Articles 2, 3, 42, 43, 47 and 53
1. For the protection of the undertakers referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker concerned, have effect.
2. In this Part of this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“alternative apparatus” means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory or licensed functions in a manner no less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by that undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;
“connection work” means the actual placing, erection, installation, bedding, packing, removal, connection or disconnection of any apparatus or, where the apparatus is laid in a trench, execute any filling around the apparatus within 500 millimetres (measured in any direction) of the apparatus where the apparatus is operating or only capable of operating at below 7 bar pressure or within 3000 millimetres of the apparatus where the apparatus is operating or is capable of operating at or in excess of 7 bar pressure
“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, across, along or upon such land;
“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of the undertaker including construct, use, repair, alter, inspect, renew or remove the apparatus
“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 the works to be executed;
“promoter” means the undertaker as defined in article 2 of this Order;
“undertaker” means—
National Grid Electricity Transmission plc as a licence holder within the meaning of Part 1 of the Electricity Act 1989; and
National Grid Gas plc as a gas transporter within the meaning of Part 1 of the Gas Act 1986.
3. Except for paragraphs 4 (Apparatus of undertakers in stopped up streets), 10 (Retained apparatus— protection of gas undertakers) and 11 (Retained apparatus— protection of electricity undertakers), 12 (Expenses) and 13 (Indemnity) this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.
4.—(1) Where any street is stopped up under article 13 (stopping up of streets), any undertaker whose apparatus is in the street or accessed via that street shall be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the promoter will grant to the undertaker legal easements reasonably satisfactory to the specified undertaker in respect of such apparatus and access to it prior to the stopping up of any such street or highway.
(2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up of streets), an undertaker shall be at liberty at all times to take all necessary access across any such stopped up highway and or 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.
5.—(1) The promoter, in the case of the powers conferred by article 20 (protective work to buildings and structures), shall so exercise those powers as not to obstruct or render less convenient the access to any apparatus without the written consent of the undertaker and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of any undertaker or any interruption in the supply of electricity, gas or water, as the case may be, by the undertaker is caused, the promoter shall—
(a)repay the cost reasonably incurred by the undertaker in making good such damage or restoring the supply; and
(b)indemnify the undertaker against all losses claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by that undertaker, by reason of any such damage or interruption.
(2) Nothing in this paragraph shall impose any liability on the promoter with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of an undertaker or its officers servants contractors workmen or other agents; and the undertaker shall give to the promoter reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior written consent of the promoter which shall not be unreasonably withheld or delayed.
6. Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the promoter shall not acquire any apparatus or override any easement or other interest of the undertaker otherwise than by agreement.
7.—(1) If, in the exercise of the agreement reached in accordance with paragraph (6) or in any other authorised manner, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of an undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of the undertaker in question in accordance with sub-paragraph (2) to (8) inclusive.
(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 promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker in question 56 days’ 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 an undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), afford to the undertaker to their satisfaction (taking into account paragraph 9(1) below) the necessary facilities and rights for
(a)the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter 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 undertaker in question shall, on receipt of a written notice to that effect from the promoter, 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 shall not extend to the requirement for the undertaker 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 the promoter under this part of this Schedule shall be constructed in such manner and in such line or situation and in accordance with such programme as may be agreed between the undertaker in question and the promoter.
(5) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay in accordance with the agreed programme to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the promoter to be removed under the provisions of this part of this Schedule.
(6) If the promoter gives notice in writing to the undertaker that it desires to carry out any part of any work to which this paragraph applies, such work, instead of being carried out by the undertaker, may be carried out by the promoter with the prior written consent of the undertaker (which shall not be unreasonably withheld or delayed and shall be subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with the plans to which the undertaker has confirmed (or is deemed to have confirmed) in accordance with paragraph 8, with all reasonable despatch under the superintendence (if given) and to the reasonable satisfaction of the undertaker.
(7) The undertaker shall, within 14 days after the undertaker has confirmed (or is deemed to have confirmed) that it has no objection to the plans for the necessary work in accordance with paragraph 8 and after the grant to or obtaining by the undertaker of any such facilities and rights as referred to in sub-paragraph (2) or (3), supply the promoter with the name of its approved contractor and the promoter shall be responsible for the engagement of the contractor on such terms and conditions as the promoter thinks fit.
(8) If the undertaker does not provide the name of its approved contractor within the period required by sub-paragraph (7), the promoter shall be entitled to carry out the necessary work using such contractor as it thinks fit, being a contractor who appears to the promoter, following reasonable enquiry of the undertaker, to be competent and suitably qualified to carry out that work.
(9) In carrying out any work under sub-paragraph (6) the promoter shall comply with all statutory obligations which would have been applicable had the works been carried out by the undertaker
(10) Nothing in sub-paragraph (6) shall authorise the promoter to carry out any connection work
8. Not less than 56 days before the date on which the promoter intends to commence, or requires the undertaker to commence, the construction of any alternative apparatus, the promoter shall submit to the undertaker for approval plans of the alternative apparatus detailing:
(a)the exact position of the alternative apparatus;
(b)the level at which the alternative apparatus is proposed to be constructed;
(c)the manner of construction of the alternative apparatus; and
(d)the indicative cost of and programme for the construction of the alternative apparatus
(2) Within 42 days (or such longer period as the parties may agree) following receipt of the plans under sub-paragraph (1), the undertaker shall respond to the promoter either:
(a)confirming that it has no objection to the plans; or
(b)specifying (with reasons) its objections to the plans and (if the undertaker considers it appropriate to do so) suggesting any changes which in its opinion are needed in order to remove the objections in which event the promoter shall revise and resubmit the plans and the provision of this paragraph 8 shall apply to the plans as so revised; or
(c)specifying the further information which it requires in order to assess the plans.
(3) If the undertaker fails to respond to the promoter within 42 days (or such longer period as the parties may agree) and provided that paragraph 10(5) has been complied with it shall be deemed to have confirmed that it has no objection to the plans.
(4) Any dispute between the parties in relation to this paragraph (8) shall be resolved in accordance with paragraph 18
(5) For the avoidance of doubt, nothing in this paragraph 8 shall be construed as permitting the promoter to carry out work in connection with the construction of alternative apparatus or the removal of apparatus without first obtaining the undertaker’s prior written consent in accordance with paragraph 7(6).
9.—(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to an undertaker facilities and rights for the construction and maintenance in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the promoter and the undertaker in question and shall be no less favourable on the whole to the undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless agreed by the undertaker.
(2) If the facilities and rights to be afforded by the promoter and agreed with the undertaker under 8(1) above 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 the 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 in the matter shall be referred to arbitration and, the arbitrator shall make such provision for the payment of compensation by the promoter to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
(3) The promoter and the undertaker agree that where there is any inconsistency or duplication between the provisions set out in this Schedule relating to the relocation and or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and or removal of apparatus) and the provisions of any existing easements rights agreements and licences granted used enjoyed or exercised by the undertaker as of right or otherwise in relation to the apparatus then the provisions in this Schedule shall prevail.
10.—(1) Not less than 56 days before commencing the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the promoter under paragraph 7(2) or otherwise, the promoter shall submit to the undertaker in question a plan.
(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 (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed including a material statement and describing—
(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; and
(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus.
(3) Within 42 days (or such longer period as the undertaker and the promoter may agree) following receipt of the plans under sub-paragraph (1) the undertaker shall respond to the promoter either:
(a)confirming that it has no objection to the plans together with its reasonable requirements for the removal, alteration, or otherwise for the protection, of any apparatus, or for securing access thereto; or
(b)specifying (with reasons) its objections to the plans and (if the undertaker considers it appropriate to do so) suggesting any changes which in its opinion are needed in order to remove the objections in which event the promoter shall revise and resubmit the plans and the provision of this sub-paragraph (3) shall apply to the plans as so revised; or
(c)specifying the further information which it requires in order to assess the plans.
(4) If the undertaker fails to respond to the promoter within 42 days (or such longer period as the undertaker and the promoter may agree) and provided that sub-paragraph 5 has been complied with it shall be deemed to have confirmed that it has no objection to the plans.
(5) When submitting the plans to the undertaker pursuant to paragraph 8 or sub-paragraph (1) or paragraph 11(1) the promoter shall send the plans to the undertaker (in hard copy only) by recorded post to National Grid Plant Protection, Brick Kiln Street, Hinckley, Leicestershire LE10 ONA and the registered office of the undertaker (or such other address as the undertaker may notify the promoter in writing from time to time). In the event that the promoter has not received a response from the undertaker in accordance with paragraph 8 or sub-paragraph (3) or paragraph 11(3) within 21 days of submission of the plans under paragraph 8 or sub-paragraph (1) or paragraph 11(1), the promoter shall issue a written reminder to the undertaker by recorded post to both of the aforementioned addresses.
(6) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (9), as amended from time to time by agreement between the promoter and the undertaker and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) or (7) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the undertaker shall be entitled to watch and inspect the execution of those works.
(7) Where undertakers require any protective works to be carried out either themselves or by the promoter (whether of a temporary or permanent nature) such protective works shall be carried out to the undertakers’ satisfaction prior to the carrying out of any works authorised by the Order (or any relevant part thereof) and the undertakers shall give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (9) (except in an emergency).
(8) If an undertaker in accordance with sub-paragraph (3) or (7) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 6 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).
(9) Nothing in this paragraph shall preclude the promoter from submitting at any time or from time to time, but in no case less than 56 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 shall apply to and in respect of the new plan.
(10) The promoter shall not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works and shall—
(a)comply with sub-paragraph (6) and (7) insofar as is reasonably practicable in the circumstances; and
(b)comply with sub-paragraph (11) at all times.
(11) At all times when carrying out any works authorised under the Order comply with National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW27” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.
(12) Any dispute between the parties in relation to this paragraph 10 shall be resolved in accordance with paragraph 18.
11.—(1) Not less than 56 days before commencing the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the promoter under paragraph 7(2) or otherwise, the promoter shall submit to the undertaker in question a plan.
(2) In relation to works which will or may be situated on, over, under or within 8.1 metres measured in any direction of any apparatus, or involve embankment works within 8.1 metres of any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed including a material statement and describing—
(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; and
(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus.
(3) Within 42 days (or such longer period as the undertaker and the promoter may agree) following receipt of the plans under sub-paragraph (1) the undertaker shall respond to the promoter either:
(a)confirming that it has no objection to the plans together with its reasonable requirements for the removal, alteration, or otherwise for the protection, of any apparatus, or for securing access thereto; or
(b)specifying (with reasons) its objections to the plans and (if the undertaker considers it appropriate to do so) suggesting any changes which in its opinion are needed in order to remove the objections in which event the promoter shall revise and resubmit the plans and the provision of this sub-paragraph (3) shall apply to the plans as so revised; or
(c)specifying the further information which it requires in order to assess the plans.
(4) If the undertaker fails to respond to the promoter within 42 days (or such longer period as the undertaker and the promoter may agree) and provided that paragraph 10(5) has been complied with it shall be deemed to have confirmed that it has no objection to the plans. Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub paragraph (7), as amended from time to time by agreement between the promoter and the undertaker and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) or (5) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the undertaker shall be entitled to watch and inspect the execution of those works.
(5) Where undertakers require any protective works to be carried out either themselves or by the promoter (whether of a temporary or permanent nature) such protective works shall be carried out to the undertakers’ satisfaction prior to the carrying out of any works authorised by the Order (or any relevant part thereof) and the undertakers shall give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (7) (except in an emergency).
(6) If an undertaker in accordance with sub-paragraph (3) or (5) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 6 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).
(7) Nothing in this paragraph shall preclude the promoter from submitting at any time or from time to time, but in no case less than 56 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 shall apply to and in respect of the new plan.
(8) The promoter shall not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works and shall—
(a)comply with sub-paragraph (4) and (5) insofar as is reasonably practicable in the circumstances; and
(b)comply with sub-paragraph (9) at all times.
(9) At all times when carrying out any works authorised under the Order comply with National Grid’s policies for development near over headlines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.
(10) Any dispute between the parties in relation to this paragraph 11 shall be resolved in accordance with paragraph 18.
