane and Old Warstone Lane, Hilton) (Prohibition of Heavy Commercial Vehicles or over 7.5 Tonnes Gross) Order 1991 | Shown as points 4/37 and 5/8 on sheets 4 and 5 of the classification of roads plans |
Article 13
SCHEDULE 4PERMANENT STOPPING UP OF STREETS, PUBLIC RIGHTS OF WAY AND PRIVATE MEANS OF ACCESS
PART 1STREETS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED
(1) Street to be stopped up | (2) Extent of stopping up | (3) New street to be substituted or provided |
|---|---|---|
| A460 Cannock Road west of M6 Junction 11 | Existing section of public road, to be stopped up between points A/7 and A/8 shown on sheet 6 of the streets, rights of way and access plans | Between points A/9 and point A/10 on sheet 6 of the streets, rights of way and access plans |
| Mill Lane | Existing section of public road, to be stopped up between points A/11 and A/12 shown on sheet 6 of the streets, rights of way and access plans | Between points A/13 and point A/14 on sheet 6 to point 6/6 on sheet 6 of the streets, rights of way and access plans |
PART 2STREETS TO BE STOPPED UP AND FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED
(1) Streets to be stopped up | (2) Extent of stopping up |
|---|---|
| Existing M54 Junction 1 eastbound merge slip road | Existing section of public road, to be stopped up between points A/1 and A/2 shown on sheet 4 of the streets, rights of way and access plans |
| Existing A460 connecting to north of existing M54 Junction 1 roundabout | Existing section of public road, to be stopped up between points A/3 and A/4 shown on sheet 4 of the streets, rights of way and access plans |
| Dark Lane | Existing section of public road, to be stopped up between points A/5 on sheet 4 and A/6 shown on sheet 5 of the streets, rights of way and access plans |
PART 3PUBLIC RIGHTS OF WAY TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED
(1) Public right of way to be stopped up | (2) Extent of stopping up | (3) New highway to be substituted or provided |
|---|---|---|
| Shareshill 5 Footpath adjacent to Hilton Lane | Existing public right of way between point 5/2 and 5/4 on sheet 5 of the streets, rights of way and access plans | A new footpath between points 5/2 and 5/12 on sheet 5, footpath to utilise Hilton Lane footway between points 5/12 and 5/3 on sheet 5 and a new footpath between points 5/3 and 5/4 on sheet 5 of the streets, rights of way and access plans |
PART 4PUBLIC RIGHTS OF WAY TO BE STOPPED UP AND FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED
(1) Public right of way to be stopped up | (2) Extent of stopping up |
|---|---|
| Saredon 1R/2214 Footpath | Full length of 70m between points 6/4 and 6/6 on sheet 6 of the streets, rights of way and access plans |
PART 5ALTERATIONS TO PUBLIC RIGHTS OF WAY
(1) Public rights of way to be altered | (2) Extent of alteration |
|---|---|
| Featherstone 3 Bridleway south west of M54 Junction 1 between points 4/1 and 4/3 on sheet 4 of the street, rights of way and access plans | To be altered between points 4/1 and 4/2 on sheet 4 of the streets, rights of way and access plans |
| Shareshill 1 Bridleway adjacent Brookfield Farm between points 5/5 and 5/6 on sheet 5 of the streets, rights of way and access plans | To be diverted across the proposed Brookfield Farm overbridge between points 5/5 and 5/6 on sheet 5 of the streets, rights of way and access plans |
| Shareshill 4 Footpath at the south west corner of M6 Junction 11 between points 6/1 and 6/2 on sheet 6 of the streets, rights of way and access plans | To be diverted up the proposed link road embankment between points 6/1 and 6/3 on sheet 6 of the streets, rights of way and access plans |
| Saredon 8 Footpath at the south west corner of M6 Junction 11 between points 6/2 and 6/4 on sheet 6 of the streets, rights of way and access plans | To be diverted up the proposed link road embankment between points 6/3 and 6/5 on sheet 6 of the streets, rights of way and access plans |
| Saredon 13 Bridleway at the north east corner of M6 Junction 11 between points 6/7 and 6/8 on sheet 6 of the streets, rights of way and access plans | To be diverted adjacent to the A460 north east of M6 Junction 11 between points 6/8 and 6/9 on sheet 6 of the streets, rights of way and access plans |
PART 6PRIVATE MEANS OF ACCESS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED
(1) Private means of access to be stopped up | (2) Extent of stopping up | (3) New private means of access to be substituted or provided |
|---|---|---|
| Access track to Tower Hill Farm | Existing access track shown between points 4/5, 4/6 and 4/7 on sheet 4 of the streets, rights of way and access plans | Proposed new access from Featherstone Junction east roundabout from point 4/8 to point 4/9 on sheet 4 of the streets, rights of way and access plans |
| Access track to Hilton Park | Existing access track shown between points 4/10 and 4/11 on sheet 4 of the streets, rights of way and access plans | Proposed new access from Featherstone Junction east roundabout from point 4/11 to point 4/12 on sheet 4 of the streets, rights of way and access plans |
| Proposed Brookfield Farm overbridge access track | Between points 5/8 and 5/10 on sheet 5 of the streets, rights of way and access plans | Proposed new access from 5/8 to 5/9 and heading east from 5/9 to 5/7 and heading west from 5/9 to 5/10 on sheet 5 of the streets, rights of way and access plans |
PART 7PROVISION OR ALTERATIONS TO PRIVATE MEANS OF ACCESS
(1) Private means of access to be provided or altered | (2) Extent of provision or alteration |
|---|---|
| Existing access from the A460 identified at point 4/10 on sheet 4 of the streets, rights of way and access plans | Provide new means of access between points 4/10 and 4/13 shown on sheet 4 of the streets, rights of way and access plans |
Article 23(2)
SCHEDULE 5LAND IN WHICH ONLY NEW RIGHTS ETC. MAY BE ACQUIRED
(1) Plot Reference Number shown on Land Plans | (2) Purpose for which rights over land may be acquired |
|---|---|
| Land Plans – Sheet 3 | |
| 3/2c, 3/2d, 3/6 | To construct, operate, access and maintain a balancing pond to provide attenuation and treatment systems and a new outfall connection to the existing ditch. Maintenance access off Brookhouse Lane (Work No. 56) |
| Land Plans – Sheet 4 | |
| 4/17a | To construct, operate, access, maintain, protect and decommission a diversion to an existing high pressure gas main and associated infrastructure (Work No. 68) |
| 4/20f | To construct, operate, access, maintain, protect and decommission a diversion to an existing high pressure gas main and associated infrastructure (Work No. 68) |
| 4/20g | To construct the Hilton Park access track and to construct, operate, access and maintain a diversion of an existing high pressure gas main and associated infrastructure (Work Nos. 21 and 68) |
| Land Plans – Sheet 5 | |
| 5/7, 5/11e, 5/11f and 5/13 | To construct, operate, access and maintain a balancing pond to provide attenuation and treatment systems to the south of Brookfield Farm and a new outfall connection to Watercourse 4. Maintenance access along an existing track that connects to Hilton Lane and via a new accommodation bridge (Work No. 59) |
| 5/16 | To construct, operate, access and maintain a culvert on Watercourse 4 adjacent to Brookfield Farm, a balancing pond to provide attenuation and treatment systems to the south of Brookfield Farm and a new outfall connection to Watercourse 4 as well as diversion of an overhead electricity cable and associated infrastructure. Maintenance access along an existing track that connects to Hilton Lane and via a new accommodation bridge. (Work Nos. 47, 59 and 70) |
| 5/17 | To construct, operate, access and maintain a diversion of an overhead electricity cable and associated infrastructure (Work No. 70) |
| Land Plans – Sheet 6 | |
| 6/31 | To access land for works to realign the existing public right of way Saredon 13 (Work No. 66) |
Article 23(4) and (5)
SCHEDULE 6MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF RESTRICTIVE COVENANTS
Compensation enactments
1. The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant as they apply in respect of compensation on the compulsory purchase of land and interests in land.
