The Heathrow Express Railway Extension Order 2002

SCHEDULES

Articles 2(1) and 4

SCHEDULE 1 SCHEDULED WORKS

In the London Borough of Hillingdon—

• Work No. 1A—A railway (2,280 metres in length in tunnel) commencing by a junction with Work No. 5 (in tunnel) authorised by the Heathrow Express Railway Act 1991 at a point, at chainage 45 metres from the commencement of that work, and terminating beneath a point 23 metres east of the Western Perimeter Road.

• Work No. 1B—A railway (2,425 metres in length in tunnel) commencing by a junction with Work No. 4 (in tunnel) authorised by the Heathrow Express Railway Act 1991 at a point, at chainage 1,530 metres from the commencement of that work, and terminating beneath a point 55 metres east of the Western Perimeter Road.

Article 11

SCHEDULE 2 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall apply with the necessary modifications as respects compensation in the case of compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without prejudice to the generality of paragraph 1 above, the Land Compensation Act 1973 shall have effect subject to the modifications set out in sub-paragraphs (2) and (3) below.

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4 below—

(a) for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”; and

(b) for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.

(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition) as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5 below—

(a) for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”;

(b) for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”;

(c) for the words “part proposed” there shall be substituted the words “right proposed”; and

(d) for the words “part is” there shall be substituted “right is”.

Adaptation of 1965 Act

3.—(1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are 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

(b) the land over which the right is or is to be exercisable.

(2) Without prejudice to the generality of sub-paragraph (1) above, Part I of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4.  For section 7 of the 1965 Act (measure of compensation) there shall be substituted the following section—

In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of that land by reason of injurious affection of other lands of the owner held with that land by the exercise of the powers conferred by this or the special Act.”.

5.  For section 8 of the 1965 Act (provisions as to divided land) there shall be substituted the following—

(1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

(a) a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (“the tribunal”); and

(b) before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land and—

(i) where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land; or

(ii) where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs;

the Heathrow Express Railway Extension Order 2002 (“the Order”) shall, in relation to that person, cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs.

(2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section shall be determined by the tribunal.

(3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice.”.

6.  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);

shall be so modified as to secure that, as against persons with interests in the land that are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7.  Section 11 of the 1965 Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority have served notice to treat in respect of any right, they have power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act shall be modified correspondingly.

8.  Section 20 of the 1965 Act (protection for interests of tenants at will etc.) shall apply 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 in question.

9.  Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified 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.

Article 28

SCHEDULE 3 PROVISIONS RELATING TO STATUTORY UNDERTAKERS, ETC.

Apparatus of statutory undertakers etc. on land acquired

1.—(1) Sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) shall apply in relation to any land acquired or appropriated by the undertaker under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1) above, references to the appropriate Minster are references to the Secretary of State.

(3) Where any apparatus of public utility undertakers or of a public telecommunications operator is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1) above, any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(4) Sub-paragraph (3) above shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer, or

(b) the owner of a private sewer which communicated with that sewer,

shall be entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

(5) The provisions of the 1990 Act mentioned in sub-paragraph (1) above, as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which Part III of the New Roads and Street Works Act 1991(1) or paragraph 2 below applies.

(6) In this paragraph—

“the 1990 Act” means the Town and Country Planning Act 1990;

“public telecommunications operator” means—

(a)

a person authorised, by a licence to which section 9 of the Telecommunications Act 1984(2) applies, to run a public telecommunications system, or

(b)

a person to whom the telecommunications code has been applied pursuant to section 10 of that Act; and

“public utility undertakers” has the same meaning as in the Highways Act 1980(3).

For the protection of London Underground Limited

2.—(1) The provisions of this paragraph shall have effect except in so far as may be otherwise agreed between the company and the undertaker and in this paragraph—

“the company” means London Underground Limited;

“construction” includes execution, placing and altering and “construct” and “constructed” shall be construed accordingly;

“designated property” means any railways of the company and any works connected therewith for the maintenance or operation of which the company are responsible and includes any lands, premises, arches, cellars or vaults held or used by the company for the purposes of such railways or works;

“the engineer” means an engineer to be appointed by the company;

“plans” includes sections, drawings, calculations, methods of construction and particulars and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Order; and

“the specified works” means so much of the authorised works as may be situated within 15 metres of, or may in any way effect, designated property.