12.—(1) Subject to the following provisions of this paragraph, the promoter shall repay to an undertaker on demand all charges, costs and expenses reasonably incurred by that undertaker in, or in connection with, the inspection, removal, relaying or replacing, 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 this Schedule including without limitation—
(a)any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that the undertaker elects to use CPO powers to acquire any necessary rights under 7(3) all costs incurred as a result of such action;
(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 Schedule.
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions 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 promoter or in default of agreement settled by arbitration in accordance with article 63 (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 undertaker in question by virtue of sub-paragraph (1) shall be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs shall be borne by the promoter.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus shall 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 shall 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 an undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(6) In any case where work is carried out by the promoter pursuant to paragraph 7(6) and, if such work had been carried out by the undertaker, the repayment made to undertaker under paragraph 12 would fall to be reduced pursuant to paragraphs 12(1) to 12(4), the undertaker shall pay to the promoter such sum as represents the amount of that reduction
(7) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses it reasonably expects to incur in relation to the items set out at paragraph 12(1), for agreement by the promoter.
(8) The promoter and the undertaker will use all reasonable endeavours to agree the amount of any estimates submitted by the undertaker under sub-paragraph (7) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement. If the promoter and the undertaker are unable to agree the amount of an estimate, it shall be dealt with in accordance with paragraph 18.
(9) Work in relation to which an estimate is submitted under sub-paragraph (7) shall not be commenced until the estimate is agreed under sub-paragraph (8) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 21days of the estimate being agreed under sub-paragraph (8).
(10) In the event that the undertaker requires funds to be provided by the promoter in advance of carrying out any works to relocate apparatus in accordance with paragraph 7, the undertaker shall be entitled to submit an invoice to the promoter for the anticipated costs and expenses and the provisions of sub-paragraph (12) shall apply. If the actual costs and expenses incurred by the undertaker in connection with such works are less than the anticipated costs and expenses paid to it by the promoter, then the undertaker shall pay to the promoter such sum as represents the amount of the difference between the anticipated costs and expenses paid by the promoter and the actual costs and expenses incurred by the undertaker.
(11) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (8) has been or is likely to be exceeded, it shall forthwith notify the promoter and shall submit a revised estimate of the relevant costs and expenses to the promoter for agreement. The provisions of sub-paragraphs (8) to (10) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (8) shall be reduced to 7 days.
(12) The undertaker may from time to time, and at least twice a year (and in any event within 12 months of the costs and expenses being incurred) will, issue to the promoter invoices for costs and expenses incurred or, in the case of the costs referred to in sub-paragraph (10), anticipated to be incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (8) or (as the case may be) the revised estimate agreed under sub-paragraph (11). Invoices issued to the promoter for payment shall:
(a)specify the approved purchase order number;
(b)be supported by timesheets and or narratives that demonstrate that the work invoiced has been completed in accordance with the agreed estimate; and
(c)be paid within 28 days of their being received by the promoter’s accounts department.
(13) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (8) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (11).
(14) Any amount properly due to the undertaker under this Schedule which is not paid by the date specified in sub-paragraph (12) thereafter carry interest at the rate of 2% above the Bank of England base rate from time to time for the period from such date up to and including the date on which payment (including accrued interest) is made.
13.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the promoter or in consequence of any act or default of the promoter (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the promoter under 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 those works) or property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, or the undertaker becomes liable to pay any amount to any third party, the promoter shall—
(a)bear and pay on demand the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and
(b)indemnify that undertaker for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the undertaker, by reason or in consequence of any such damage or interruption or the undertaker becoming liable to any third party as aforesaid.
(2) The fact that any act or thing may have been done by an undertaker on behalf of the promoter or in accordance with a plan approved by an undertaker or in accordance with any requirement of an undertaker or under its supervision shall not (subject to sub-paragraph (3), excuse the promoter from liability under the provisions of this sub-paragraph (1)).
(3) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any damage or interruption to the extent that it is attributable to the neglect or default of an undertaker, its officers, servants, contractors or agents.
(4) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the promoter and considering their representations.
14.—(1) No works of the type referred to in paragraphs 10(1) or 11(1) shall commence until a scheme for monitoring ground subsidence (“referred to in this paragraph as the monitoring scheme”) which is capable of interfering with or risking damage to undertaker’s apparatus has been submitted to and approved by the relevant undertaker, such approval not to be unreasonably withheld or delayed.
(2) The ground subsidence monitoring scheme described in sub-paragraph (1) shall set out—
(a)the apparatus which is to be subject to such monitoring;
(b)the extent of land to be monitored;
(c)the manner in which ground levels are to be monitored;
(d)the timescales of any monitoring activities; and
(e)the extent of ground subsidence which, if exceeded, shall require the promoter to submit for undertaker’s approval a ground subsidence mitigation scheme in respect of such subsidence in accordance with sub-paragraph (3).
(3) The monitoring scheme required by sub paragraph (1) and (2) must be submitted within 56 days prior to the commencement of any works authorised by this Order or comprised within the authorised development. Any requirements of the undertaker will be notified within 28 days of receipt of the monitoring scheme. Thereafter the monitoring scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker.
(4) As soon as reasonably practicable after any ground subsidence identified by the monitoring activities set out in the monitoring scheme has exceeded the level described in sub-paragraph (2)(e), a scheme setting out necessary mitigation measures (if any) for such ground subsidence (referred to in this paragraph as a “mitigation scheme”) shall be submitted to the undertaker for approval, such approval not to be unreasonably withheld or delayed; and any mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker save that the undertaker retains the right to carry out any further necessary protective works for the safeguarding of their apparatus and can recover any such costs in line with paragraph (12).
(5) If the monitoring scheme or mitigation scheme would conflict with any aspect of any ground subsidence monitoring scheme or ground subsidence mitigation scheme approved by the relevant planning authority pursuant to Schedule 3 (requirements) the promoter may submit a revised monitoring scheme or mitigation scheme to the undertaker for its approval, such approval not to be unreasonably withheld or delayed; and the revised monitoring scheme or mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker.
15. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and an undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.
16. Where in consequence of the proposed construction of any of the authorised development, the promoter or an undertaker requires the removal of apparatus under paragraph 7(2) or an undertaker makes requirements for the protection or alteration of apparatus under paragraphs 10 or 11, the promoter shall 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 the undertaker’s undertaking and each undertaker shall use its best endeavours to co-operate with the promoter for that purpose.
17. If in consequence of the agreement reached in accordance with paragraph 6 or the powers granted under this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.
18. Any difference or dispute arising between the promoter and an undertaker under this Schedule shall, unless otherwise agreed in writing between the promoter and that undertaker, be determined by arbitration in accordance with article 63 (arbitration).
1. For the protection of the undertaker referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker, have effect.
2. In this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“alternative apparatus” means alternative apparatus adequate to enable the undertaker to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by the undertaker which for the avoidance of doubt will include substation buildings and chambers;
“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, across, along or upon land;
“plan” includes a section and description of the works to be executed;
“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;
“undertaker” means London Power Networks PLC.
3. This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.
4. Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), the undertaker shall be at liberty at all times 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, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.
5.—(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of the undertaker or any interruption in the supply of electricity by the undertaker is caused, the promoter shall—
(a)bear and pay the cost reasonably incurred by the undertaker in connection with the obstruction or reduction in convenience of the access to any apparatus and or making good such damage or restoring the supply; and
(b)subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker (including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay to its customers by statute and reasonable ex gratia payments made to customers in addition thereto) by reason or in consequence of any such obstruction or reduction in convenience of the access to any apparatus or damage or interruption.
(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any obstruction or reduction in convenience of the access to any apparatus or damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.
(3) The undertaker shall give the promoter reasonable notice of any such claim or demand or intended ex gratia payment to be made and no settlement or compromise thereof shall be made without the consent of the promoter (such consent not to be unreasonably withheld or delayed) who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
6. Regardless of any provision in this Order or anything shown on the land plans, the promoter shall not acquire any apparatus otherwise than by agreement.
7.—(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of the undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker not less than 56 days’ written notice of that requirement, together with a plan and draft programme 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 the undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), on terms no less favourable on the whole to the undertaker than those that relate to the apparatus to be removed afford to the undertaker the necessary—
(a)facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter is unable to afford or procure 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 undertaker shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, but for the avoidance of doubt such reasonable endeavours shall not include the exercise of the undertaker’s statutory powers unless the undertaker elects to do so.
(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in accordance with the undertaker’s specifications, standards, policies and procedures and in such manner and in such line or situation as may be agreed between the undertaker and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(5) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 no longer required by virtue of the construction and bringing into service of the alternative apparatus as required by the promoter to be removed under the provisions of this part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker 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 promoter in accordance with the exercise of the powers conferred by this Order, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker provided that such works are undertaken by the promoter and or its subcontractors in accordance with the undertaker’s plans, specifications, standards and policies and is undertaken by contractors who are approved to work on the undertaker’s apparatus and carry insurances acceptable to the undertaker. Any superintendence given by the undertaker shall not reduce the promoter’s liability under this Schedule.
(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
8.—(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to the undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as are no less favourable on the whole to the undertaker than those that related to the removed apparatus or as may otherwise be agreed between the promoter and the undertaker or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—
(a)give effect to all reasonable requirements of the promoter and the undertaker for ensuring the safety and efficient operation of the authorised development and the undertaker’s distribution network and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the promoter 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 undertaker 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 shall make such provision for the payment of compensation by the promoter to the undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
9.—(1) Not less than 56 days before starting the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus (wherever situated) the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker a plan.
(2) In relation to works which will or may be situated over or within 90 metres measured in any direction of, or (wherever situated) may impose any load directly or indirectly upon any apparatus or remove from or impact upon support for any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—
(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;
(d)the position of all apparatus within 90 metres of the works or upon which the works will or may impose a load or may remove from or affect support for any apparatus;
(e)by way of detailed drawings, every alteration proposed to be made to any such apparatus
(f)the proposed programme for carrying out such works; and
(g)the proposed measure to mitigate the impact of such works on the undertaker’s apparatus.
(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.
(4) Any approval of the undertaker required under sub-paragraph (3)—
(a)may be given subject to reasonable conditions for any purpose mentioned in subparagraph (6); and
(b)shall not be unreasonably withheld.
(5) If the undertaker fails to respond to a plan submitted under subparagraph (1) within 35 days of its submission, the promoter may send a written reminder to the undertaker, and if the undertaker has is neither given nor refused its approval within 14 days of the issue of such reminder, such approval it shall be deemed to have been given.
(6) In relation to a work to which sub-paragraph (2) applies, the undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus.
(7) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (8) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus, and the undertaker shall be entitled to watch and inspect the execution of those works.
(8) Any requirements made by the undertaker under sub-paragraph (7) shall be made within a period of 56 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(9) If the undertaker, in accordance with sub-paragraph (8) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).
(10) Nothing in this paragraph shall preclude the promoter from submitting at any time or from time to time, but in no case less than 56 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 shall apply to and in respect of the new plan.
(11) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (7) insofar as is reasonably practicable in the circumstances.
10.—(1) Subject to the following provisions of this paragraph, the promoter shall repay to the undertaker the reasonable costs and expenses actually incurred (including both internal and external costs and expenses) by the undertaker in reviewing any plans or proposals submitted to it in connection with this part of this Schedule, 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 this part of this Schedule.
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated by the undertaker 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 promoter (such agreement not to be unreasonably withheld or delayed) or, in default of agreement, is not determined by arbitration in accordance with article 63 (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 undertaker by virtue of sub-paragraph (1) shall 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 shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus;
(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 shall be treated as if it also had been agreed or had been so determined; and
(c)where the replacement of existing apparatus with apparatus of a better type, of greater capacity or of greater dimensions is dictated by the undertaker’s current written standards, policies or procedures in place at the time of replacement, this shall not be treated as a placing of apparatus of a better type, of greater capacity or of greater dimensions than those of the existing apparatus.
(5) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 10 (expenses) that it reasonably expects to incur.
(7) The promoter and the undertaker will use their reasonable endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.
(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 28 days of the estimate being agreed under sub-paragraph (7) and in any event not less than 30 days before work is due to commence.
(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall as soon as reasonably practicable notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 14 days.
(10) The undertaker may from time to time issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—
(a)specify the approved purchase order number;
(b)include reasonable supporting evidence that such sums as have been invoiced have been incurred or are committed to be incurred in accordance with the agreed estimate; and
(c)be paid within 28 days of their being received by the promoter’s accounts department.