2.—(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).
(2) For section 5A(5A) (relevant valuation date) to the 1961 Act, substitute—
“(5A) If—
(a)the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 6 to the M54 to M6 Link Road Development Consent Order 2022);
(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 6 to the M54 to M6 Link Road Development Consent Order 2022) to acquire an interest in the land; and
(c)the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.”.
3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(9) has effect subject to the modifications set out in sub-paragraph (2).
(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—
(a)for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and
(b)for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.
Application of Part 1 of the 1965 Act
4. Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 25 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 20 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 23 (compulsory acquisition of rights and imposition of restrictive covenants)—
(a)with the modification specified in paragraph 5; and
(b)with such other modifications as may be necessary.
5.—(1) The modification referred to in paragraph 4(a) are as follows.
(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—
(a)the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or
(b)the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.
(3) For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—
“7. In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.
(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a)section 9(4) (failure by owners to convey);
(b)paragraph 10(3) of Schedule 1 (owners under incapacity);
(c)paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d)paragraphs 2(3) and 7(2) of Schedule 4 (common land),
are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
(5) Section 11(10) (powers of entry) of the 1965 Act is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 20), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A(11) (powers of entry: further notices of entry), 11B(12) (counter-notice requiring possession to be taken on specified date), 12(13) (unauthorised entry) and 13(14) (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.
(6) Section 20(15) (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
(7) Section 22 (interests omitted from purchase) of the 1965 Act is modified by article 25(4) so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.
(8) For Schedule 2A of the 1965 Act substitute—
“SCHEDULE 2ACOUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT
Introduction
1.—(1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 26 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) of the M54 to M6 Link Road Development Consent Order 2022 in respect of the land to which the notice to treat relates.
(2) But see article 27(3) (acquisition of subsoil and airspace only) of the M54 to M6 Link Road Development Consent Order 2021 which excludes the acquisition of subsoil or airspace only from this Schedule.
2. In this Schedule, “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
3. A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
4. A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.
Response to counter-notice
5. On receiving a counter-notice, the acquiring authority must decide whether to—
(a)withdraw the notice to treat,
(b)accept the counter-notice, or
(c)refer the counter-notice to the Upper Tribunal.
6. The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
7. If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.
8. If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.
9. If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.
Determination by Upper Tribunal
10. On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—
(a)in the case of a house, building or factory, cause material detriment to the house, building or factory, or
(b)in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
11. In making its determination, the Upper Tribunal must take into account—
(a)the effect of the acquisition of the right or the imposition of the covenant,
(b)the use to be made of the right or covenant proposed to be acquired or imposed, and
(c)if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
12. If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.
13. If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.
14.—(1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.
(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”.
Article 29
SCHEDULE 7LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN
(1) Plot Reference Number shown on Land Plans | (2) Purpose for which temporary possession may be taken | (3) Relevant part of the authorised development |
|---|---|---|
| Land Plans – Sheet 3 | ||
| 3/7a, 3/7b and 3/7c | Required to deliver ancient woodland enhancement measures | Work No. 76 as shown on sheets 3 and 4 of the works plans |
| Land Plans – Sheet 4 | ||
| 4/1e and 4/9a | Required for alignment of the existing A460 into the M54 Junction 1 south roundabout | Work No. 7 as shown on sheet 4 of the works plans |
| 4/1i | Required for the stopping up of the existing A460 and construction of a turning head facility | Work No. 11 as shown on sheet 4 of the works plans |
| 4/2 | Required to deliver ancient woodland enhancement measures | Work No. 76 as shown on sheets 3 and 4 of the works plans |
| 4/8 | Required for the diversion of utilities and association infrastructure to a new utilities’ corridor | Work No. 67 as shown on sheet 4 of the works plans |
| 4/13, 4/14a and 4/14c | Required for the alignment of the M54 Junction 1 eastbound merge slip road and the construction of an access for Tower Hill Farm connecting to the Featherstone Junction east roundabout | Work Nos. 12 and 20 as shown on sheet 4 of the works plans |
| 4/14i | Required for the construction of a free-flowing two lane carriageway, the Featherstone Junction east roundabout, a dual carriageway dumbbell link, new private means of access, the Featherstone Junction southbound diverge slip road and the diversion of a high pressure gas main | Work Nos. 2, 4, 13, 14, 20, 21, 22, 68 as shown on sheet 4 of the works plans |
| 4/17b, 4/18 | Required for the diversion of a high pressure gas main | Work No. 68 as shown on sheet 4 of the works plans |
| 4/20d | Required for habitat creation for visual screening and to mitigate for biodiversity loss and the installation of a replacement fence | Work No. 80 as shown on sheet 4 of the works plans |
| 4/22 | Required for the modification of an existing junction and removal of a right turn prohibition into Dark Lane | Work No. 73 as shown on sheets 4 and 5 of the works plans |
| Land Plans – Sheet 5 | ||
| 5/1 | Required for the modification of an existing junction and removal of a right turn prohibition into Dark Lane | Work No. 73 as shown on sheets 4 and 5 of the works plans |
| 5/6 | Required for the construction of new northbound and southbound dual carriageways to M6 Junction 11 the realignment of Hilton Lane and construction of an accommodation overbridge and realignment of access tracks to the south of Brookfield Farm | Work Nos. 25, 26, 27 and 28 as shown on sheets 4 to 6 of the works plans |