(2) Notwithstanding anything in this Order or shown on the deposited plans, the undertaker shall not purchase compulsorily any designated property but it may purchase such easements or other rights in, under or over designated property in accordance with the provisions of article 11 above as it may reasonably require for the purpose of the specified works.

(3) The undertaker shall, before commencing the specified works, furnish to the company proper and sufficient plans thereof for the approval of the engineer, whose approval shall not be unreasonably withheld, and shall not commence the specified works until plans thereof have been approved in writing by the engineer or settled by arbitration but, if within 56 days after such plans have been furnished to the company the engineer shall not have intimated his disapproval thereof and the grounds of his disapproval, he shall be deemed to have approved the same.

(4) If within 56 days after such plans have been furnished to the company, the company shall give notice to the undertaker that the company desire themselves to construct any part of the specified works which in the opinion of the engineer will or may affect the stability of designated property or the safe operation of the company’s railways, then, if the undertaker desires such part of the specified works to be constructed, the company shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with approved plans.

(5) Upon signifying his approval or disapproval of the plans the engineer may specify any protective works, whether temporary or permanent, which in his opinion should be carried out before the commencement of the specified works to ensure the safety or stability of designated property and such protective works as may be reasonably necessary for those purposes shall be constructed with all reasonable dispatch and the undertaker shall not commence the construction of the specified works until the engineer shall have notified the undertaker that the protective works have been completed.

(6) The undertaker shall give to the engineer not less than 28 days' notice of its intention to commence the construction of any of the specified works and also, except in an emergency (when it shall give such notice as may be reasonably practicable), of its intention to carry out any works for the repair or maintenance of the specified works in so far as such works of repair or maintenance affect or interfere with the designated property.

(7) The specified works shall, when commenced, be carried out—

(a) with all reasonable dispatch in accordance with approved plans;

(b) under the competent supervision (if given) and to the reasonable satisfaction of the engineer; and

(c) in such manner as to cause—

(i) as little damage to designated property as may be; and

(ii) as little interference as may be with the conduct of traffic on any railway of the company and the use by passengers of designated property;

and, if any damage to designated property or any such interference shall be caused by the carrying out of the specified works, the undertaker shall, notwithstanding any such approval as aforesaid, make good such damage and shall on demand pay to the company all reasonable expenses to which they may be put and compensation for any loss which they may sustain by reason of any such damage or interference but nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, costs, expenses or loss which is attributable to the act, neglect or default of the company or their servants, contractors or agents.

(8) The undertaker shall at all times afford reasonable facilities to the engineer for access to the specified works during their construction and shall supply him with all such information as he may reasonably require with regard to the specified works or the method of construction thereof.

(9) The company shall at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by the company under this paragraph during their construction and shall supply the undertaker with such information as it may reasonably require with regard to such works or the method of construction thereof.

(10) If any alterations or additions, either permanent or temporary, to designated property shall be reasonably necessary during the construction of the specified works or during a period of 12 months after the completion thereof in consequence of the construction of the specified works, such alterations and additions may be effected by the company at a reasonable cost after not less than 28 days' notice in writing (save in case of emergency whereupon the engineer shall give such notice as is reasonable in the circumstances) from the date of submission of plans, programmes and estimates of costs of such alterations and additions having been given to the undertaker, and the undertaker shall pay to the company on demand the cost thereof as certified by the engineer.

(11) The undertaker shall repay to the company all costs, charges and expenses reasonably incurred by the company—

(a) in respect of the approval by the engineer of plans submitted by the undertaker;

(b) in constructing any part of the specified works on behalf of the undertaker as provided by sub-paragraph (4) above or in constructing any protective works under the provisions of sub-paragraph (5) above;

(c) in respect of the employment of any inspectors, signalmen, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, watching, lighting and signalling any railway of the company and for preventing as far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;

(d) in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the engineer, require to be imposed and which may be due to the construction or failure of the specified works or from the substitution, suspension or diversion of railway services of the company which may be necessary for the same reason;

(e) in respect of any additional temporary lighting of designated property in the vicinity of the works, being lighting made reasonably necessary during and by reason of the construction or failure of the specified works; and

(f) in respect of the supervision by the engineer of the specified works.