(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).
11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Order, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the undertaker, the promoter shall—
(a)bear and pay the cost reasonably incurred by the undertaker in making good such damage or restoring the supply; and
(b)subject to sub-paragraphs (2) and (3), make reasonable compensation to the 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 including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay by statute and reasonable ex gratia payments made to customers.
(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.
(3) The undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent (such not to be unreasonably withheld or delayed) of the promoter who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
12. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and the undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.
13. Where in consequence of the proposed construction of any of the authorised development, the promoter or the undertaker requires the removal of apparatus under paragraph 7(2) or the undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall 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 the undertaker shall use its best endeavours to co-operate with the promoter for that purpose.
14. If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to operate, maintain, repair or replace or use the apparatus no less safely, efficiently, economically and effectively than was possible before such obstruction.
15. Any difference or dispute arising between the undertaker and the promoter under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the promoter, be referred to and settled by arbitration under article 63 (arbitration).
1. For the protection of the undertakers referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker, have effect.
2. In this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“alternative apparatus” means alternative apparatus adequate to enable the undertaker to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by the undertaker which for the avoidance of doubt will include substation buildings and chambers;
“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, across, along or upon land;
“plan” includes a section and description of the works to be executed;
“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;
“undertaker” means any licence holder (save for National Grid Electricity Transmission plc and London Power Networks plc) within the meaning of Part 1 of the Electricity Act 1989.
3. This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.
4. Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), the undertaker shall be at liberty at all times 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, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.
5.—(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of the undertaker or any interruption in the supply of electricity by the undertaker is caused, the promoter shall—
(a)bear and pay the cost reasonably incurred by the undertaker in connection with the obstruction or reduction in convenience of the access to any apparatus and or making good such damage or restoring the supply; and
(b)subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker (including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay to its customers by statute and reasonable ex gratia payments made to customers in addition thereto) by reason or in consequence of any such obstruction or reduction in convenience of the access to any apparatus or damage or interruption.
(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any obstruction or reduction in convenience of the access to any apparatus or damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.
(3) The undertaker shall give the promoter reasonable notice of any such claim or demand or intended ex gratia payment to be made and no settlement or compromise thereof shall be made without the consent of the promoter (such consent not to be unreasonably withheld or delayed) who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
6.—(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of the undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker not less than 56 days’ written notice of that requirement, together with a plan and draft programme 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 the undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), on terms no less favourable on the whole to the undertaker than those that relate to the apparatus to be removed afford to the undertaker the necessary—
(a)facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter is unable to afford or procure 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 undertaker shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, but for the avoidance of doubt such reasonable endeavours shall not include the exercise of the undertaker’s statutory powers unless the undertaker elects to do so.
(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in accordance with the undertaker’s specifications, standards, policies and procedures and in such manner and in such line or situation as may be agreed between the undertaker and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(5) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 no longer required by virtue of the construction and bringing into service of the alternative apparatus as required by the promoter to be removed under the provisions of this part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker 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 promoter in accordance with the exercise of the powers conferred by this Order, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker provided that such works are undertaken by the promoter and or its subcontractors in accordance with the undertaker’s plans, specifications, standards and policies and is undertaken by contractors who are approved to work on the undertaker’s apparatus and carry insurances acceptable to the undertaker. Any superintendence given by the undertaker shall not reduce the promoter’s liability under this Schedule.
(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
7.—(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to the undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as are no less favourable on the whole to the undertaker than those that related to the removed apparatus or as may otherwise be agreed between the promoter and the undertaker or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—
(a)give effect to all reasonable requirements of the promoter and the undertaker for ensuring the safety and efficient operation of the authorised development and the undertaker’s distribution network and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the promoter 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 undertaker 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 shall make such provision for the payment of compensation by the promoter to the undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
8.—(1) Not less than 56 days before starting the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus (wherever situated) the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker a plan.
(2) In relation to works which will or may be situated over or within 90 metres measured in any direction of, or (wherever situated) may impose any load directly or indirectly upon any apparatus or remove from or impact upon support for any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—
(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;
(d)the position of all apparatus within 90 metres of the works or upon which the works will or may impose a load or may remove from or affect support for any apparatus;
(e)by way of detailed drawings, every alteration proposed to be made to any such apparatus
(f)the proposed programme for carrying out such works; and
(g)the proposed measure to mitigate the impact of such works on the undertaker’s apparatus.
(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.
(4) Any approval of the undertaker required under sub-paragraph (3)—
(a)may be given subject to reasonable conditions for any purpose mentioned in subparagraph (6); and
(b)shall not be unreasonably withheld.
(5) If the undertaker fails to respond to a plan submitted under subparagraph (1) within 35 days of its submission, the promoter may send a written reminder to the undertaker, and if the undertaker has is neither given nor refused its approval within 14 days of the issue of such reminder, such approval it shall be deemed to have been given.
(6) In relation to a work to which sub-paragraph (2) applies, the undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus.
(7) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (8) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus, and the undertaker shall be entitled to watch and inspect the execution of those works.
(8) Any requirements made by the undertaker under sub-paragraph (7) shall be made within a period of 56 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(9) If the undertaker, in accordance with sub-paragraph (8) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).
(10) Nothing in this paragraph shall preclude the promoter from submitting at any time or from time to time, but in no case less than 56 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 shall apply to and in respect of the new plan.
(11) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (7) insofar as is reasonably practicable in the circumstances.
9.—(1) Subject to the following provisions of this paragraph, the promoter shall repay to the undertaker the reasonable costs and expenses actually incurred (including both internal and external costs and expenses) by the undertaker in reviewing any plans or proposals submitted to it in connection with this part of this Schedule, 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 this part of this Schedule.
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated by the undertaker 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 promoter (such agreement not to be unreasonably withheld or delayed) or, in default of agreement, is not determined by arbitration in accordance with article 63 (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 undertaker by virtue of sub-paragraph (1) shall 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 shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus;
(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 shall be treated as if it also had been agreed or had been so determined; and
(c)where the replacement of existing apparatus with apparatus of a better type, of greater capacity or of greater dimensions is dictated by the undertaker’s current written standards, policies or procedures in place at the time of replacement, this shall not be treated as a placing of apparatus of a better type, of greater capacity or of greater dimensions than those of the existing apparatus.
(5) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 9 that it reasonably expects to incur.
(7) The promoter and the undertaker will use their reasonable endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.
(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 28 days of the estimate being agreed under sub-paragraph (7) and in any event not less than 30 days before work is due to commence.
(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall as soon as reasonably practicable notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 14 days.
(10) The undertaker may from time to time issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—
(a)specify the approved purchase order number;
(b)include reasonable supporting evidence that such sums as have been invoiced have been incurred or are committed to be incurred in accordance with the agreed estimate; and
(c)be paid within 28 days of their being received by the promoter’s accounts department.
(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).
10. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and the undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.
11. Where in consequence of the proposed construction of any of the authorised development, the promoter or the undertaker requires the removal of apparatus under paragraph 7(2) or the undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall 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 the undertaker shall use its best endeavours to co-operate with the promoter for that purpose.
12. If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to operate, maintain, repair or replace or use the apparatus no less safely, efficiently, economically and effectively than was possible before such obstruction.
13. Any difference or dispute arising between the undertaker and the promoter under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the promoter, be referred to and settled by arbitration under article 63 (arbitration).
1. For the protection of the undertakers referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker concerned, have effect.
2. In this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means, in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;
“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, across, along or upon land;
“plan” includes a section and description of the works to be executed;
“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;
“undertaker” means a gas transporter (save for National Grid Gas plc) within the meaning of Part 1 of the Gas Act 1986.
3. This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.
4. Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), an undertaker shall be at liberty at all times 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, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.
5.—(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of any undertaker or any interruption in the supply of gas, as the case may be, by the undertaker is caused, the promoter shall—
(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and
(b)subject to sub-paragraphs (2) and (3), make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by that undertaker, by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an undertaker, its officers, servants, contractors or agents.
(3) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of the promoter who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
6.—(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of an undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker in question 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 an undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), afford to the undertaker the necessary
(a)facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter 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 undertaker in question shall, on receipt of a written notice to that effect from the promoter, 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 promoter under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(5) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 promoter to be removed under the provisions of this part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker in question 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 promoter, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker.
(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
7.—(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to an undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the promoter and the undertaker in question or in default of agreement settled by arbitration in accordance with article 63 (arbitration).
(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—
(a)give effect to all reasonable requirements of the promoter 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 the authorised development, its safety or its efficient operation; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the promoter 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 more or less favourable on the whole to the 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 shall make such provision for the payment of compensation to or by the promoter by or to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
8.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 7(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker in question a plan.
(2) In relation to works which will or may be situated over or within 15 metres measured in any direction of, or (wherever situated) impose any load directly upon any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—
(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;
(d)the position of all apparatus within 15 metres of the works or upon which the works will impose a load; and
(e)by way of detailed drawings, every alteration proposed to be made to any such apparatus.
(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.
(4) Any approval of the undertaker required under sub-paragraph (2)—
(a)may be given subject to reasonable conditions for any purpose mentioned in subparagraph (5);
(b)shall not be unreasonably withheld; and
(c)shall be deemed to have been given if it is neither given nor refused within 21 days of the submission of plans for approval.
(5) In relation to a work to which sub-paragraph (2) applies, the specified undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Works of the type referred to in paragraph 7(2) shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (7) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the undertaker shall be entitled to watch and inspect the execution of those works.
(7) Any requirements made by an undertaker under sub-paragraph (6) shall be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(8) If an undertaker in accordance with sub-paragraph (7) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).
(9) Nothing in this paragraph shall preclude the promoter 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 shall apply to and in respect of the new plan.
(10) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (6) insofar as is reasonably practicable in the circumstances.
9.—(1) Subject to the following provisions of this paragraph, the promoter shall repay to an undertaker the reasonable expenses incurred by that 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 shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions 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 promoter or, in default of agreement, is not determined by arbitration in accordance with article 63 (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 undertaker in question by virtue of sub-paragraph (1) shall 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 shall 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 shall 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 an undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 9 that it reasonably expects to incur.
(7) The promoter and the undertaker will use their best endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.
(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 21 days of the estimate being agreed under sub-paragraph (7).
(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall forthwith notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 7 days.
(10) The undertaker may from time to time, and at least bi-monthly issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—
(a)specify the approved purchase order number;
(b)be supported by timesheets and narratives that demonstrate that the work invoiced has been completed in accordance with the agreed estimate; and
(c)be paid within 28 days of their being received by the promoter’s accounts department.
(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).
10. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and an undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.
11. Where in consequence of the proposed construction of any of the authorised development, the promoter or an undertaker requires the removal of apparatus under paragraph 7(2) or a specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall 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 each specified undertaker shall use its best endeavours to co-operate with the undertaker for that purpose.
12. If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will, so far as reasonably practicable, enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.
13. Any difference or dispute arising between the undertaker and the promoter under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the promoter, be referred to and settled by arbitration under article 63 (arbitration).
1. The provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the Port of London Authority, have effect for the protection of the Port of London Authority.
2. The construction or carrying out of any tidal work is not subject to any of the controls in sections 66-75 of the 1968 Act.