| 5/10 | Required for the construction of new northbound and southbound dual carriageways to M6 Junction 11, realignment of Hilton Lane and the realignment of public right of way Shareshill 5 | Work Nos. 25, 26, 27 and 63 as shown on sheets 4 to 6 of the works plans |
| 5/11a | Required for the construction of new northbound and southbound dual carriageways to M6 Junction11, realignment of Hilton Lane, construction of an accommodation overbridge and realignment of access tracks to the south of Brookfield Farm, installation of a new balancing pond and works to realign public right of way Shareshill 5 | Work Nos. 25, 26, 27, 28, 59 and 63 as shown on sheet 5 of the works plans |
| 5/11g | Required for the construction of a new northbound and southbound dual carriageways to M6 Junction 11, construction of an accommodation overbridge and realignment of access tracks to the south of Brookfield Farm and the diversion of an overhead electricity cable and associated infrastructure | Work No. 25, 26, 28 and 70 as shown on sheet 5 of the works plans |
| 5/14 | Required for the construction of northbound and southbound dual carriageways to M6 Junction 11 and an accommodation overbridge and realignment of access tracks | Work Nos. 25, 26 and 28 as shown on sheets 4 to 6 of the works plans |
| 5/25 | Required for the construction of new northbound and southbound dual carriageways to M6 Junction 11, realignment of Hilton Lane and the modification of the junction between the existing A460, New Road and Dark lane and the construction of a borrow pit including the excavation, working and restoration to win material required for the construction of the authorised development | Work Nos. 25, 26, 27 and 74 as shown on sheet 4, 5 and 6 of the works plans |
| Land Plans – Sheet 6 | ||
| 6/11b, 6/13, 6/18 and 6/19 | Required to realign the M6 Junction 11 northbound merge slip road | Work No. 33 as shown on sheet 6 of the works plans |
| 6/11k, 6/11l, 6/11m, 6/11n, 6/17r, 6/17q and 6/27 | Required for the demolition and removal of existing M6 Junction 11 structures and redundant sections of existing circulatory carriageway. Also required for the construction of a new M6 Junction 11 circulatory carriageway and associated infrastructure, the realignment of Wolverhampton Road and the realignment and widening by a single lane of the A460 southbound and northbound | Work Nos. 36, 38, 39 and 40 as shown on sheet 6 of the works plans |
| 6/12 | Required to realign Mill Lane | Work No. 30 as shown on sheet 6 of the works plans |
| 6/17f | Required for the demolition of existing structures at M6 Junction 11, and construction of new M6 Junction 11 circulatory carriageway including overbridges and portal gantries | Work No. 36 as shown on sheet 6 of the works plans |
| 6/17g, 6/20 and 6/22a | Required for the realignment of the M6 Junction 11 southbound diverge slip road | Work No. 35 as shown on sheet 6 of the works plans |
| 6/17h, 6/17i, 6/17j, 6/17k, 6/17m, 6/32a and 6/36 | Required for the realignment and widening by a single lane of the A460 southbound and northbound | Work No. 39 as shown on sheet 6 of the works plans |
| 6/25 | Required for the realignment of the M6 Junction 11 southbound merge slip road, the demolition and removal of existing M6 Junction 11 structures and redundant sections of existing circulatory carriageway. Also required for the construction of a new M6 Junction 11 circulatory carriageway and associated infrastructure. Required for the realignment of the A462 to M6 Junction 11 | Work Nos. 34, 36 and 37 as shown on sheet 5 and 6 of the works plans |
| 6/37 | Required for the realignment of the M6 Junction 11 southbound diverge slip road. Required for the demolition and removal of existing M6 Junction 11 structures and redundant sections of existing circulatory carriageway. Also required for the construction of a new M6 Junction 11 circulatory carriageway and associated infrastructure. Also required for the realignment and widening by a single lane of the A460 southbound and northbound and the realignment of the existing public right of way Saredon 13 | Work Nos. 35, 36, 39 and 66 as shown on sheet 6 of the works plans |
Articles 34 and 35
SCHEDULE 8HEDGEROWS AND TREES
PART 1HEDGEROWS
The hedgerow identifications in the table below are taken from Chapter 8: Biodiversity and Figure 8.3 of the environmental statement
(1) Hedgerow | (2) Relevant part of the authorised development | (3) Important Hedgerow |
|---|---|---|
| TN1 – Intact Hedge – Native Species – Rich | Work No. 66 | No |
| TN8 – Intact Hedge – Native Species – Poor | Work No. 35 | No |
| TN10 – Intact Hedge – Native Species – Rich | Work No. 35 | No |
| TN11 – Intact Hedge – Native Species – Poor | Work No. 30 | No |
| TN14 – Intact Hedge – Native Species – Rich | Work No. 30 | No |
| TN20 – Defunct Hedge – Native Species - | Work No. 72 | No |
| TN22 – Defunct Hedge – Native Species – Rich | Work No. 72 | No |
| TN23 – Intact Hedge – Native Species – Rich | Work No. 72 | Yes |
| TN29 – Intact Hedge – Native Species – Poor | Work No. 29 | No |
| TN35 – Intact Hedge – Native Species – Poor | Work Nos. 36 and 37 | No |
| TN37 – Defunct Hedge – Native Species – Poor | Work Nos. 34 and 85 | No |
| TN39 – Intact Hedge – Native Species – Poor | Work Nos. 25, 26, 32 and 36 | No |
| TN40 – Intact Hedge – Native Species – Poor | Work Nos. 25, 26, 32 and 36 | No |
| TN41 – Intact Hedge – Native Species – Rich | Work Nos. 25, 26 and 48 | Yes |
| TN68– Defunct Hedge – Native Species – Rich | Work Nos. 27 and 59 | No |
| TN71 – Intact Hedge – Native Species – Poor | Work Nos. 25, 26 and 27 | No |
| TN75 – Defunct Hedge – Native Species – Rich | Work Nos. 71 | No |
PART 2TREES SUBJECT TO TREE PRESERVATION ORDERS
The tree plan references in the table below are taken from the tree preservation order impact/removal plans
(1) Type of tree | (2) Relevant part of the authorised development | (3) TPO reference |
|---|---|---|
| T168 – Ash (Fraxinus excelsior) | Work No. 86 | TPO – 3/1957 |
| T46 – Ash (Fraxinus excelsior) | Work No. 11 | TPO – 3/1957 |
| T60 – Ash (Fraxinus excelsior) | Work No. 17 | TPO – 3/1957 |
| T237 – Atlantic Cedar (Blue) (Cedrus libani atlantica Glauca) | Work Nos. 27 and 69 | TPO – 3/1957 |
| T146 – Beech (Fagus sylvatica) | Work No. 16 | TPO – 3/1957 |
| T222 – Beech (Fagus sylvatica) | Work No. 69 | TPO – 3/1957 |
| T94 – Beech (Fagus sylvatica) | Work No. 16 | TPO – 3/1957 |
| G369 – Common Alder (Alnus glutinosa) | Work Nos. 25 and 48 | TPO – 56 and 58/1981 |
| T152 – Common Alder (Alnus glutinosa) | Work Nos. 22 and 26 | TPO – 3/1957 |
| W342 – Common Alder (Alnus glutinosa), Ash (Fraxinus excelsior), Crack Willow (Salix fragilis), Common Oak (Quercus robur) | Work Nos. 25, 26, 48 and 65 | TPO – 56 and 58/1981 |
| G346 – Common Alder (Alnus glutinosa), Crack Willow (Salix fragilis), Hawthorn (Crataegus monogyna) Common Oak (Quercus robur) | Work No. 26 | TPO – 56 and 58/1981 |
| G119 – Common Alder (Alnus glutinosa), Sycamore (Acer pseudoplatanus), Downy Birch (Betula pubescens) | Work Nos. 2 and 23 | TPO – 3/1957 |
| T101 – Common Lime (Tilia X europaea) | Work No. 16 | TPO – 3/1957 |
| T102 – Common Lime (Tilia X europaea) | Work No. 16 | TPO – 3/1957 |
| T113 – Common Lime (Tilia X europaea) | Work No. 16 | TPO – 3/1957 |