(12) Subject to paragraph (13) below, the undertaker shall be responsible for and make good to the company all costs, charges, damages and expenses not otherwise provided for in this paragraph which may be occasioned to or reasonably incurred by the company—

(a) by reason of the specified works or the failure thereof; and

(b) by reason of any act or omission of the undertaker or of any persons in their employ or of their contractors or others whilst engaged upon the construction of the specified works,

and the undertaker shall effectively indemnify and hold harmless the company from and against all claims and demands arising out of or in connection with the construction of the specified works or any such failure, act or omission as aforesaid and the fact that any act or thing may have been done by the company on behalf of the undertaker or in accordance with approved plans, or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without negligence on the part of the company or of any person in their employ or of their contractors or agents whilst engaged upon the construction of the specified works) excuse the undertaker from any liability under the provisions of this paragraph.

(13) The company shall give to the undertaker reasonable notice of any claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the undertaker.

For the protection of the Environment Agency

3.—(1) The provision of this paragraph shall have effect unless otherwise agreed in writing between the undertaker and the Environment Agency.

(2) Nothing in this Order or in any enactment incorporated with or applied by this Order shall prejudice or affect the operation of section 109 of the Water Resources Act 1991(4).

(3) Nothing in this Order or in any enactment incorporated with or applied by this Order shall be taken as permitting the undertaker to carry out works to alter the course of or otherwise interfere with, the Duke of Northumberland’s river and the Longford River.

Article 29

SCHEDULE 4 PROTECTION OF FUEL PIPELINES AND FACILITIES

PART I Interpretation, etc.

1.—(1) For the protection of certain fuel pipelines and facilities the following provisions shall apply and have effect, unless otherwise agreed in writing between the undertaker and the participants or, as the case may be, the oil company concerned.

(2) In this Schedule, unless the subject or context otherwise requires—

“the BP/Shell lease” means the lease of certain Depots and Pipelines dated 10 August 1984 and made between the British Airports Authority, of the one part, and BP Oil Limited and Shell U.K. Limited, of the other part;

“the BP/Shell pipelines” means the whole or any part of the Pipelines, as defined in the BP/Shell lease;

“Code of Practice” means the Code of Construction Practice as for the time being in force that is intended to regulate any environmental nuisance which may be caused in the course of carrying out the works;

“construction” includes execution, placing and altering and cognate expressions shall be construed accordingly;

“the Esso lease” means the lease of a Depot and certain Pipelines dated 10 August 1984 and made between the British Airports Authority of the one part and Esso Petroleum Company Limited of the other part;

“the Esso pipelines” means the whole or any part of the Pipelines, as defined in the Esso lease;

“the hydrant systems” means the whole or any part of the Pipelines, as defined in the hydrant systems lease;

“the hydrant systems lease” means the lease of the hydrant systems dated 10 August 1984 and made between the British Airports Authority, of the one part, and Esso Petroleum Company Limited, Mobil Oil Company Limited, Shell U.K. Limited, BP Oil Limited, Texaco Limited, Total Oil Great Britain Limited, Elf Oil (GB) Limited, Chevron International Oil Company Limited and Petrofina (UK) Limited, of the other part, as amended by deeds dated 28 August 1987 and 28 September 1990 and by subsequent agreement;

“the Nominee” means Heathrow Hydrant Operating Company Limited, which has been nominated by the participants to act on their behalf for the purposes of Part II of this Schedule, or such other person as is nominated for the purposes of that Part or any provisions thereof by a written notice signed by all the participants and served on the undertaker;

“oil company” means BP Oil UK Limited, Shell U.K. Limited, Esso Petroleum Company Limited, Kuwait Petroleum International Aviation Company (U.K.) Limited or Heathrow Airport Fuel Company Limited;

“the participants” means the persons who have for the time being any right or interest in the hydrant systems or who (being a company concerned in the supply of fuel at the airport or in the provision of airline services thereat) have any interest in a company which has for the time being the entire leasehold interest in the hydrant systems;

“plans” includes sections, drawings, calculations, methods of construction, particulars and specifications;

“the protected property” means any fuel depot, tank farm, offices, access roads, parking areas or other facilities (together with any pipelines, apparatus or equipment located therein)—

(a)

any part of which is situated within the limits of deviation of the works or within 50 metres thereof; and