3. In this Part of this Schedule—
“the 1968 Act” means the Port of London Act 1968;
“detailed submission programme” means a programme setting out the anticipated dates for submissions seeking approval of detailed design of tidal works under paragraph 4;
“navigational risk assessment” means assessment of any potential risk of the tidal works at each site, and shall contain the following information:
existing navigational features including extent of authorised channels, existing navigational structures and constraints;
tidal characteristics;
existing river uses;
general navigational arrangements;
existing site specific issues;
existing navigational risks;
proposed navigational strategies;
delivery schedules; and
such other details as agreed between the undertaker and the Authority;
“permanent work” means any work or structure forming part of the authorised development that is required for the construction and operation of the authorised project that is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;
“plans and sections” includes sections, elevations, drawings, calculations, specifications, programmes, method statements, assessments of navigational risk and hydraulic information relating to the construction, carrying out and, where appropriate, removal of any tidal work;
“scour and accretion monitoring and mitigation strategy” means a scour and accretion monitoring and mitigation strategy for the tidal works to be submitted to the Authority including, but not limited to, results and clarification of existing and further works, and the extent, frequency, and form of the monitoring and mitigation for scour and accretion;
“scour and accretion monitoring and mitigation plan” means a plan prepared in accordance with paragraph 17;
“site” means Putney Embankment Foreshore, Carnwath Road Riverside, Dormay Street, Cremorne Wharf Depot, Chelsea Embankment Foreshore, Kirtling Street, Heathwall Pumping Station, Albert Embankment Foreshore, Victoria Embankment Foreshore, Blackfriars Bridge Foreshore, Chambers Wharf, Greenwich Pumping Station and King Edward Memorial Park Foreshore, Abbey Mills or any of them;
“specified day” means, in relation to any tidal work, the business day on which plans and sections of that work are received by the Authority under paragraph 5(1);
“temporary work” means any work or structure forming part of the authorised development that is not required for the operation of the authorised project and which is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;
“tidal work” means any permanent or temporary work or operation excluding any tunnelling works, constructed or carried out under this order that is, or may be on, in, under or over the surface of land below mean high water level forming part of the river, including
any projection over the river outside the order limits by booms, cranes and similar plant or machinery, whether or not they are situated within the order limits;
the placing or maintenance of apparatus, plant or equipment;
any survey or monitoring works undertaken pursuant to article 22 (authority to survey and investigate land) or maintenance works undertaken pursuant to article 36 (temporary use of land for maintaining authorised project) which would if not for the provisions of this order require a licence pursuant to section 66 of the 1968 Act;
any such work or operation (including any suspension or extinguishment of public rights of navigation under article 47 (public rights of navigation)) that affects the river or any function of the Authority, whether or not that work or operation is in, over or under the river,
but does not include maintenance dredging; and
“tunnelling works” means works 1a to 1d, 3b, 4b, 5b, 7, 10b, 11b, 12b, 14b, 15b, 16b and 20 so far as these works are under the river.
4.—(1) The time limits for which this Part of this Schedule provides are subject to the provisions of this paragraph.
(2) The undertaker shall submit the detailed submission programme to the Authority for comment.
(3) If, by reason of the number or complexity of the submissions anticipated in the detailed submission programme, the Authority (acting reasonably) is of the view that it could not, while continuing to perform its statutory functions without interruption, comply with any time limit for which this Part of the Schedule provides, the Authority will notify the undertaker in writing within 15 business days of receiving the detailed submission programme.
(4) A notice given under paragraph 4(3) shall include the Authority’s reasonable estimate of the time required for it to deal with the submission or submissions identified pursuant to paragraph 4(3), such an estimate not to exceed 65 business days from the anticipated date of receipt of the relevant submission as identified in the detailed submission programme, and the Authority shall thereafter determine such a submission within the estimate included in its notice given pursuant to this paragraph.
5.—(1) Before—
(a)commencing the construction or carrying out of a tidal work; or
(b)commencing any operation for the maintenance of a tidal work,
the undertaker shall submit to the Authority plans and sections of the tidal work, a scour and accretion monitoring and mitigation plan relating to the tidal work, a navigational risk assessment, its proposals for any lighting and laying down of buoys to secure the navigational safety of the river in the vicinity of the proposed tidal works (including any area over which public rights of navigation have been suspended) and such further particulars as the Authority may reasonably require.
(2) A tidal work shall not be constructed, carried out or maintained except in accordance with plans and sections approved in writing by the Authority under this paragraph or determined under paragraph 24.
(3) Any approval of the Authority required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable conditions as the Authority may make for the protection of—
(a)traffic in, or the flow or regime of, the river;
(b)the use of its operational land or the river for the purposes of performing its functions; or
(c)the performance of any of its functions connected with environmental protection.
(4) Conditions made under paragraph 5(3) may include conditions as to—
(a)the proposed location of any temporary work and its dimensions;
(b)the length of time that any temporary work may be kept in place;
(c)the removal of any temporary work and the undertaking by the undertaker of any related work or operation that the Authority considers to be necessary for the purpose of removing or preventing any obstruction to navigation;
(d)the relocation, provision and maintenance of works (other than tidal works), moorings, apparatus and equipment necessitated by the tidal work; and
(e)the expiry of the approval if the undertaker does not commence construction or carrying out of the approved tidal work within a prescribed period.
(5) Subject to paragraph 5(6) and paragraph 5(7), an application for approval under this paragraph shall be deemed to have been refused if it is neither given nor refused within 35 business days of the specified day.
(6) An approval of the Authority under this paragraph shall not be deemed to have been unreasonably withheld if approval within the time limit specified by paragraph 5(5) has not been given pending the outcome of any consultation on the approval in question that the Authority is obliged to carry out in the proper exercise of its functions.
(7) In the event that the Authority requires further information pursuant to paragraph 5(1), then the Authority shall determine the submission submitted pursuant to paragraph 5(1) as soon as reasonably practicable, but in any event no later than 65 business days from the specified day.
(8) An approval of the Authority under this paragraph is evidence that the plans and sections to which the approval relates have been approved only as affecting the Authority, the Authority’s functions and the River in relation to those functions, and does not imply approval or endorsement of the plans and sections for any other purpose.
6.—(1) The undertaker shall serve notice on the Authority under Article 47(3) not later than 20 business days prior to the proposed commencement date of any suspension or extinguishment of the public rights of navigation.
(2) Any such notice shall provide details (or in the case of a consent notice, proposed details) of the suspension or extinguishment including particulars of:
(a)commencement date;
(b)duration; and
(c)the affected area
and in the case of a consent notice shall include an explanation of the need for the proposed closure.
(3) Any suspension of the public rights of navigation under article 47(2) shall not take place except in accordance with approval in writing by the Authority and any conditions imposed by the Authority under this paragraph or determined under paragraph 24.
(4) The Authority may in relation to any consent notice impose reasonable conditions for any purpose described in paragraph 6(3).
(5) Conditions imposed under paragraph 6(4) may include conditions as to–
(a)the limits of any area subject to a temporary suspension of public rights of navigation;
(b)the duration of any temporary suspension;
(c)the means of marking or otherwise providing warning in the river of any area affected by a temporary suspension or permanent extinguishment of public rights of navigation; and
(d)the use by the undertaker of the area subject to any temporary suspension so as not to interfere with any other part of the river or affect its use.
(6) For the purposes of Article 47(4) the Authority shall issue its notice to mariners:-
(a)in relation to a temporary suspension or permanent extinguishment under article 47(1) within 15 business days of receipt of the undertaker’s notice served pursuant to paragraph 6(1);
(b)in relation to a temporary suspension under Article 47(2) within 15 business days of consent to the suspension being given by the Authority or determined pursuant to paragraph 24.
(7) Sub-paragraphs (5), (6) and (7) of paragraph 5 apply to any application for consent made by the undertaker under Article 47(2).
(8) In this paragraph “consent notice” means a notice relating to temporary suspension requiring consent under Article 47(2).
7. The construction or carrying out of any tidal work shall, once commenced, be carried out by the undertaker with all reasonable dispatch and to the reasonable satisfaction of the Authority so that river traffic, the flow or regime of the river and the exercise of the Authority’s functions shall not suffer more interference than is reasonably practicable, and the Authority shall be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.
8. The undertaker shall not, in exercise of the powers conferred by article 19 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved (or determined under paragraph 24) as a tidal work or is otherwise approved in writing by the Authority.
9.—(1) The undertaker shall not without the consent of the Authority—
(a)deposit in or allow to fall or be washed into the river any gravel, soil or other material;
(b)discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise; or
(c)directly or indirectly discharge any water into the river.
(2) Any consent of the Authority under this paragraph shall not be unreasonably withheld but may be given subject to such terms and conditions as the Authority may reasonably impose.
(3) Any such consent shall be deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 5 business days of the day on which the request for consent is submitted under paragraph 9(1).
(4) Article 19 (discharge of water) has effect subject to this paragraph.
10.—(1) The undertaker shall, at or near any tidal work, and any other work below mean high water level of which the undertaker is in possession, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Authority may from time to time reasonably require.
(2) The Authority shall give the undertaker not less than 20 business days written notice of a requirement under paragraph 10(1) except in the case of emergency when the Authority shall give such notice as is reasonably practicable.
(3) Without prejudice to section 133 of the 1968 Act (Lights detrimental to navigation), the undertaker shall comply with the directions of the Harbour Master from time to time with regard to the lighting on the tidal works, or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river.
11.—(1) Subject to paragraph 11(2), if by reason of the construction of any tidal work it is reasonably necessary for the Authority to incur the cost of—
(a)temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Authority;
(b)laying down and removing substituted moorings or buoys; or
(c)carrying out dredging operations for any such purpose;
not being costs which it would have incurred for any other reason, the undertaker shall pay the costs reasonably so incurred by the Authority.
(2) The Authority shall give to the undertaker not less than 20 business days’ notice of its intention to incur such costs, and take into account any representations which the undertaker may make in response to the notice within 10 business days of the receipt of the notice.
12.—(1) On completion of the construction or carrying out of any part of a permanent work, authorised by this Order the undertaker shall as soon as practicable remove—
(a)any temporary work carried out only for the purposes of that part of the permanent work; and
(b)any materials, plant and equipment used for such construction or carrying out,
and shall make good the site of the permanent work to the reasonable satisfaction of the Authority.
(2) Accordingly, on completion of the construction of the authorised development everything within the description in paragraph 12(1)(a) or (b) and relating to the authorised development shall have been removed as soon as reasonably practicable in accordance with this paragraph.
13. The undertaker shall, at its own expense, carry out the following surveys, the scope of which shall be agreed by the undertaker and the Authority—
(a)before the commencement of construction or carrying out of the first tidal work to be commenced following approval under paragraph 5, a survey of such parts of the river as might be affected by sedimentation or scouring that might result from the construction of so much of the authorised project as would comprise tidal works if they were to be constructed, such survey being for the purpose of establishing the condition of the river at the time the survey is carried out;
(b)before the commencement of construction or carrying out of any tidal work approved under paragraph 5, a survey of such parts of the river as might be affected by sedimentation or scouring resulting from that tidal work, such survey being for the purpose of establishing the condition of the river at the time the survey is carried out;
(c)during the construction or carrying out of any tidal work, such surveys of the river (for the purpose of ascertaining the effect of that tidal work on the river) as are stipulated in the scour and accretion monitoring and mitigation strategy or the relevant scour and accretion monitoring and mitigation plan; and
(d)after completion of, respectively, any tidal work and all the tidal works constructed or carried out under this Order, a survey of the completed tidal works as constructed or carried out (for the purpose of establishing the condition of the river and the effect that the tidal work or the authorised project is, or as the case may be the tidal works are, having on sedimentation or scouring, the flow and regime of the river, the navigation of the river or the protection of structures within the river or the exercise of the Authority’s functions) as are stipulated in the scour and accretion monitoring and mitigation strategy or the relevant scour and accretion monitoring and mitigation plan.
14.—(1) This paragraph applies if any part of the river has become or is likely to become subject to sedimentation, scouring or other changes in the flow or regime of the river which—
(a)is wholly or partly caused by a tidal work during the period beginning with the commencement of construction of the tidal work and (subject to sub-paragraph (4)) ending with the expiration of 6 years after the date of completion of all the tidal works comprised in the authorised project; and
(b)for the safety of navigation or for the protection of any works in the river, should in the reasonable opinion of the Authority be removed or made good.
(2) The undertaker shall either—
(a)pay to the Authority any additional expense to which the Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or
(b)carry out the necessary dredging or work to make good the scouring at its own expense and subject to the prior approval of the Authority which may be subject to reasonable conditions but which may not be unreasonably withheld or delayed;
and the expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Authority in carrying out surveys or studies which may be agreed with the undertaker in connection with the implementation of this paragraph.
(3) The Authority may serve notice on the undertaker before the expiration of 6 years after the date of completion of all the tidal works comprised in the authorised project stating that in the opinion of the Authority the river or any part of it may become subject to sedimentation, scouring or other changes in the flow or regime of the river after the expiry of the said six year period. Any such notice shall specify the additional period for protection (which cannot exceed a period of 10 years after the date of completion of all the tidal works comprised in the authorised project) and the Authority’s case for requiring this.