| T120 – Common Lime (Tilia X europaea) | Work No. 16 | TPO – 3/1957 |
| T110 – Common Oak (Quercus robur) | Work No. 16 | TPO – 3/1957 |
| T130 – Common Oak (Quercus robur) | Work No. 16 | TPO – 3/1957 |
| T145 – Common Oak (Quercus robur) | Work Nos. 4, 22 and 46 | TPO – 3/1957 |
| T242 – Common Oak (Quercus robur) | Work Nos. 24, 26 and 27 | TPO – 3/1957 |
| T367 – Common Oak (Quercus robur) | Work Nos. 25 and 48 | TPO – 56 and 58/1981 |
| T72 – Common Oak (Quercus robur) | Work No. 17 | TPO – 3/1957 |
| T75 – Common Oak (Quercus robur) | Work No. 17 | TPO – 3/1957 |
| T77 – Common Oak (Quercus robur) | Work No. 17 | TPO – 3/1957 |
| T78 – Common Oak (Quercus robur) | Work No. 17 | TPO – 3/1957 |
| T79 – Common Oak (Quercus robur) | Work Nos. 16 and 17 | TPO – 3/1957 |
| T81 - Sycamore (Acer pseudoplatanus) | Works Nos. 17 and 18 | TPO – 3/1957 |
| T84 – Common Oak (Quercus robur) | Work Nos. 4 and 22 | TPO – 3/1957 |
| T87 – Common Oak (Quercus robur) | Work Nos. 16 and 18 | TPO – 3/1957 |
| T88 – Common Oak (Quercus robur) | Work Nos. 4 and 22 | TPO – 3/1957 |
| T90 – Common Oak (Quercus robur) | Work Nos. 16 and 18 | TPO – 3/1957 |
| T91 – Common Oak (Quercus robur) | Work Nos. 4 and 22 | TPO – 3/1957 |
| T92 – Common Oak (Quercus robur) | Work Nos. 16 and 18 | TPO – 3/1957 |
| W512 – Common Oak (Quercus robur), Ash (Fraxinus excelsior), Sycamore (Acer pseudoplatanus), Lime (Tilia Sp.), Beech (Fagus sylvatica) | Work Nos. 16, 17, 18, 19 and 71 | TPO – 3/1957 |
| G234 - Common Oak (Quercus robur), Sycamore (Acer pseudoplatanus), Hawthorn (Crataegus monogyna) | Work Nos. 24, 25, 26 and 27 | TPO – 3/1957 |
| T183– Common Oak (Quercus robur) | Works Nos. 24 and 69 | TPO – 3/1957 |
| G184 - Common Oak (Quercus robur), Sycamore (Acer pseudoplatanus), Holly (Ilex aquifolium), other | Work Nos. 24, 25, 26 and 62 | TPO – 3/1957 |
| T140 – Downy Birch (Betula pubescens) | Work Nos. 2, 23 and 46 | TPO – 3/1957 |
| G374 – Hawthorn (Crataegus monogyna), Common Alder (Alnus glutinosa) | Work No. 36 | TPO – 56 and 58/1981 |
| G240 – Hawthorn (Crataegus monogyna), Holly (Ilex aquifolium) | Work Nos. 24, 26 and 27 | TPO – 3/1957 |
| T95 – Sessile Oak (Quercus petraea) | Work Nos. 4 and 22 | TPO – 3/1957 |
| T209 – Sweet Chestnut (Castanea sativa) | Work No. 86 | TPO – 3/1957 |
| G153 – Sycamore (Acer pseudoplatanus) | Work No. 16 | TPO – 3/1957 |
| T111 – Sycamore (Acer pseudoplatanus) | Work No. 16 | TPO – 3/1957 |
| T112 – Sycamore (Acer pseudoplatanus) | Work No. 16 | TPO – 3/1957 |
| T195 – Sycamore (Acer pseudoplatanus) | Work No. 86 | TPO – 3/1957 |
| T197 – Sycamore (Acer pseudoplatanus) | Work No. 86 | TPO – 3/1957 |
| T225 – Sycamore (Acer pseudoplatanus) | Work No. 69 | TPO – 3/1957 |
| T239 – Sycamore (Acer pseudoplatanus) | Work No. 25 | TPO – 3/1957 |
| T257 – Sycamore (Acer pseudoplatanus) | Work No. 74 | TPO – 3/1957 |
| T44 – Sycamore (Acer pseudoplatanus) | Work Nos. 45 and 68 | TPO – 3/1957 |
| T81 – Sycamore (Acer pseudoplatanus) | Work Nos. 17 and 18 | TPO – 3/1957 |
| T98 – Sycamore (Acer pseudoplatanus) | Work Nos. 16 and 19 | TPO – 3/1957 |
| T99 – Sycamore (Acer pseudoplatanus) | Work No. 16 | TPO – 3/1957 |
| T138 – Sycamore (Acer pseudoplatanus) | Work Nos. 2, 23 and 46 | TPO – 3/1957 |
| G74 – Sycamore (Acer pseudoplatanus), Common Alder (Alnus glutinosa) | Work No. 17 | TPO – 3/1957 |
| G265 – Sycamore (Acer pseudoplatanus), Common Oak (Quercus robur), Ash (Fraxinus excelsior), Holly (Iles aquifolium) | Work Nos. 24, 25, 26, 27 and 62 | TPO – 3/1957 |
| W212 – Sycamore (Acer pseudoplatanus), Common Oak (Quercus robur), Holly (Iles aquifolium), Scots Pine (Pinus sylvestris) | Work Nos. 62 and 69 | TPO – 3/1957 |
| W159 - Sycamore (Acer pseudoplatanus), Downy Birch (Betula pubescens), Common Alder (Alnus glutinosa), Beech (Fagus sylvatica) | Work Nos. 2, 4, 22, 23, 24, 25, 26, 46 and 62 | TPO – 3/1957 |
| G232 - Sycamore (Acer pseudoplatanus), Holly (Ilex aquifolium), Yew (Taxus baccata), Common Oak (Quercus robur) | Work Nos. 24 and 27 | TPO – 3/1957 |
| T122 – White Poplar (Populus alba) | Work No. 4, 22 and 46 | TPO – 3/1957 |
| T201 – Whitebeam (Sorbus aria) | Work No. 86 | TPO – 3/1957 |
| T180 – Willow (Salix sp.) | Work No. 86 | TPO – 3/1957 |
| W96 – Yew (Taxus baccata), Sycamore (Acer pseudoplatanus), Silver Birch (Betula pendula), Common Oak (Quercus robur) | Work Nos. 2, 4, 22 and 23 | TPO – 3/1957 |
| G36 – Silver Birch (Betula pendula), Common Oak (Quercus robur), Hawthorn (Crataegus monogyna) | Work Nos. 6 and 68 | TPO – 3/1957 |
| W516 - Sycamore (Acer pseudoplatanus), Birch (Betula sp.), Common Oak (Quercus robur), Common Beech (Fagus sylvatica), Sweet Chestnut (Castanea sativa), | Work No. 3 | TPO – 3/1957 |
| T97 - Scots Pine (Pinus sylvestris) | Work Nos. 2 and 22 | TPO – 3/1957 |
| T135 - Common Oak (Quercus robur) | Work No. 16 | TPO – 3/1957 |
Articles 31 and 39
SCHEDULE 9PROTECTIVE PROVISIONS
PART 1FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS
1.—(1) For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise identified in another Part of this Schedule or agreed in writing between the undertaker and the utility undertaker concerned.
(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and the utility undertaker concerned, where the benefit of this Order is transferred or granted to another person under article 8 (consent to transfer benefit of Order), any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between the utility undertaker concerned and the transferee or grantee (as the case may be).
(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to the utility undertaker concerned (but see paragraph 11(3)(b)).
2. In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means—
(a)
in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989(16)), belonging to or maintained by that utility undertaker;
(b)
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986(17) for the purposes of gas supply;
(c)
in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; and
(d)
in the case of a sewerage undertaker—
(i)
any drain or works vested in the undertaker under the Water Industry Act 1991(18); and
(ii)
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4)(19) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104(20) (agreement to adopt sewers, drains or sewage disposal works at a future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general inspection) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,
and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties;
“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;
“plan” includes 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—
(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;
(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, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
On street apparatus
3. 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 (street works in England and Wales) of the 1991 Act.
Apparatus in stopped up streets
4.—(1) Where any street is stopped up under article 13 (permanent stopping up and restriction of use of streets, public rights of way and private means of access), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that 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, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.