(b)

in respect of which an oil company has an interest for the time being;

“protective works” has the meaning given by paragraph 6(1) below;

“specified matter” means any of the following—

(a)

the construction, maintenance, operation or use of the works;

(b)

the construction, maintenance, operation or use of any protective works or safeguarding works;

(c)

any preparatory action in connection with any activity mentioned in paragraph (a) or (b) above;

(d)

any subsidence resulting from, or failure or want of repair of any such works as are mentioned in paragraph (a) or (b) above; and

(e)

any act or omission of the undertaker or of any person in its employ or of its agents or contractors whilst engaged upon the construction, maintenance, operation or use of any such works as are mentioned in paragraph (a) or (b) above or any preparatory action mentioned in paragraph (c) above;

“the Surveyor” means the surveyor or engineer appointed for the purposes of Part IV of this Schedule;

“the works” means the whole or any part of the works authorised by this Order including the making of any trial hole under article 8 of this Order.

(3) In this Schedule references to the relevant oil company are references to any (or, as the case may be, each) oil company which has an interest in the protected property concerned for the time being.

(4) In this Schedule references to an oil company include references to its successors in title (being a company concerned in the supply of fuel at the airport) in respect of any pipelines or protected property; and references to an oil company having an interest in any property include references to an oil company having an interest in a company which itself has an interest in any property.

PART II Protection of hydrant fuelling systems

2.—(1) Notwithstanding anything in this Order, as shown on the deposited plans, the undertaker shall not pursuant to the powers of this Order acquire the hydrant systems otherwise than by agreement with the participants.

(2) The undertaker shall not exercise the powers in article 4(3)(a) in relation to the hydrant systems except in accordance with the provisions of the hydrant systems lease.

(3) The undertaker shall not exercise the powers in article 6 and article 7 in relation to the hydrant systems.

(4) The undertaker shall not exercise the powers in article 14 and article 15 to take possession of the hydrant systems, otherwise than by agreement with the participants.

3.  The undertaker shall use its best endeavours—

(a) in exercising any of the powers of this Order to avoid or (failing avoidance) to minimise any damage or disruption to the hydrant systems or their operation; and

(b) without prejudice to paragraph (a) above, to ensure that the works do not at any time fall into such a condition as to compromise the integrity or operation of the hydrant systems.

4.—(1) Except in the case of trial holes or alterations, not less than five months before commencing to construct the works, the undertaker shall furnish to the Nominee a programme for the works proposed and a general indication of the nature and location of those works and, if within 28 days from the receipt by the Nominee of that programme and general indication the Nominee gives notice in writing to the undertaker that any part of the works indicated in the programme may in any way affect the hydrant systems, paragraphs 5 and 6 below shall apply with respect to that part of those works.

(2) Upon giving any notice to the undertaker under sub-paragraph (1) above the Nominee shall furnish drawings showing to the best of its knowledge the position and depth of the relevant part of the hydrant systems.

5.  Not less than three months before commencing to construct the works or not less than one month before digging trial holes or making alterations to the works in either case may significantly affect the hydrant systems, the undertaker shall furnish to the Nominee plans thereof (together with a programme of the works in the case of trial holes or alterations) and shall have due regard to any representations made by the Nominee relating to such plans or to the programme for the works.

6.—(1) At any time within a period of one month, or a period of 14 days in the case of trial holes or alterations, from the receipt by the Nominee of the plans referred to in paragraph 5 above the Nominee may by notice in writing to the undertaker specify any reasonable temporary or permanent works or measures (the “protective works”) which in its reasonable opinion should be carried out or taken by the undertaker before the commencement of or during the construction of the works in order to ensure the stability of the hydrant systems (shown where applicable on the drawings furnished by the Nominee under paragraph 4(2) above) or to protect them from injury (including injury by subsidence) and such protective works shall be constructed by the undertaker at its own expense and under the inspection (if any) of the Nominee.

(2) Except in the case of protective works that the Nominee has informed the undertaker in writing may be carried out during the construction of the works, the undertaker shall not commence the construction of any work within fifteen metres of, or which may in any way affect, the hydrant systems until the protective works relating to that work have been completed to the reasonable satisfaction of the Nominee.