(4) On receipt of any notice the undertaker may serve a counter-notice within 15 business days beginning on the day the notice was received such notice to include details of the undertaker’s objection to the Authority’s notice or any conditions it may wish to impose on compliance by the undertaker with the Authority’s notice.
(5) In the event that the Authority and the undertaker cannot agree the matters raised in the Authority’s notice and the undertaker’s counter-notice within two months from the service of the undertaker’s counter-notice either party may refer the matter to arbitration under paragraph 24.
(6) If the undertaker fails to serve a counter-notice or if it serves a counter-notice and the matter is either agreed between the Authority and the undertaker or determined pursuant to paragraph 14(5) then the provisions of paragraph 14(1) and (2) shall apply during such additional period as specified in the Authority’s notice or as may be agreed or determined pursuant to paragraph 14(5).
15.—(1) If any tidal work is constructed or carried out—
(a)otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph 5; or
(b)during construction is found (when measured against any of the surveys carried out under paragraph 13(1)(a) and (b)) to give rise to sedimentation or scouring that is detrimental to traffic in, or the flow or regime of, the river,
then the Authority may by notice in writing require the undertaker at its own expense to comply with the remedial requirements specified in the notice.
(2) The requirements that may be specified in a notice given under paragraph 15(1) are—
(a)in the case of a tidal work to which paragraph 15(1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—
(i)this Part of this Schedule; or
(ii)the condition that has been breached; or
(b)in any case within paragraph 15(1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation or scouring, so far as required by the needs of traffic in, or the flow or regime of, the river.
(3) If the undertaker does not comply with a notice under paragraph 15(1), or is unable to do so then the Authority may in writing require the undertaker to—–
(a)remove, or alter the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Authority reasonably requires) to its former condition; or
(b)take such other action as the Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.
(4) If—
(a)the undertaker becomes aware that a tidal work is giving rise to environmental impacts over and above those reported in the environmental statement; or
(b)the Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by the environmental statement and the Authority notifies the undertaker of that environmental impact, the reasons why the Authority believes that the environmental impact is being caused by a tidal work and of the measures that the Authority reasonably believes are necessary to counter or mitigate that environmental impact,
the undertaker shall implement the measures that the Authority has notified to the undertaker or shall implement such other measures as agreed between the undertaker and the Authority.
16.—(1) If any pile, stump or other obstruction to navigation becomes exposed as a result of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker shall, as soon as reasonably practicable after the receipt of notice in writing from the Authority requiring such action, remove it from the river or, if it is not reasonably practicable to remove it—
(a)cut the obstruction off at such level below the bed of the river as the Authority may reasonably direct; or
(b)take such other steps to make the obstruction safe as the Authority may reasonably require.
(2) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the undertaker.
17.—(1) The undertaker shall submit a scour and accretion monitoring and mitigation strategy to the Authority for approval, such determination to be given—
(a)by 30th September 2014; or
(b)within 5 business days of this Order coming into force; or
(c)by the expiry of 20 business days from receipt of the submission made under this paragraph,
whichever is the latest.
(2) Prior to the commencement of any tidal work, a scour and accretion monitoring and mitigation plan for that tidal work shall be prepared by the undertaker in accordance with the scour and accretion monitoring and mitigation strategy approved under paragraph 17(1) or otherwise determined, and the scour and accretion monitoring and mitigation plan shall be submitted to the Authority for approval within 35 business days of the specified day.
(3) Following any submission of a scour and accretion monitoring and mitigation plan under paragraph 17(2), the approval process in paragraph 5 shall apply to such submission as if it were a submission under paragraph 5(1) and the “specified day” shall be the first business day on which such submission is received by the Authority under paragraph 17(2).
(4) The carrying out of any tidal work shall proceed only in accordance with the scour and accretion monitoring and mitigation plan as approved by the Authority under paragraph 17(2).
18.—(1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers of this order (being a work which is below mean high water level) is abandoned or falls into decay, the Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either—
(a)to repair or restore the work, or any part of it; or,
(b)to remove the work and (to such extent as the Authority reasonably requires) to restore the site of the work to its former condition.
(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either—
(a)to repair and restore the work or part of it; or
(b)if the undertaker so elects, to remove the tidal work and (to such extent as the Authority reasonably requires) to restore the site of the work to its former condition.
(3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the undertaker.
19.—(1) Notwithstanding any rule of law, any permanent work that is constructed in, on under or over land that is not acquired by the undertaker shall remain vested in the undertaker and shall not be annexed to the land.
(2) The Authority will grant to the undertaker a licence under section 66 of the 1968 Act in respect of any work to which sub-paragraph (1) applies.
20.—(1) The undertaker shall not in the exercise of the powers granted by this order interfere with any marks, lights or other navigational aids in the river without the agreement of the Authority, and shall ensure that access to such aids remains available during and following construction of any tidal works.
(2) The undertaker shall at any tidal works provide, or afford, reasonable facilities (including an electricity supply) for the Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar, or other apparatus for the benefit, control and direction of navigation as the Authority may deem necessary by reason of the construction or carrying out of any tidal works, and shall ensure that access remains available to apparatus during and following construction of or carrying out of such works.
21.—(1) The undertaker shall be responsible for and make good to the Authority all financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Authority by reason of—
(a)the construction or operation of the authorised project or the failure of any works comprised within it;
(b)anything done in relation to a mooring or buoy pursuant to paragraph 10; or;
(c)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised project or dealing with any failure of the authorised project;
(d)and the undertaker shall indemnify the Authority from and against all claims and demands arising out of or in connection with the authorised project or any such failure, act or omission.
(2) The fact that any act or thing may have been done—
(a)by the Authority on behalf of the undertaker; or
(b)by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Authority, or in a manner approved by the Authority, or under its supervision or the supervision of its duly authorised representative;
shall not (if it was done or required without negligence on the part of the Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.
(3) In complying with the indemnity provisions pursuant to this paragraph the undertaker’s liability shall either be limited to a sum to be agreed between the parties or unlimited.
(4) The Authority shall give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the undertaker.
22. For the avoidance of doubt, section 73 of the 1968 Act shall apply to any maintenance dredging carried out by the undertaker.
23.—(1) The undertaker shall serve notice in writing of any transfer made pursuant to Article 9 upon the Authority together with a copy of the instrument or deed effecting such transfer within 10 business days of any such transfer.
(2) The undertaker shall serve a copy of its application to discharge requirement PW4 in the Order upon the Authority within 10 business days of the submission of such application.
(3) The undertaker shall inform the Authority in writing of the intended start date and the likely duration of tidal works on a site at least 10 business days prior to the commencement of the first tidal work on that site.
(4) The undertaker shall serve notice in writing specifying the details of the vertical and horizontal alignment of any tunnelling works at least 10 business days prior to the carrying out of the tunnelling works to which the notice relates.
(5) Not less than 3 months after the completion of construction of any tidal work or any tunnelling works in the river the undertaker shall provide to the Authority plans and sections of the work as constructed.
24. Any dispute arising between the undertaker and the Authority under this Part of this Schedule shall be determined by arbitration in accordance with article 63 (arbitration) unless otherwise agreed in writing by the undertaker and the Authority.
1. The following provisions shall apply for the protection of the Environment Agency (in this schedule referred to as “the Agency”).
2. The requirement for consent under Section 109 of the Water Resources Act and Thames Region Land Drainage bylaws 1981 (made pursuant to Section 34 of the Land Drainage Act 1976) shall not be required for the authorised development subject to the conditions contained in this Schedule.
3. In this Schedule—
“authorised project work” means any work forming part of the authorised project;
“baseline monitoring” means any surveys carried out to determine and establish movements of the flood defences due to factors external to the authorised project including but not limited to seasonal variations or diurnal impacts due to tide or temperature;
“CEMP” means the construction environment management plan to be produced for each site in accordance with the CoCP;
“COCP” means the Code of Construction Practice Part A— General Requirements (document reference number APP205.01) or the Code of Construction Practice Part B— Site Specific Requirements (document reference number APP178.03 to APP178.49);
“construction” includes execution, placing, altering, replacing, relaying, removal and excavation and “construct” and “constructed” shall be construed accordingly;
“damage” includes but is not limited to scouring, erosion, loss of structural integrity and environmental damage to the drainage work or any flora or fauna dependent on the aquatic environment and “damaged” shall be construed accordingly;
“detailed designs” means any information submitted under paragraph 5(1)a-l;
“drainage work” means any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring or flood storage capacity;
“engineering report” means a report of the structural condition of a flood defence as set out in paragraph 4(1);
“ecological enhancements” means the inclusion of any features integral to or adjacent to the foreshore structures and any new, modified, or replaced flood defences that can support wildlife. This includes, but is not limited to, where practicable, the set back of flood defences to provide inter-tidal habitat and the creation of shelters for juvenile fish;
“environmental duties” means the Agency’s duties in the Environment Act, the Natural Environment and Rural Communities Act 2006 and the Water Environment (Water Framework Directive)(England and Wales) Regulations 2003 (SI 2003 no 3242);
“fishery” means any waters containing fish, and fish in or migrating to or from such waters and the spawn, spawning grounds or food for such fish;
“flood defences” means any bank, wall, embankment, bridge abutments, lock gates or other structure or any appliance (including any supporting anchorage system) that fulfils a function of preventing, or reducing the risk of, flooding to land or property;
“flood defence monitoring plan” means a flood defence monitoring plan prepared in accordance with paragraph 4(2);
“flood defence movement and settlement mitigation plan” means a flood defence movement and settlement mitigation plan prepared in accordance with paragraph 4(5);
“flood storage capacity” means any land, which, taking account of flood defences, is expected to provide flood storage capacity for any main river;
“flood defences likely to be impacted” means—
all flood defences within the order limits;
all flood defences within 16m of the order limits of any site;
all flood defences within the 1mm settlement contour for the final tunnel alignment,
and “likely to impact a flood defence” shall be construed accordingly;
“flood defences likely to be significantly impacted” means those flood defences identified and agreed between the undertaker and the Agency following the submission of relevant engineering reports;
“main river” “means all watercourses shown as such on the statutory main river maps held by the Agency and the Department of Environment, Food and Rural Affairs, including any structure or appliance for controlling or regulating the flow of water into, in or out of the channel;
“maintenance” has the same meaning as article 2 save for the exclusion of the works of inspection;
“protective work” means any authorised project work, or work identified pursuant to the engineering report, necessary for the protection of flood defences and to be carried out prior to the construction of any authorised project work to which the protective work relates;
“remedial works” means any proposed mitigation or measure or measures submitted by the undertaker under paragraph 5(4) or required by the Agency under paragraph 9 or paragraph 10;
“scour and accretion monitoring and mitigation strategy” means a scour and accretion monitoring and mitigation strategy for the specified works in the foreshore to be submitted to the Agency including, but not limited to, results and clarification of existing and further works, and the extent, frequency, and form of the monitoring and mitigation for scour and accretion;
“scour and accretion monitoring and mitigation plan” means a plan drawn up detailing the monitoring and mitigation proposals for each specified work prepared in accordance with the scour and accretion monitoring and mitigation strategy;
“site” means Abbey Mills, Putney Embankment Foreshore, Carnwath Road Riverside, Dormay Street, Cremorne Wharf Depot, Chelsea Embankment Foreshore, Kirtling Street, Heathwall Pumping Station, Albert Embankment Foreshore, Victoria Embankment Foreshore, Blackfriars Bridge Foreshore, Chambers Wharf, Greenwich Pumping Station and King Edward Memorial Park Foreshore, or any of them;
“specified day” means, unless otherwise agreed in writing by the Agency and the undertaker, in relation to any specified work, maintenance work, remedial work or removal work submitted for approval under paragraph 5, the business day on which detailed designs of that work are received by the Agency under paragraph 5(1), 5(3), 5(4), or 5(5) and for the avoidance of doubt if any further information is requested by the Agency under paragraph 5(1)(l), 5(3)(d), 5(4)(d), or 5(5)(e) the specified day shall be the business day on which the Agency receives this information from the undertaker under paragraph 5;
“specified works” means so much of any permanent or temporary work or operation excluding works of maintenance forming part of the authorised project (other than works required in an emergency) as is in, on, under or over a main river or drainage works or within 16 metres of a drainage work or is otherwise likely to—
affect any drainage works or the volumetric rate of flow of water in or flowing to or from any drainage works; or
affect the flow, purity or quality of water in any main river or other surface waters or ground water; or
cause obstruction to the free passage of fish or damage to any fishery; or
affect the conservation, distribution or use of water resources; or
affect the conservation value of the main river and habitats in its immediate vicinity;
“TE2100” means the standards associated with the strategic direction for managing flood risk across the Thames estuary, including recommendations for action in short, medium and long term time periods to take account of sea level rise and climate change, as adopted and updated at the time by the Environment Agency.