(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 12 (temporary stopping up and restriction of use of streets), a 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.
Protective works to buildings
5. The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.
Acquisition of land
6. 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.
Removal of apparatus
7.—(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 or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a 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 in question in accordance with sub-paragraphs (2) to (6).
(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, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed the utility 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 the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
Facilities and rights for alternative apparatus
8.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 42 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
9.—(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 apparatus the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.
(2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(4) If a utility 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 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(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 instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.
Expenses and costs
10.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2).
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 42 (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 utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (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 pipe or 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 utility undertaker in respect of works by virtue of sub-paragraph (1), 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 utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 or 7(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a)bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b)make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker,
by reason or in consequence of any such damage or interruption.
(2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to—
(a)any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents, or
(b)any part of the authorised development carried out by a utility undertaker in the exercise of any functions conferred by this Order pursuant to a transfer or grant under article 8 (consent to transfer benefit of Order).
(4) A utility undertaker 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 who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Co-operation
12. Where in consequence of the proposed construction of any part of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.
13. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 2FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS
14. For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.
15. In this Part of this Schedule—
“the 2003 Act” means the Communications Act 2003 (“the 2003 Act”)(21);
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act(22);
“electronic communications code network” means—
(a)
so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; and
(b)
an electronic communications network which the undertaker is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;
“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 of that code; and
“operator” means the operator of an electronic communications code network.
16. The exercise of the powers conferred by article 31 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
17.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—
(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or
(b)there is any interruption in the supply of the service provided by an operator,
the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 42 (arbitration).
(5) 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 damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.
(6) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 3FOR THE PROTECTION OF CADENT GAS LTD AS GAS UNDERTAKER
Application
18. For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect.
Interpretation
19. In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the reasonable satisfaction of Cadent to enable Cadent to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“Cadent” means Cadent Gas Limited and includes its successors in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986(23);
“Cadent’s undertaking” means the rights, duties and obligations of Cadent Gas Limited as a gas transporter within the meaning of Part 1 of the Gas Act 1986(24);
“commence” has the same meaning as in article 2(1) (interpretation) and commencement shall be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms commence and commencement include any below ground surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground conditions, the receipt and erection of construction plant and equipment, and non-intrusive investigations for the purpose of assessing ground conditions;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, shall require the undertaker to submit for Cadent’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” for the purposes of this Part of this Schedule have effect as if Cadent’s existing apparatus was authorised development and as if the term “maintain” includes protect and use, improve, landscape, preserve, decommission, refurbish or replace;
“plan” or “plans” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“rights” includes restrictive covenants and, in relation to decommissioned apparatus, the surrender of rights, release of liabilities and transfer of decommissioned apparatus; and
“specified works” means any of the authorised development or activities (including maintenance) undertaken in association with the authorised development which—
(a)
will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 24(2) (removal of apparatus) or otherwise; or
(b)
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 24(2) (removal of apparatus) or otherwise.
On Street Apparatus
20.—(1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act except for—
(a)paragraphs 21 (apparatus of Cadent in stopped up streets), 26 (retained apparatus: protection of Cadent), 27 (expenses) and 28 (indemnity); and
(b)where sub-paragraph (2) applies, paragraphs 24 (removal of apparatus) and 25 (facilities and rights for alternative apparatus).
(2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.
(3) Paragraph 27 (expenses) does not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—
(a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and
(b)the allowable costs are to be borne by the undertaker and Cadent in such proportions as may be prescribed by any such regulations.
Apparatus of Cadent in stopped up streets
21.—(1) Where any street is stopped up under article 13 (permanent stopping up and restriction of use of streets, public rights of way and private means of access), if Cadent has any apparatus in the street or accessed via that street Cadent is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to Cadent, or procure the granting to Cadent of, legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph affects any right of the undertaker or of Cadent to require the removal of that apparatus under paragraph 24 (removal of apparatus).
(2) Notwithstanding the temporary stopping up, alteration, diversion or restriction of use of any street under the powers of article 12 (temporary stopping up and restriction of use of streets), Cadent will be at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as it would have been entitled to do immediately before such temporary stopping up, alteration, diversion or restriction of use in respect of any apparatus which at the time of the stopping up or diversion was in that street.
Protective works to buildings
22. The undertaker must exercise the powers conferred by article 18 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent, such consent not to be unreasonably withheld or delayed.
Acquisition of land
23.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker may not appropriate or acquire any interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of Cadent otherwise than by agreement.
(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance of any part of the authorised development (or in such other timeframe as may be agreed between Cadent and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Cadent or affect the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent and variations upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised development or maintenance thereof.
(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus, including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.
(4) Any agreement or consent granted by Cadent under paragraph 26 (retained apparatus: protection of Cadent) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
(5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ, the undertaker must accept a surrender of any existing easement or other interest of Cadent in such decommissioned apparatus and release Cadent from all liabilities in respect of such de-commissioned apparatus from the date of such surrender.
(6) Where the undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 24 (removal of apparatus) do not apply, the undertaker must, unless Cadent agrees otherwise—
(a)retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and
(b)(where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.
Removal of apparatus
24.—(1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 23 (acquisition of land), the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the facilities and the rights referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5).
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Cadent advance written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order, Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 25(1) (facilities and rights for alternative apparatus) below) the necessary facilities and rights—
(a)for the construction of alternative apparatus; and
(b)subsequently for the maintenance of that apparatus.
(3) If the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, Cadent 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 assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Cadent and the undertaker.
(5) Cadent must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to Cadent of such facilities and rights as are referred to in sub-paragraph (2) or (3), then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.
Facilities and rights for alternative apparatus
25.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Cadent facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by Cadent.
(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed then the terms and conditions to which those facilities and rights are subject in the matter may be referred to arbitration in accordance with paragraph 32 (arbitration) and the arbitrator must make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection of Cadent
26.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works.
(2) The plan to be submitted to Cadent under sub-paragraph (1) must include a method statement and describe—
(a)the exact position of the works;
(b)the level at which these are proposed to be constructed or renewed;
(c)the manner of their construction or renewal including details of excavation, positioning of plant etc.;
(d)the position of all apparatus;
(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and
(f)any intended maintenance regimes.
(3) The undertaker must not commence any specified works until Cadent has given written approval of the plan so submitted (and the ground monitoring scheme if required).
(4) Any approval of Cadent given under sub-paragraph (3)—
(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5); and
(b)must not be unreasonably withheld or delayed and Cadent must meaningfully engage with the undertaker within 28 days of the date of submission of the plan under sub-paragraph (1).
(5) Cadent may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Specified works must only be executed in accordance with—
(a)the plan submitted under sub-paragraph (1) (and ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and Cadent; and
(b)all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works.
(7) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.
(8) If Cadent, 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 18 to 20 and 23 to 25 apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 24(2) (removal of apparatus).
(9) 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 specified works, a new plan (and ground monitoring scheme if required), instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan (and ground monitoring scheme if required).
(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development (including such an event attributable to its maintenance)—
(a)the undertaker must implement an appropriate ground mitigation scheme; and
(b)Cadent retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 27 (expenses).
(11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works and must comply with the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances.
(12) In this paragraph, “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.
Expenses
27.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand all charges, costs and expenses reasonably anticipated or reasonably incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised development including without limitation—
(a)any costs reasonably incurred by or compensation properly paid by Cadent in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—
(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 24(3) (removal of apparatus) if it elects to do so; or
(ii)exercising any compulsory purchase powers under this Order transferred to or benefitting Cadent;
(b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
(c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d)the approval of plans;
(e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule;
(g)any watching brief pursuant to paragraph 26(6) (retained apparatus: protection of Cadent).