(3) In the case of protective works of which the Nominee has informed the undertaker in writing as mentioned in sub-paragraph (2) above, the undertaker shall comply with all reasonable requirements of the Nominee arising from its inspection under sub-paragraph (1) above as promptly as practicable after the undertaker has been notified of such requirements.

(4) Except in an emergency (when it shall give such notice as may be reasonably practicable) the undertaker shall give the Nominee not less than 14 days' notice of its intention to carry out any works for the repair or maintenance of the protective works in so far as such works may affect or interfere with the hydrant systems.

7.—(1) The undertaker shall from time to time supply the Nominee with all such information as the Nominee may reasonably require in relation to operations relating to or connected with the works which may interfere with any measures to which this sub-paragraph applies.

(2) Sub-paragraph (1) above applies to measures for providing or preserving cathodic protection for apparatus forming part of the hydrant systems which have been taken by any of the participants or upon which the Nominee has consulted the undertaker.

8.—(1) The undertaker shall repay to the Nominee and any participant the reasonable expenses incurred by the Nominee or that participant in or in connection with the preparation of any drawing or notice referred to in paragraph 4(2) or 6(1) above and the watching and inspecting of—

(a) any protective works relating to the hydrant systems; and

(b) any of the works (including maintenance works) which are near to or are likely to affect the hydrant systems.

9.—(1) If by reason or in consequence of any specified matter any damage, disruption or interference to the hydrant systems or the operation or use thereof shall be caused or the Nominee or any participant shall carry out any works, take any measures or install any ancillary apparatus (other than additional cathodic protection) which may be reasonably necessary to prevent any such damage, disruption or interference occurring—

(a) the undertaker shall pay reasonable compensation to each participant or the Nominee for any loss sustained or additional expense incurred by that person; and

(b) the undertaker shall indemnify the Nominee and each participant against all claims, demands, proceedings, costs, damages and expenses which may be made, taken against or recovered from or incurred by the Nominee or that participant by reason or in consequence of any specified matter.

(2) Nothing in this paragraph shall impose any liability on the undertaker in respect of so much of any damage, loss or additional expenditure as is attributable to—

(a) the act, neglect or default of the Nominee or any employees or any participant, or contractors of the Nominee or any participant such act, neglect or default to include, without prejudice to the generality of that expression, any failure to show upon the drawings furnished under paragraph 4(2) above to the best of the Nominee’s knowledge the position and depth of the relevant part of the hydrant systems with sufficient accuracy to have enabled the undertaker by taking reasonable precautions to avoid damage or loss or the need for additional expenditure in respect of those systems; or

(b) any work or operation carried out by or on behalf of the undertaker in accordance with the instructions of the Nominee and without negligence.

(3) The Nominee or, as the case may be, the relevant participant shall give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior consent in writing of the undertaker, such consent not to be unreasonably withheld or delayed.

10.  The preceding provisions of this Part of this Schedule shall apply in relation to any pipelines and associated equipment lawfully installed by or for the use of the participants after the coming into force of this Order (whether or not in accordance with the hydrant systems lease) as they apply in relation to the hydrant systems.

PART III Protection of certain pipelines

11.—(1) The provisions of Part II of this Schedule shall apply to the BP/Shell pipelines as they apply to the hydrant systems as if—

(a) references in paragraphs 4 to 7 to the Nominee were references to BP Oil UK Limited;

(b) other references to the Nominee and references to the participants (or any of them) were references to BP Oil UK Limited and Shell U.K. Limited or either of them, as the case may be; and

(c) the reference in paragraph 10 to the hydrant systems lease were a reference to the BP/Shell lease.

(2) The provisions of Part II of this Schedule shall apply to the Esso pipelines as they apply to the hydrant systems as if—

(a) references to the Nominee and the participants (or any of them) were references to the Esso Petroleum Company Limited; and

(b) the reference in paragraph 10 to the hydrant systems lease were a reference to the Esso lease.

PART IV Protection of certain depots

12.—(1) Before commencing construction of so much of the works as will or may affect the protected property the undertaker shall, at its own expense, appoint in the joint names of the undertaker and the relevant oil company a reputable firm of chartered building surveyors or chartered engineers to prepare a schedule of defects existing in the protected property and that firm shall submit a copy of the schedule to the undertaker and the relevant oil company.