4.—(1) Prior to the carrying out of any authorised project work which is likely to impact a flood defence, the undertaker shall provide at its own expense for the approval of the Agency, a detailed engineering report of any flood defence likely to be impacted upon by that authorised project work, such engineering report to include but not be limited to—
(a)details of the structural condition of any flood defence likely to be impacted;
(b)the estimated remaining life expectancy of any flood defence in the control or ownership of the undertaker likely to be impacted;
(c)the nature and extent of the predicted impacts on any flood defence;
(d)identification of the flood defences likely to be significantly impacted based on the following criteria—
(i)tunnelling or other construction activities comprised in the authorised project that may lead to a flood defence asset falling below the statutory defence level as agreed by the Agency;
(ii)tunnelling or other construction activities comprised in the authorised project that may lead to an effect on the overall structural integrity of the flood defence; and
(iii)any other criteria as the Agency may reasonably require;
(e)the need for any protective work or protective works required to be carried out prior to the construction of that authorised project work likely to impact a flood defence, so as to ensure the structural integrity of the flood defence likely to be impacted is maintained during construction of that authorised project work;
(f)baseline monitoring of flood defences likely to be significantly impacted unless otherwise agreed with the Agency; and
(g)and such other information as the Agency may reasonably require,
and the relevant authorised project work shall not commence until the engineering report or reports in respect of the flood defence or defences it is likely to impact have been provided to, and approved by, the Agency.
(2) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence monitoring plan for any flood defence likely to be significantly impacted by the authorised project.
(3) The flood defence monitoring plan shall include but not be limited to—
(a)demonstration and justification of the spatial extent and coverage of the monitoring identified as a consequence of the baseline monitoring;
(b)details of the proposed monitoring techniques with consideration of effects of movement in all directions, including differential movements, increases in tie rod stresses and crack and movement joint monitoring;
(c)details of the proposed duration of monitoring and the monitoring frequencies required to establish if external factors are having an effect on readings;
(d)details of the proposed contents of a report on the construction and operational monitoring and proposed trigger levels for associated mitigation;
(e)trigger levels under the flood defence monitoring plan submitted pursuant to paragraph 4(2) above for associated mitigation;
(f)proposed duration and frequency of monitoring during operational phase of the authorised project; and
(g)such other information as the Agency may reasonably require,
(h)and no authorised project work likely to significantly impact a flood defence shall commence until the flood defence monitoring plan for that work has been provided and approved by the Agency.
(4) Monitoring shall be carried out in accordance with the flood defence monitoring plan as approved by the Agency or otherwise determined until—
(a)ground movements attributable to the authorised project have ceased or the rate of settlement is less than or equal to 2mm per year; or
(b)for a period of 1 year following the completion of construction,
whichever is the later.
(5) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence movement and settlement mitigation plan for any flood defence likely to be significantly impacted by the authorised project.
(6) The flood defence movement and settlement mitigation plan shall include but not be limited to—
(a)information from relevant engineering reports;
(b)results of the monitoring carried out in accordance with the flood defence monitoring plan;
(c)timescales to enact short, medium and long term mitigation measures to maintain the standard of flood defence and have due regard to protection of foreshore habitat;
(d)short term mitigation and remediation measures for emergency use, including an emergency response plan;
(e)medium term mitigation and remediation measures for use during construction works;
(f)long term mitigation and remediation measures based on ongoing monitoring, including post construction effects;
(g)hierarchy of mitigation and remediation measures according to the degree of settlement and movement, with full justification to why the chosen technique is appropriate;
(h)methodologies for removal of any structures or mitigation measures;
(i)demonstration that chosen mitigation and remediation techniques are sensitive to the foreshore habitat and hydraulic regime;
(j)demonstration that the mitigation would not preclude options for future raising of defences and associated modification,
and the mitigation shall thereafter be carried out in accordance with the flood defence movement and settlement mitigation plan as approved by the Agency or otherwise determined.
(7) The approval process in paragraph 5 shall apply to the submission of any plan under paragraphs 4(1), 4(2) and 4(5) as if such plan was submitted to the Agency under paragraph 5(1) and the “specified day” shall be the first business day on which submission is received by the Agency under paragraphs 4(1), 4(2) or 4(5), and paragraph 5(6)(a),(b) and (d) shall apply accordingly.
(8) If required by the Agency the undertaker shall construct all or part of any protective works so that they are in place prior to the carrying out of any authorised project work to which they relate.
5.—(1) Before beginning to construct any specified work, the undertaker shall submit to the Agency for its written approval in respect of the specified work concerned—
(a)plans, calculations, cross sections, elevations, drawings, specifications and designs of the specified work together with the details of the positioning of any structure within the main river;
(b)proposals for strengthening, modification, renewal, or replacement of any drainage work required as a result of the anticipated impacts of the specified work;
(c)details of the materials and structural integrity of any flood defence provided as part of the specified work;
(d)demonstration that all flood defences likely to be impacted by the specified work will be fit for purpose for the duration of construction of the specified work;
(e)any proposed mitigation measures to minimise the impact of the specified work on any protective works to the flood defences, on the foreshore, ecologically sensitive areas and the wider environment;
(f)details of any ecological enhancements to be incorporated into the specified work;
(g)demonstration of how any new or reconstructed flood defences on the site of the specified work can be raised or otherwise provided on site in the future to meet TE2100 standards and that these standards can be maintained;
(h)demonstration that both during and post construction of the specified work there will be sufficient land based access to the drainage works for plant and machinery for the Agency to carry out emergency and non-emergency maintenance and repair works;
(i)method statements in respect of the specified work to include both timing of and methods used, sequence of construction and the type, location and storage of all machinery, materials and fuel;
(j)piling method statement specifying type of piling technique proposed, justification of chosen method, mitigation measures and timing of piling works;
(k)any proposals for reinstatement of the foreshore setting out timing of reinstatement works, measures to be used to minimise environmental impact of the specified work, materials to be used, methods of reinstatement and any proposed pollution protection measures;
(l)such further particulars as the Agency may within 20 business days of the receipt of the detailed designs reasonably require.
(2) Any such specified work shall not be constructed except in accordance with all detailed designs as may be approved in writing by the Agency under paragraph 5(1), or settled in accordance with paragraph 13 where applicable, and in accordance with any conditions or requirements specified under paragraph 5(6)(c) save that where any variation is permitted pursuant to the terms of this Order the undertaker shall submit any details so varied to the Agency.
(3) Before commencing any maintenance works within 16 metres of a drainage work the undertaker shall submit to the Agency for its written approval—
(a)time and duration of anticipated maintenance works;
(b)details of equipment and machinery to be used during the construction of the maintenance works;
(c)type, location and storage of all machinery, materials and fuel to be used during the construction of the maintenance works; and
(d)such other information as the Agency reasonably requests.
(4) Before commencing any remedial works, the undertaker shall submit to the Agency for its written approval—
(a)time and duration of the anticipated remedial works;
(b)details of equipment and machinery to be used during the remedial works;
(c)type, location and storage of all machinery, materials and fuel to be used during the construction of the remedial works; and
(d)such other information as the Agency reasonably requests.
(5) Prior to removal of in-river structures including, but not limited to, the removal of the aprons of any existing outfalls made redundant by the authorised project, the undertaker shall submit to the Agency for its written approval details of the activity including—
(a)time and duration of the works for removal;
(b)details of equipment and machinery to be used during the works for removal;
(c)type, location and storage of all machinery, materials and fuel;
(d)any proposals for reinstatement of the foreshore setting out timing of reinstatement works, measures to be used to minimise environmental impact of the works, materials to be used, methods of reinstatement and any proposed pollution protection measures; and
(e)such other information as the Agency reasonably requests.
(6) Any approval of the Agency required under paragraphs 5(1), 5(3) 5(4) and 5(5)—
(a)shall not be unreasonably withheld;
(b)in the case of a refusal, accompanied by a statement of the grounds of refusal;
(c)may be given subject to such reasonable requirements or conditions as the Agency may make for the protection of any drainage work, fishery, main river or water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties; and
(d)shall be deemed to have been refused if it is neither given nor refused within 35 business days of the specified day unless otherwise agreed.
(7) Without limitation on the scope of paragraph 5(6) the requirements or conditions which the Agency may make under paragraph 5(6) include conditions requiring the undertaker at its own expense to construct such protective works (including any new works as well as alterations to existing works) as are reasonably necessary—
(a)to safeguard any drainage work or flood defence against damage; or
(b)to secure that the efficiency or effectiveness of the drainage work for flood defence purposes is not impaired; or
(c)to ensure the risk of flooding is not otherwise increased by reason of any specified work, maintenance work or protective work,
during the construction of or by reason of the authorised project works.
(8) Any dispute in respect of any approval or refusal under paragraph 5 shall be subject to the dispute resolution procedure in paragraph 13.
6.—(1) All specified works shall be constructed with all reasonable despatch in accordance with the detailed designs or plans approved or settled under this part of this Schedule and to the reasonable satisfaction of the Agency.
(2) An officer of the Agency shall be entitled to watch and inspect the construction of any specified works.
(3) The undertaker shall give to the Agency not less than 10 business days’ notice in writing of its intention to commence construction of the specified works and notice in writing of their completion not later than 5 business days after the date on which they are completed.
(4) If any part of a specified work is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this part of this Schedule or if the undertaker so elects (and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the specified work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(5) Subject to paragraph 6(6), if within a reasonable period, being not less than 28 days from the date when a notice under paragraph 6(4) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the undertaker.
(6) In the event of any dispute as to whether paragraph 6(4) is properly applicable to any work in respect of which notice has been served under that paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not except in emergency exercise the powers conferred by paragraph 6(5) until the dispute has been finally determined.
7. Save as may be authorised by this Order the undertaker shall not damage or obstruct any drainage works during the construction of the specified works.
8.—(1) The undertaker shall submit a scour and accretion monitoring and mitigation strategy to the Agency for approval, such approval to be given—
(a)by 30th September 2014; or
(b)within 5 business days of the grant of the DCO; or
(c)by the expiry of 20 business days from receipt of the submission made under this paragraph,
whichever is the latest.
(2) Prior to the commencement of any specified work, a scour and accretion monitoring and mitigation plan for that specified work shall be prepared by the undertaker in accordance with the scour and accretion monitoring and mitigation strategy approved under paragraph 8(1) or otherwise determined, and the scour and accretion monitoring and mitigation plan shall be submitted to the Agency for approval within 35 business days of the specified day.
(3) Following any submission of a scour and accretion monitoring and mitigation plan under paragraph 8(2), the approval process in paragraph 5 shall apply to such submission as if it were a submission under paragraph 5(1) and the “specified day” shall be the first business day on which such submission is received by the Agency under paragraph 8(2).
(4) The construction of any specified work shall proceed only in accordance with the scour and accretion monitoring and mitigation plan as approved by the Agency under paragraph 8(2).
9.—(1) Any work constructed under this Order for the purpose of providing a flood defence or replacing an existing flood defence shall be maintained to the reasonable satisfaction of the Agency by the person who has control of the work.
(2) If any such work is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the person to repair and restore the work, or any part of it, or (if the person having control of the work so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) If, within a reasonable period being not less than 20 business days beginning with the date on which a notice in respect of any work is served under paragraph 9(2) on the person who has control of that work, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not thereafter made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in doing so from that person.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 9(2), the Agency shall not, except in a case of immediate foreseeable need, exercise the powers of paragraph 9(3) until the dispute has been finally determined.
10.—(1) If by reason of the construction of any authorised project work or the failure of any such authorised project work, the efficiency or effectiveness of any drainage work or the conservation value of the aquatic habitat is impaired, or that drainage work is otherwise damaged, so as to require remedial action, such impairment or damage shall be made good by the undertaker to the reasonable satisfaction of the Agency.