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 32 (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 Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b)where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) Any amount which apart from this sub-paragraph would be payable to Cadent in respect of works by virtue of sub-paragraph (1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Cadent 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.
Indemnity
28.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised development (including works carried out under article 18 (protective work to buildings)) by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will—
(a)bear and pay on demand accompanied by an invoice or claim from Cadent, the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and
(b)indemnify Cadent for any other expenses, loss, demands, proceedings, damages, claims, penalty, compensation or costs properly incurred by, paid by or recovered from Cadent, by reason or in consequence of any such damage or interruption or Cadent becoming liable to any third party as aforesaid other than arising from any default of Cadent.
(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a)any damage or interruption to the extent that it is attributable to the neglect or default of Cadent, its officers, servants, contractors or agents;
(b)any part of the authorised development carried out by Cadent in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 8 (consent to transfer or benefit of Order); and
(c)any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable at the commencement of the relevant works referred to in sub-paragraph (1).
(4) Cadent must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
Enactments and agreements
29. Except where in this Part of this Schedule provides otherwise or by agreement in writing between Cadent and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Co-operation
30.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or Cadent requires the removal of apparatus under paragraph 24(2) (removal of apparatus) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 26 (retained apparatus: protection of Cadent), the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by Cadent or the taking of action by Cadent, it must not be unreasonably withheld or delayed.
Access
31. If in consequence of any agreement reached in accordance with paragraph 23(1) (acquisition of land) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
32. Save for differences or disputes arising under paragraph 24(2) and (4) (removal of apparatus) and 26(11) (retained apparatus: protection of Cadent) any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 42 (arbitration).
Notices
33. Notwithstanding article 41 (service of notices) the plans submitted to Cadent by the undertaker pursuant to sub-paragraph 26(1) (retained apparatus: protection of Cadent) must be sent to Cadent Gas Limited Plant Protection via email to plantprotection@cadentgas.com as well as by post to Plant Protection Limited, Cadent Gas Limited, Brick Kiln Street, Hinckley, Leicestershire, LE10 0NA or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 4FOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY UNDERTAKER
Application
34.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid.
(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 8 (consent to transfer benefit of Order)—
(a)any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and
(b)written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant.
(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid (but see paragraph 44(3)(b)).
Interpretation
35. In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the reasonable satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989(25), belonging to or maintained by National Grid together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) (interpretation) and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;
“commence” and “commencement” in paragraph 42 (retained apparatus: protection of electrical undertaker) of this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment,
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;
“National Grid” means National Grid Electricity Transmission Plc or any successor as a licence holder within the meaning of Part 1 of the Electricity Act 1989;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
(a)
will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 40(2) (removal of apparatus) or otherwise; or
(b)
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 40(2) or otherwise.
On street apparatus
36. Except for paragraphs 37 (apparatus of National Grid in stopped up streets), 42 (retained apparatus: protection of electricity undertaker), 43 (expenses) and 44 (indemnity) which will apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus of National Grid in stopped up streets
37.—(1) Where any street is stopped up under article 13 (permanent stopping up and restriction of use of streets, public rights of way and private means of access), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 40 (removal of apparatus) or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 42 (retained apparatus: protection of electricity undertaker).
(2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 12 (temporary stopping up and restriction of use of streets), National Grid 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.
Protective works to buildings
38. The undertaker must exercise the powers conferred by article 18 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid (such consent not to be unreasonably withheld).
Acquisition of land
39.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any interest in land or apparatus or override any easement or other interest of National Grid otherwise than by agreement.
(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or affect the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it will be the responsibility of the undertaker to procure and secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) The undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.
(4) Any agreement or consent granted by National Grid under paragraph 42 (retained apparatus: protection of electricity undertaker) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
Removal of apparatus
40.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs (2) to (5).
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its reasonable satisfaction (taking into account paragraph 41(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—
(a)for the construction of alternative apparatus in other land of, or secured by, the undertaker; and
(b)subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.
(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to National Grid of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
Facilities and rights for alternative apparatus
41.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.
(2) If the facilities and rights to be afforded by the undertaker under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the matter may be referred to arbitration in accordance with paragraph 48 (Arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection of electricity undertaker
42.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity tower foundations.
(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 involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—
(a)the exact position of the works;
(b)the level at which these are proposed to be constructed or renewed;
(c)the manner of their construction or renewal including details of excavation, positioning of plant;
(d)the position of all apparatus;
(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;
(f)any intended maintenance regimes; and
(g)an assessment of risks of rise of earth issues.
(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—
(a)details of any cable trench design including route, dimensions and clearance to pylon foundations;
(b)demonstration that pylon foundations will not be affected prior to, during and post construction;
(c)details of load bearing capacities of trenches;
(d)details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;
(e)a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;
(f)written details of the operations and maintenance regime for any cable, including frequency and method of access;
(g)assessment of earth rise potential if reasonably required by National Grid’s engineers; and
(h)evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to 26 tonnes in weight.
(4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted.
(5) Any approval of National Grid required under sub-paragraphs (4)—
(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and
(b)must not be unreasonably withheld.
(6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(7) Works executed under sub-paragraphs (2) or (3) must be executed in accordance with the plan submitted under sub-paragraph (1) or, as relevant, sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.
(8) Where under sub-paragraph (6) National Grid requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(9) If National Grid in accordance with sub-paragraphs (6) or (8) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 34 to 36 and 39 to 41 apply as if the removal of the apparatus had been required by the undertaker under paragraph 40(2) (removal of apparatus).
(10) 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 specified 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.
(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances.
(12) In sub-paragraph (11) “emergency works” means works whose execution at the time when they are executed is required in order to put an end to or to prevent the occurrence of circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.
Expenses
43.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—
(a)any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—
(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 40(3) (removal of apparatus); or
(ii)exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;
(b)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;
(c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d)the approval of plans;
(e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 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 National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b)where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) Any amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph (1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on National Grid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
Indemnity
44.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—
(a)bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and
(b)indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party as aforesaid other than arising from any default of National Grid.
(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a)any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents; and
(b)any part of the authorised works carried out by National Grid in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 8 (consent to transfer benefit of Order).
(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.
(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.
(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.
Enactments and agreements
45. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Co-operation
46.—(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 40(2) (removal of apparatus) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 42 (retained apparatus: protection of electricity undertaker), the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever the undertaker’s or National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this schedule, or agreement is required to be reached between the parties under this Part of this Schedule, it must not be unreasonably withheld or delayed.
Access
47. If in consequence of the agreement reached in accordance with paragraph 39(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
48. Save for differences or disputes arising under paragraphs 40(2) or (4) and 41(1), any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 42 (arbitration).
Notices
49. Notwithstanding article 41 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 42 (retained apparatus: protection of electricity undertaker) must be sent to National Grid Plant Protection at plantprotection@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 5FOR THE PROTECTION OF WESTERN POWER DISTRIBUTION LIMITED (WEST MIDLANDS) PLC AS ELECTRICITY UNDERTAKER
Application
50. For the protection of Western Power Distribution Limited (West Midlands) plc the following provisions, unless otherwise agreed in writing between the undertaker and Western Power Distribution Limited (West Midlands) plc, have effect.