(2) After construction of the works and at the written request of the relevant oil company a similar schedule to that prepared in accordance with paragraph 12(1) above shall be prepared by and at the expense of the undertaker in consultation with the Surveyor, but no such request may be made later than at the end of two years from the date of opening for public traffic of the railway comprised in the works and the undertaker shall not be required to prepare more than one such schedule for the protected property.

13.—(1) The undertaker shall undertake monitoring of any protected property in respect of which a schedule of defects is required to be prepared under paragraph 12(1) above, and that monitoring shall consist of precise levelling of various points on the outside of the protected property and, if necessary, monitoring crack propagation.

(2) Monitoring under sub-paragraph (1) above shall take place prior to the construction of the works and during the period that any settlement of the protected property is occurring and for a three month period after the monitoring indicates that the settlement has ceased and as soon as practicable after the monitoring results have been obtained the undertaker shall provide a copy of such results to the relevant oil company without charge.

14.—(1) The undertaker shall in the construction, maintenance, use and operation of the works employ all means which are reasonably practicable—

(a) to minimise any settlement or damage which may be likely to be caused to the protected property including carrying out all necessary safeguarding works under article 7 in consultation with the relevant company and the Surveyor;

(b) to ensure that the works are carried out in accordance with the Code of Practice.

(2) The undertaker shall employ all means which are reasonably practicable for the purpose of minimising any interference with power, drainage, telecommunications and other essential services as a result of the construction and maintenance of the works and the undertaker shall give immediate consideration to any complaint which may be made by the relevant oil company of such interference and use all reasonable endeavours to remedy it as soon as possible.

(3) Without prejudice to the preceding provisions of this paragraph, in exercising its powers under article 7 of this Order in relation to the protected property the undertaker shall use all means that are reasonably practicable to prevent or failing prevention to minimise any disruption to any business of the oil company concerned which is being carried on at or from that property.

15.  The undertaker shall within 30 days of notice in writing to do so repay to the relevant oil company all reasonable costs, charges and expenses properly incurred by the relevant oil company (including Value Added Tax thereon in so far as the same is not recoverable by the relevant oil company) in connection with—

(a) the services of the Surveyor under paragraph 12(2) above;

(b) the services of architects, surveyors, engineers and other technical advisers to whom the Surveyor finds it reasonably necessary to refer in connection with this Part of this Schedule.

16.—(1) The undertaker shall not exercise the powers under article 15 of this Order in the case of the surface of the protected property.

(2) The undertaker shall in the course of the construction or maintenance of the works use all means which are reasonably practicable to avoid material interference with any access to the protected property.

17.—(1) If by reason or in consequence of any specified matter any damage, disruption or interference shall be caused to (or to the operation or use of) the protected property or if an oil company shall carry out any works, take any measures or install any ancillary apparatus which may be reasonably necessary to prevent any such damage, disruption or interference occurring—

(a) the undertaker shall make reasonable compensation to the oil company concerned for any loss sustained or additional expense incurred by it; and

(b) the undertaker shall indemnify the oil company concerned against all claims, demands, proceedings, costs, damages and expenses which may be made, taken against or recovered from or incurred by that oil company by reason or in consequence of any specified matter.

(2) Nothing in this paragraph shall impose any liability on the undertaker in respect of so much of any damage, loss or additional expenditure as is attributable to the act, neglect or default of the oil company concerned or any employees or contractors of the oil company.

(3) The oil company concerned shall give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior consent in writing of the undertaker, such consent not to be unreasonably withheld or delayed.

PART V Miscellaneous

18.  Nothing in this Schedule shall prejudice or affect the right of any person to claim compensation in accordance with the other provisions of this Order but no person shall be entitled to any compensation by virtue of those provisions as regards so much of any damage or claim in respect of which that person is entitled to payment under this Schedule.

19.  Subject to paragraph 9(2)(a) above, the fact that any work or thing has been executed or done under or for the purposes of this Order in accordance with a plan submitted to any person or in accordance with any requirement of any person or directions or award of any arbitrator under article 34 of this Order shall not relieve the undertaker from any liability for damage caused to any property or affect any claim by any person in respect of such damage.

(1)

1991 c. 22.

(2)

1984 c. 12.

(3)

1980 c. 66.

(4)

1991 c. 57.