(2) If such impaired or damaged drainage work is not made good to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to restore it to its former standard of efficiency or where necessary to construct some other work in substitution for it.
(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of impaired or damaged drainage work is served under paragraph 10(2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not thereafter made reasonably expeditious progress towards its implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 10(2), the Agency shall not except in a case of immediate foreseeable need exercise the powers conferred by paragraph 10(3) until the dispute has been finally determined in accordance with paragraph 13.
(5) In any case where immediate action by the Agency is reasonably required in order to secure that the imminent flood risk or damage to the environment is avoided or reduced, the Agency may take such steps as are reasonable for the purpose and may recover from the undertaker the reasonable cost of so doing provided that the notice specifying those steps is served on the undertaker as soon as it is reasonably practicable after the Agency has taken or commence to take the steps specified in the notice.
11.—(1) Prior to the construction of any authorised project work, the undertaker shall submit the following plans to the Agency—
(a)pollution incident response plan;
(b)emergency preparedness plan;
(c)water management plan;
(d)ecology and landscape management plan,
such plans forming part of the CEMP and prepared pursuant to the CoCP, and the undertaker shall thereafter provide any revisions or updates of such plans to the Agency for approval.
(2) The Agency shall approve those parts of the plans listed in paragraph 11(1) as appropriate and relevant to the statutory remit of the Agency, and the relevant authorised project work shall not commence until the relevant parts of such plans have been approved by the Agency or otherwise determined pursuant to paragraph 13.
(3) Any approval of the Agency given under paragraph 11(1):
(a)shall not be unreasonably withheld;
(b)in the case of a refusal, accompanied by a statement of the grounds of a refusal; and
(c)shall be deemed to have been refused if it is neither given nor refused within 20 business days of receipt of any submission under paragraph 11(1).
(4) Any dispute in respect of any approval or refusal under paragraph 11 shall be subject to the dispute resolution procedure in paragraph 13.
12.—(1) The undertaker shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any authorised project work—
(2) If by reason of—
(a)the construction of any authorised project work, or
(b)the failure of any such authorised project work,
damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.
(3) If, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in paragraph 12(2), the Agency may take such steps as are reasonable for the purpose and may recover from the undertaker the reasonable cost of so doing provided that the notice specifying those steps is served on the undertaker as soon as is reasonably practicable after the Agency has taken, or commenced to take the steps specified in the notice.
13. Any dispute arising between the undertaker and the Agency under this Schedule shall be determined by arbitration in accordance with article 63 unless otherwise agreed in writing by the undertaker and the Agency.
14.—(1) The undertaker shall be responsible for and make good to the Agency all financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Agency by reason of—
(a)the construction or operation of the authorised project or the failure of any works comprised within it, or;
(b)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised project or dealing with any failure of the authorised project;
and the undertaker shall indemnify the Agency from and against all claims and demands arising out of or in connection with the authorised project or any such failure, act or omission.
(2) The fact that any act or thing may have been done—
(a)by the Agency on behalf of the undertaker; or
(b)by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Agency, or in a manner approved by the Agency, or under its supervision or the supervision of its duly authorised representative;
shall not (if it was done or required without negligence on the part of the Agency or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.
(3) In complying with the indemnity provisions pursuant to this paragraph the undertaker’s liability shall either be limited to a sum to be agreed between the parties or unlimited.
(4) The Agency shall give the undertaker reasonable notice of any such claim or demand as is referred to in paragraph 14(1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the undertaker.
15.—(1) All notices under this Part of the Schedule to be sent to the head office of the Agency applying at the time unless otherwise agreed in writing.
(2) The undertaker shall serve notice in writing of any transfer made pursuant to Article 9 upon the Agency together with a copy of the instrument effecting such transfer within 10 business days of any such transfer.
(3) The undertaker shall serve a copy of its application to discharge requirement PW4 upon the Agency within 10 business days of the submission of such application. In the event that any application for approval of detailed design of specified works pursuant to paragraph 5 of this Part of Schedule 16 is made before any application for discharge of requirement PW4 is made, then the undertaker shall supply with the application for approval details for each part of the authorised project which is submitted for approval of specified works, the details of the body responsible for carrying out the relevant works and the location and duration for undertaking those works.
1. The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing by the protected person and the undertaker.
2. In this Part of this Schedule—
“approval” in relation to specified works means approval of the engineer appointed by the protected person whose protected property is affected by those works such approval not to be unreasonably withheld or delayed;
“construction” shall include reconstruction, altering, replacing, relaying, removal, maintenance and repair of the specified works;
“CRL” means Crossrail Limited, a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 04212657;
“CRL Property” means any lands held or used by CRL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which CRL is responsible for when the construction of the specified works commence;
“DLRL” means Docklands Light Railway Limited, a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 02052677;
“DLRL Property” means any lands held or used by DLRL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which DLRL is responsible for when the construction of the specified works commence;
“engineer” means the engineer appointed by each of the protected persons;
“LUL” means London Underground Limited a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 01900907;
“LUL Property” means any lands held or used by LUL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which LUL is responsible for when the construction of the specified works commence;
“Non-River DCO Works” means the authorised development and associated development and any ancillary works to be constructed on any land located outside of the River Areas;
“plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of protected property and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;
“protected person” means LUL or DLRL or RfL or CRL;
“protected property” means in relation to each protected person any lands held or used by that protected person for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which that protected person is responsible when the relevant specified works are begun;
“River Areas” means the areas comprising the rivers known as the River Thames and Deptford Creek and such areas include the bed, banks, sub-soil, foreshore and river walls of the River Thames and Deptford Creek but do not include works to the surface of structures over the River Areas;
“River DCO Works” means that part of the authorised development consisting of any works of excavation, piling, sinking or boreholes, tunnelling or other works carried out within the River Areas;
“RfL” means Rail for London Limited a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 05965930; and
“RFL Property” means any lands held or used by RfL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which RfL is responsible for when the construction of the specified works commence;
“the specified works” means
so much of any Non-River DCO Works as may be situated within 15 metres (measured in any direction) of the CRL Property, DLRL Property, LUL Property or RfL Property or may in any way affect CRL Property, DLRL Property, LUL Property or RfL Property; and
so much of any River DCO Works as may be situated within, 50 metres (measured in any direction) of CRL Property, DLRL Property, LUL Property or RfL Property within the River Areas, or may in any way affect CRL Property, DLRL Property, LUL Property, or RfL Property.
3.—(1) The undertaker shall not under the powers conferred by or under this Order without the consent of the protected person, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over protected property.
(2) The undertaker shall not exercise the powers under article 22 above or the powers under section 11(3) of the 1965 Act, in respect of any protected property except with the consent of the protected person.
4.—(1) The undertaker shall, before commencing the specified works, furnish to the protected person such proper and sufficient plans of the specified works as may reasonably be required for the approval of the engineer and shall not commence the specified works until the plans have been approved in writing by the engineer or settled by arbitration.
(2) If, within a period of 56 days beginning with the date on which plans have been furnished to the protected person under sub-paragraph (1) above, the engineer has not notified their disapproval and the grounds of their disapproval, they shall be deemed to have approved the plans as submitted.
(3) If the undertaker, in the course of carrying out specified works on protected property (i) uses any materials that the engineer considers inferior or unfit for the purpose intended, (ii) executes any work which will have an adverse effect on the safe and efficient operation of the railway or (iii) makes any material deviation from materials approved by the engineer, then the protected person shall give notice to the undertaker that the protected person desires itself to construct that part of the specified works which in the opinion of the engineer will or may affect the stability of, or the safe operation of protected property, then, provided that the protected person has first given the undertaker the opportunity to remedy the specified works , if the undertaker desires such part of the specified works to be constructed, the protected person shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with approved plans.
(4) Upon signifying their approval of the plans the engineer may specify any protective works, whether temporary or permanent, which in their opinion should be carried out before the commencement of the specified works to ensure the stability of protected property, the continuation of the safe and effective operation of the protected person’s operational undertaking including any relocation of works, apparatus and equipment necessitated by the specified works and the comfort and safety of passengers or customers, 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 has notified the undertaker that the protective works have been completed.
5.—(1) The undertaker shall give to the engineer not less than 56 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 protected property.
(2) The specified works shall, when commenced, be carried out—
(a)with all reasonable dispatch in accordance with approved plans;
(b)under the supervision (if given), and to the reasonable satisfaction, of the engineer; and
(c)in such manner as to cause—
(i)as little damage as may be to protected property, and
(ii)as little interference as may be with the conduct of protected person’s operation and the use by passengers or customers of its property.
(3) If any damage to protected property or any such interference is caused by the carrying out of the specified works, the undertaker shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to the protected person all reasonable expenses to which the protected person may be put and compensation for any loss which the protected person may sustain by reason of any such damage or interference.
(4) Nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, cost, expense or loss to the extent that such damage, cost expense or loss is attributable to the act, neglect or default of a protected person or its servants or agents.
6. Without prejudice to the generality of paragraphs 4 and 5 above a protected person may, in approving the plans of or in supervising the carrying out of the specified works or of any protective works carried out by the undertaker by virtue of the provisions of paragraph 5(3) above, require that—
(a)nothing shall be done by or on behalf of the undertaker which unreasonably impedes the free, uninterrupted and safe flow of passengers or customers;
(b)dust sheets and other works and working methods are used so as to prevent so far as practicable any dust or dirt from the relevant works affecting such persons; and
(c)adequate signing of all alterations of routes for such persons and of any hazards or obstructions to the free movement of such persons is provided.
7. 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 those specified works or the method of construction thereof.
8. During the construction of any part of the specified works under this Part of this Schedule by a protected person under this Part of this Schedule, the protected person shall at all times afford reasonable facilities to the undertaker and its agents for access to those works, and shall supply the undertaker with such information as they may reasonably require with regard to such works or the method of construction thereof.
9.—(1) If any alterations or additions either permanent or temporary, to protected property are 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, then, provided the protected person has first given the undertaker the opportunity to carry out the protective works itself, such alterations and additions may be carried out by the protected person after giving the undertaker reasonable notice of its intention to carry out such alterations or additions and the undertaker shall pay the protected person the reasonable cost thereof as certified by the engineer, including in respect of permanent alterations and additions a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by the protected person in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If the cost of maintaining, working or renewing protected property is reduced in consequence of any such alterations or additions, a capitalised sum representing such saving shall be set off against any sum payable by the undertaker to the protected person under this paragraph.
10. The undertaker shall repay to any protected person all costs, charges and expenses reasonably incurred by the protected person—
(a)in constructing any part of the specified works on behalf of the undertaker or any protective works under the provisions of paragraph 3 above, including, in respect of any permanent protective works, a capitalised sum representing the costs which may be expected to be reasonably incurred by the protected person in maintaining and renewing such works;
(b)in respect of the employment of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting its protected property in order to prevent, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;
(c)resulting from any speed restrictions which in the opinion of the engineer are necessary by reason of the construction or failure of the specified works, any delays to services or from the substitution of services which may be reasonably necessary for the same reason, including loss of revenue;
(d)in respect of any additional temporary lighting of its protected property in the vicinity of the specified works, being lighting made reasonably necessary by reason of the construction or failure of the specified works; and
(e)in respect of the consideration of plans and the supervision by the engineer of the construction of the specified works.
11.—(1) In this paragraph—
“apparatus” means any lines, circuits, wires or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by a protected person for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications; and
“EMI” means electromagnetic interference with apparatus generated by construction of the authorised development where such interference is of a level which adversely affects the safe operation of apparatus.
(2) Subject to sub-paragraph (4), the undertaker shall in the design and construction of the authorised development take all measures necessary to prevent EMI and shall establish with the protected person (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(3) In order to facilitate the undertaker’s compliance with sub-paragraph (2)—
(a)the undertaker shall consult with the protected person as early as reasonably practicable to identify all apparatus which may be at risk of EMI, and thereafter shall continue to consult with the protected person (both before and after formal submission of plans under paragraph 3(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)the protected person shall make available to the undertaker all information in the possession of the protected person reasonably requested by the undertaker in respect of the apparatus identified pursuant to sub-paragraph(a); and
(c)the protected person shall allow the undertaker reasonable facilities for the inspection of apparatus identified pursuant to sub-paragraph(a).