Interpretation
51. In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable WPD to fulfil its statutory functions in a manner not less efficient than previously and where the context requires includes any part of such alternative apparatus;
“alternative rights” means all and any necessary legal easements, leases, consents, or permissions required by WPD in order to permit or authorise a diversion and to permit or authorise WPD to lay, keep, operate, maintain, adjust, repair, alter, relay, renew, supplement, inspect, examine, test and remove the alternative apparatus;
“apparatus” means electric lines or electrical plant as defined in the Electricity Act 1989(26), belonging to or maintained by WPD;
“diversion” means an alteration to the WPD Network in order to enable or facilitate the authorised development;
“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;
“plan” or “plans” includes all designs, drawings, specifications, method statements, programmes, calculations, risk assessments and other documents that are reasonably necessary to properly and sufficiently describe and assess the works to be executed;
“specified work” means so much of any of the authorised development that is carried out within 6 metres of any apparatus;
“WPD” means Western Power Distribution (West Midlands) plc (company number 03600574) whose registered office is at Avonbank, Feeder Road, Bristol, BS2 0TB;
“WPD Network” means WPD’s distribution network operated pursuant to its distribution licence issued pursuant to section 6(27) of the Electricity Act 1989.
Precedence of 1991 Act in respect of apparatus in streets
52. This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and WPD are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
No acquisition except by agreement
53. 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.
Removal of apparatus
54.—(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 or requires that apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of WPD to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, alternative rights acquired or granted for the alternative apparatus and the alternative apparatus is in operation and access to it has been provided if necessary to the reasonable satisfaction of WPD in accordance with sub-paragraphs (2) to (10) or with such alternative or supplementary provisions as the undertaker and WPD may agree between them.
(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 WPD written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed.
(3) If as a consequence of the exercise of any of the powers conferred by this Order WPD reasonably needs to remove or divert any of its apparatus and the removal of that apparatus has not been required by the undertaker under sub-paragraph (2) then WPD must give to the undertaker written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and this Part has effect as if the removal or diversion of such apparatus had been required by the undertaker under sub-paragraph (2).
(4) If as a consequence of the removal or diversion of apparatus under sub-paragraph (2) or (3) alternative apparatus is to be constructed in land owned or controlled by the undertaker then the undertaker must afford to WPD the necessary facilities and alternative rights for the construction of alternative apparatus in the other land owned or controlled by the undertaker.
(5) If the undertaker or WPD requires to remove or divert any apparatus placed within the Order land and alternative apparatus is to be constructed in land not owned or controlled by the undertaker as a consequence of the removal or diversion of apparatus then WPD shall use its reasonable endeavours to obtain alternative rights in the land in which the alternative apparatus is to be constructed.
(6) If alternative apparatus is to be constructed in land not owned or controlled by the undertaker and WPD is unable to obtain such alternative rights as are mentioned in sub-paragraph (5), the undertaker and WPD shall consider whether there is an alternative engineering solution that can achieve the diversion without the need for the use of compulsory powers. Should such an alternative engineering solution not be practicable and deliverable in a reasonable timescale and at a reasonable cost (which shall be determined by the undertaker acting reasonably), WPD shall on the transfer of the benefit of the necessary provisions of this Order to WPD use the powers of compulsory acquisition set out in this Order or the Electricity Act 1989 to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed in accordance with a timetable agreed between WPD and the undertaker.
(7) Any alternative apparatus required pursuant to sub-paragraphs (2) or (3) must be constructed in such manner and in such line or situation as may be agreed between WPD and the undertaker or in default of agreement settled in accordance with paragraph 59 (expert determination).
(8) WPD must, after the alternative apparatus to be provided or constructed has been agreed or settled pursuant to paragraph 59 (expert determination), and after the acquisition by or grant to WPD of any such facilities and alternative rights as are referred to in sub-paragraphs (2) to (6), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required to be removed under the provisions of this Part of this Schedule.
(9) Regardless of anything in sub-paragraph (8), if the undertaker gives notice in writing to WPD that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by WPD, must be executed by the undertaker—
(a)in accordance with plans and specifications and in such line or situation agreed between the undertaker and WPD, or, in default of agreement, determined in accordance with paragraph 59 (expert determination); and
(b)without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of WPD.
(10) Nothing in sub-paragraph (9) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus or alternative apparatus, or execute any filling around the apparatus or alternative apparatus (where the apparatus or alternative apparatus is laid in a trench) within 600 millimetres of the point of connection or disconnection.
Facilities and rights for alternative apparatus
55.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to WPD facilities and alternative rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and alternative rights are to be granted upon such terms and conditions as may be agreed between the undertaker and WPD or in default of agreement settled in accordance with paragraph 59 (expert determination).
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, the expert must—
(a)give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker;
(b)have regard to the terms and conditions, if any, applicable to the apparatus for which the alternative apparatus is to be substituted;
(c)have regard to WPD’s ability to fulfil its service obligations and comply with its licence conditions; and
(d)have regard to the standard form rights WPD ordinarily secures for the type of alternative apparatus to be constructed in the circumstances similar to the authorised development.
(3) If the facilities and alternative rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and alternative rights are to be granted, are in the opinion of the expert less favourable on the whole to WPD than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the expert must make such provision for the payment of compensation by the undertaker to WPD as appears to the expert to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
56.—(1) Not less than 60 days before the undertaker intends to start the execution of any specified work where the removal of the apparatus in question has not been required under paragraph 54 (removal of apparatus), the undertaker shall submit to WPD a plan of the works to be executed. Any submission must note the time limits imposed on WPD under sub-paragraph (3).
(2) Subject to sub-paragraph (3) the undertaker shall not commence any works to which sub-paragraph (1) applies until WPD has identified any reasonable requirements it has for the alteration or protection of the apparatus, or for securing access to it.
(3) If by the expiry of 60 days beginning with the date on which a plan under sub-paragraph (1) is submitted WPD has not advised the undertaker in writing of any reasonable requirements for the alteration or protection of the apparatus, or for securing access to it, it shall be deemed not to have any such requirements and the undertaker shall be at liberty to proceed with the works.
(4) The works referred to in sub-paragraph (1) must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with any reasonable requirements as may be notified in accordance with sub-paragraph (2) by WPD and WPD shall be entitled to watch and inspect the execution of those works.
(5) At all times when carrying out the authorised development the undertaker must comply with WPD’s Avoidance of Danger from Electricity Overhead Lines and Underground Cables (2014), the Energy Network Association’s A Guide to the Safe Use of Mechanical Plant in the Vicinity of Electricity Overhead Lines (undated), the Health and Safety Executive’s GS6 Avoiding Danger from Overhead Power Lines and the Health and Safety Executive’s HSG47 Avoiding Danger from Underground Services (Third Addition) (2014) as the same may be replaced from time to time.
(6) If WPD, in accordance with sub–paragraph (2) and in consequence of the works proposed by the undertaker, reasonably requires the removal or diversion of any apparatus and gives written notice to the undertaker of that requirement, this Part of this Schedule applies as if the removal or diversion of the apparatus had been required by the undertaker under paragraph 54(2) (removal of apparatus).
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 60 days before commencing the execution of any 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.
(8) The undertaker is not required to comply with sub–paragraph (1) in a case of emergency but in that case it must give to WPD notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with any reasonable requirements stipulated by WPD under sub-paragraph (2) and with sub–paragraphs (4) and (5) in so far as is reasonably practicable in the circumstances. Nothing in this sub-paragraph prevents WPD from exercising its rights under sub-paragraph (6).
Expenses and costs
57.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to WPD the proper and reasonable expenses reasonably incurred by WPD in, or in connection with, the inspection, removal, diversion, alteration or protection of any apparatus, the construction of any alternative apparatus and the acquisition or grant of alternative rights for the alternative apparatus, arising as a result of the powers conferred upon the undertaker pursuant to this Order.
(2) The value of any apparatus removed under the provisions of this Part of this Schedule must 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 WPD requires that alternative apparatus of better type, of greater capacity, of greater dimensions or at a greater depth is necessary in substitution for existing apparatus which for WPD’s network requirements is over and above what is necessary as a consequence of and for the purpose of the authorised development, WPD shall reduce the cost of such additional requirements from the amount payable by the undertaker pursuant to sub-paragraph (1).
(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 utility undertaker in respect of works by virtue of sub-paragraph (1), 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 utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
58.—(1) Subject to sub-paragraph (2), if by reason or in consequence of the construction of any specified work or any subsidence resulting from any of those works any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of WPD the undertaker is to—
(a)bear and pay the cost reasonably incurred by WPD in making good such damage or restoring the supply; and
(b)reimburse WPD for any other expenses, loss, damages, penalty or costs reasonably and properly incurred by WPD, 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 WPD, its officers, servants, contractors or agents.
(3) WPD 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, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) WPD’s liability to the undertaker for negligence or breach of contract, in respect of each diversion, shall be limited to the value of that diversion and WPD shall not otherwise be liable to the undertaker for any losses or costs incurred by the undertaker resulting from delays to the authorised development as a result of its failure to undertake works to deliver any alternative apparatus.
Expert determination
59.—(1) Article 42 (arbitration) applies to any difference as to the legal interpretation of this Part of this Schedule and as provided for in sub–paragraph (7).
(2) Save as provided for in sub–paragraph (1) or sub–paragraph (7) any difference under this Part of this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers or the President of the Institution of RICS or the President of the Institution of Engineering and Technology (as relevant and agreed between WPD and the undertaker, both acting reasonably and without delay).
(3) All parties involved in settling any difference must use best endeavours to do so within 14 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 21 days of the notification of the dispute.
(4) The costs and fees of the expert and the costs of WPD and the undertaker are payable by the parties in such proportions as the expert may determine. In the absence of such determination the costs and fees of the expert are payable equally by the parties who shall each bear their own costs.
(5) The expert must—
(a)invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 14 days of the expert’s appointment;
(b)permit a party to comment on the submissions made by the other party within 7 days of receipt of the submissions;
(c)issue a decision within 14 days of receipt of the submissions under sub-paragraph (b); and
(d)give reasons for the decision.
(6) The expert must consider where relevant—
(a)the development outcome sought by the undertaker;
(b)the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;
(c)the nature of the power sought to be exercised by the undertaker;
(d)the effectiveness, cost and reasonableness of proposals for mitigation arising from any party;
(e)WPD’s service obligations and licence conditions; and
(f)any other important and relevant consideration.
(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 42.
Article 40
SCHEDULE 10DOCUMENTS TO BE CERTIFIED
The reference to a document in the table with a numbered regulation is a reference to the regulation as numbered in the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009.
(1) Document | (2) Document Reference | (3) Revision |
|---|---|---|
| Book of Reference | TR010054/APP/4.3 | P09 |
| Environmental Statement – Regulation 5(2)(d) | TR010054/APP/6.1, with updated Biodiversity Chapter 8 and Noise and Vibration Chapter 11 | 1 |
| Environmental Statement Addendum | TR010054/APP/8.6 | 1 |
| Outline Environmental Management Plan | TR010054/APP/6.11 | 5 |
| Location Plan – Regulation 5(2)(o) | TR010054/APP/2.1 | P04 |
| Land Plans – Regulation 5(2)(i) and (4) | TR010054/APP/2.2 | P05 |
| Works Plans – Regulation 5(2)(j) and (4) | TR010054/APP/2.4 | P04 |
| General Arrangement Scheme Layout – Regulation 5(2)(o) | TR010054/APP/2.5 | P04 |
| Streets, Rights of Way and Access Plans – Regulation 5(2)(k) and (4) | TR010054/APP/2.7 | P05 |
| Classification of Roads Plans – Regulation 5(2)(o) | TR010054/APP/2.9 | P04 |
| Engineering Drawings and Sections – Regulations 5(2)(o) and (4) and 6(2) | TR010054/APP/2.10 | P03 |
| Tree Preservation Order/Impact Removal Plans | TR010054/APP/6.8 | 3 |
| Habitats Regulations Assessment – Regulation 5(2)(g) | TR010054/APP/6.9 | 2 |
| Statutory Nuisance Statement – Regulation 5(2)(f) | TR010054/APP/6.10 | 1 |
(1)
Section 22 was substituted by S.I. 2013/1883 and amended by section 1(6) of, and paragraph 153 of Schedule 1 to the Infrastructure Act 2015 (c. 7).
(2)
Section 115(2) was amended by section 160(1) and (3) of the Housing and Planning Act 2016 (c. 22). There are other amendments to section 115(2) which are not relevant to this Order.
(3)
(4)
1990 c. 43. Section 78A was inserted by section 57 of the Environment Act 1995 (c. 25) and amended by section 86(2) of the Water Act 2003 (c. 37).
(5)
(6)
(7)
(8)
(9)
(10)
Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No.1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.
(11)
Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.
(12)
Section 11B was inserted by section 187(2) of the Housing and Planning Act 2016.
(13)
Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23).
(14)
Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).
(15)
Section 20 was amended by paragraph 4 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.
(16)
1989 c. 29. The definition of “electrical plant” (in section 64) was amended by paragraphs 24 and 38(1) and (3) of Schedule 6 to the Utilities Act 2000 (c. 27).
(17)
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 to, the Utilities Act 2000 (c. 27), sections 149(1) and (5) and section 197(9) of and Part 1 of Schedule 23 to, the Energy Act 2004 (c. 20) and S.I. 2011/2704.
(18)
(19)
Section 102(4) was amended by section 96(1)(c) of the Water Act 2003 (c. 37) and paragraph 90 of Schedule 7 to the Water Act 2014 (c. 21).
(20)
Section 104 was amended by sections 96(4) of, and Part 3 of Schedule 9 to, the Water Act 2003, section 42(3) of the Flood and Water Management Act 2010 (c. 29) and section 11(1) and (2) of, and paragraphs 2 and 91 of Schedule 7 to the Water Act 2014.
(21)
(22)
See section 106, which was amended by section 4(3) to (9) of the Digital Economy Act 2017 (c. 30).
(23)
(24)
See section 7(1) as amended by section 76(2) of the Utilities Act 2000 (c. 27).
(25)
1989 c. 29. The definition of “electrical plant” (in section 64) was amended by section 108 of, and paragraphs 24 and 38(1) and (3) of Schedule 6 to, the Utilities Act 2000 (c. 27).
(26)
1989 c. 29. The definition of “electrical plant” (in section 64) was amended by section 108 of, and paragraphs 24 and 38(1) and (3) of Schedule 6 to the Utilities Act 2000 (c. 27).
(27)
Section 6 was amended by section 30 of the Utilities Act 2000, sections 89(3), 136(1) and (2), 145(5), (6) and (7) and 198(2) of, and paragraph 5 of Schedule 19 and Part 1 of Schedule 23 to the Energy Act 2004 (c. 20), section 121(5)(c) of, and paragraph 3 of Schedule 1 to the Energy Act 2011 (c. 16), S.I 2011/2704 and S.I. 2012/2400.
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