(4) In any case where it is established that EMI can only reasonably be prevented by modifications to apparatus, the protected person shall not withhold its consent unreasonably to modifications of apparatus, but the means of prevention and the method of their execution shall be selected in the reasonable discretion of the protected person, and in relation to such modifications paragraph 3(1) shall have effect subject to the sub-paragraph.
(5) If at any time prior to the commencement of construction of the authorised development and notwithstanding any measures adopted pursuant to sub-paragraph (2), the construction of the authorised development causes EMI then the undertaker shall immediately upon receipt of notification by the protected person of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s equipment causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (4)) to the apparatus.
(6) In the event of EMI having occurred—
(a)the undertaker shall afford reasonable facilities to the protected person for access to the undertaker’s equipment in the investigation of such EMI;
(b)the protected person shall afford reasonable facilities to the undertaker for access to the apparatus in the investigation of such EMI; and
(c)the protected person shall make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of apparatus or such EMI.
(7) Where the protected person approves modifications to apparatus pursuant to sub-paragraphs (4) or (5)—
(a)the protected person shall allow the undertaker reasonable facilities for the inspection of the relevant part of the apparatus; and
(b)any modifications to apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the undertaker in accordance with paragraph 4.
(8) To the extent that it would not otherwise do so, the indemnity in paragraph 14(1) shall apply to the costs and expenses reasonably incurred or losses suffered by the protected person through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to apparatus) or in consequence of any EMI to which sub-paragraph (5) applies.
(9) For the purpose of paragraph 9 any modifications to apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
(10) In relation to any dispute arising under this paragraph the reference in article 63 (Arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.
12. If at any time after the completion of a specified work, not being a work vested in the protected person, the protected person gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of protected property, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect protected property.
13. Any additional expenses which a protected person may reasonably incur in altering, reconstructing or maintaining protected property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to the protected person.
14.—(1) The undertaker shall be responsible for and make good to the protected person, all costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to, or reasonably incurred by, the protected person—
(a)by reason of the construction of the specified works or the failure thereof, or
(b)by reason of any act or omission of the undertaker, of any person in its employ, or of its contractors or others whilst engaged upon the construction of the specified works,
and the undertaker shall indemnify the protected person from and against all such claims and demands arising out of or in connection with the construction of the specified works or any such failure, act or omission, and the fact that any act or thing may have been done in accordance with any requirement of the engineer or under their supervision, shall not (if it was not attributable to the act, neglect or default of the protected person, or of any person in their employ, or of their contractors or agents) excuse the undertaker from any liability under the provisions of this Part of this Schedule.
(2) The protected person 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 of the undertaker such consent not to be unreasonably withheld.
(3) The sums payable by the undertaker under sub-paragraph (1) shall include a sum equivalent to the relevant costs.
(4) Subject to the terms of any agreement between the protected person and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, the protected person shall promptly pay to each train operator the amount of any sums which the protected person receives under sub-paragraph (1) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay the protected person the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).
(6) In this paragraph—
“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) incurred by a train operator as a consequence of any restriction of the use of a protected persons railway network as a result of the construction, maintenance or failure of a specified work, or any such act or omission as mentioned in sub-paragraph (1); and
“train operator” means any person who is authorised to act as the operator of a train over the railway network of a protected person.
15. Any difference arising between the undertaker and a protected person under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 63 (arbitration).
1. The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing between LRSL and the undertaker.
2. In this Part of this Schedule—
“approval” in relation to specified works means approval of the engineer appointed by LRSL, such approval not to be unnecessarily withheld or delayed;
“construction” shall include reconstruction, altering, replacing, relaying, removal, maintenance and repair of the specified works;
“designated works” means Work No 17b authorised by this Order (construction of pier to relocate Blackfriars Millennium Pier);
“engineer” means the engineer appointed by LRSL;
“LRSL” means London River Services Limited, a company limited by shares and incorporated under the Companies Act 1985 whose registered number is 03485723;
“Non-River DCO Works” means the authorised development and associated development and any ancillary works to be constructed on any land located outside of the River Areas;
“plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of the piers and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;
“the piers” means Blackfriars Millennium Pier, Embankment Pier and Putney Pier and any works, apparatus and equipment connected therewith;
“River Areas” means the areas comprising the rivers known as the River Thames and Deptford Creek and such areas include the bed, banks, sub-soil, foreshore and river walls of the River Thames and Deptford Creek but do not include works to the surface of structures over the River Areas;
“River DCO Works” means that part of the authorised development consisting of any works of excavation, piling, sinking or boreholes, tunnelling or other works including those associated with the temporary relocation of the residential house boat carried out within the River Areas;
“the specified works” means
so much of any Non-River DCO Works as may be situated within 15 metres (measured in any direction) of, or may in any way affect, the designated access route to the piers; and
so much of any River DCO Works as may be situated within, 50 metres (measured in any direction) of, or may in any way affect the piers.
and includes the construction and maintenance of the designated works and the decommission and removal of Blackfriars and Millennium Pier.
3.—(1) The undertaker shall not under the powers conferred by this Order without the consent of the LRSL, acquire or enter upon, take or use (whether temporarily or permanently) or acquire any new rights over the piers.
(2) The undertaker shall not exercise the powers under article 22 above, or the powers under section 11(3) of the 1965 Act in respect of the piers except with the consent of the LRSL.
4.—(1) The undertaker shall, before commencing the specified works, furnish to LRSL such proper and sufficient plans of the specified works as may reasonably be required for the approval of the engineer and shall not commence the specified works until the plans have been approved in writing by the engineer or settled by arbitration.
(2) If, within a period of 56 days beginning with the date on which plans have been furnished to LRSL under sub-paragraph (1) above, the engineer has not notified their disapproval thereof and the grounds of their disapproval, they shall be deemed to have approved the plans as submitted.
(3) If the undertaker, in the course of carrying out specified works on protected property (i) uses any materials that the engineer considers inferior or unfit for the purpose intended, (ii) executes any work which will have an adverse effect on the safe and efficient operation of the railway or (iii) makes any material deviation from materials approved by the engineer, then LRSL shall give notice to the undertaker that LRSL desires itself to construct that part of the specified works which in the opinion of the engineer will or may affect the stability of, or the safe operation of protected property, then, provided that it has first agreed such works with the pier owner and that LRSL has first given the undertaker the opportunity to remedy the specified works, if the undertaker desires such part of the specified works to be constructed, LRSL shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with approved plans.
(4) Upon signifying their approval of the plans the engineer may specify any protective works, whether temporary or permanent, which in their opinion should be carried out before the commencement of the specified works to ensure the stability of the pier, the continuation of the safe and effective operation of the piers including any relocation of works, apparatus and equipment necessitated by the specified works and the comfort and safety of passengers or customers using the pier, 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 has notified the undertaker that the protective works have been completed.
5.—(1) The undertaker shall give to the engineer not less than 56 days’ notice of its intention to commence the construction of any of the specified works and also, except in an emergency (when they shall give such notice as may be reasonably practicable), of its intention to carry out any such 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 piers.
(2) The specified works shall, when commenced, be carried out with all reasonable dispatch in accordance with the plans approved or deemed to be approved or settled as aforesaid and under the supervision (if given), and to the reasonable satisfaction, of the engineer, and in such manner as to cause as little damage as may be to the piers and as little interference as may be with the conduct of LRSL’s operation and the use by passengers or customers of the piers and, if any damage to the piers or any such interference is caused by the carrying out of the specified works, the undertaker shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to LRSL all reasonable expenses to which it may be put and compensation for any loss which they may sustain by reason of any such damage or interference.
(3) Nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, cost, expense or loss to the extent that such damage, cost, expense or loss is attributable to the act, neglect or default of LRSL or its servants or agents.
6. Without prejudice to the generality of paragraphs 4 and 5 above LRSL may, in approving the plans of or in supervising the carrying out of the specified works or of any protective works carried out by the undertaker by virtue of the provisions of paragraph 4(3) above, impose reasonable conditions with a view to ensuring that—
(a)nothing shall be done by or on behalf of the undertaker which unreasonably impedes the free, uninterrupted and safe flow of vessels, passengers or customers to or from the piers;
(b)adequate signing of all alterations of routes for such persons and of any hazards or obstructions to the free movement of such persons is provided.
7. 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 those specified works or the method of construction thereof.
8. During the construction of any part of the specified works under this Part of this Schedule by LRSL under this Part of this Schedule, LRSL shall at all times afford reasonable facilities to the undertaker and its agents for access to those works, and shall supply the undertaker with such information as they may reasonably require with regard to such works or the method of construction thereof.
9.—(1) If any alterations or additions either permanent or temporary, to protected property are 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, then, provided LRSL has first given the undertaker the opportunity to carry out the protective works itself, such alterations and additions may be carried out by LRSL after giving the undertaker reasonable notice of its intention to carry out such alterations or additions and the undertaker shall pay LRSL the reasonable cost thereof as certified by the engineer, including in respect of permanent alterations and additions a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by LRSL in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If the cost of maintaining, working or renewing protected property is reduced in consequence of any such alterations or additions, a capitalised sum representing such saving shall be set off against any sum payable by the undertaker to LRSL under this paragraph.
10. The undertaker shall repay to LRSL all costs, charges and expenses reasonably incurred by LRSL—
(a)in constructing any part of the specified works on behalf of the undertaker or any protective works under the provisions of paragraph 5 above, including, in respect of any permanent protective works, a capitalised sum representing the costs which may be expected to be reasonably incurred by LRSL in maintaining and renewing such works;
(b)in respect of the employment of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting its piers in order to prevent, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;
(c)resulting from any speed restrictions or diversions of services which may, in the opinion of the engineer, be required to be imposed by reason of the construction or failure of the specified works, or delays to services or from the substitution of services (whether temporary or permanent) which may be reasonably necessary for the same reason and any loss of revenue which LRSL may incur due to the specified works;
(d)in respect of any additional temporary lighting of its piers in the vicinity of the specified works, being lighting made reasonably necessary by reason of the construction or failure of the specified works; and
(e)in respect of the consideration of plans and the supervision by the engineer of the construction of the specified works.
11. If at any time after the completion of a specified work, not being a work vested in LRSL, LRSL gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of LRSL undertaking, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect LRSL’s undertaking.
12. Any additional expenses which a LRSL may reasonably incur in altering, reconstructing or maintaining the piers under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to LRSL.
13.—(1) The undertaker shall be responsible for, and make good to LRSL, all costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to, or reasonably incurred by, LRSL—
(a)by reason of the construction of the specified works or the failure thereof, or
(b)by reason of any act or omission of the undertaker or any person in its employ, or of its contractors or others whilst engaged upon the construction of the specified works,
and the undertaker shall indemnify LRSL from and against all such 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 in accordance with any requirement of the engineer or under their supervision, shall not (if it was not attributable to the act, neglect or default of the LRSL, or of any person in their employ, or of their contractors or agents) excuse the undertaker from any liability under the provisions of this Part of this Schedule.
(2) LRSL 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 of the undertaker. Such consent not to be unreasonably withheld.
14. Any difference arising between the undertaker and LRSL under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be referred to and settled by arbitration under article 63 (arbitration).
1. The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing by the undertaker and TfL.
2. In this Part of this Schedule—
“approval” in relation to specified works means approval of the engineer appointed by TfL, such approval not to be unreasonably withheld or delayed;
“construction” shall include reconstruction, altering, replacing, relaying, removal, maintenance and repair of the specified works;
“designated works” means—
the construction of Work No. 1a beneath Great West Road at British Grove (A4);
the construction of Work No. 7 beneath Wandsworth Plain, Armoury Way and Wandsworth High Street (A3);
the construction of Work No. 10b beneath York Road (A3200);
the construction of Work No. 1b adjacent to Chelsea Embankment (A3212);
the construction of Work No. 1c beneath Kirtling St (A3205);
the construction of Work No. 1c, 15a, 15b and 15c (beneath Vauxhall Bridge (A202);
the construction of Work No. 1c beneath Lambeth and Westminster Bridges A3203 and A302;
the construction of Work No. 1c beneath Victoria Embankment (A3211);
the construction of Work No. 17b (low level sewer interception chamber at Blackfriars Bridge, works to Blackfriars bridgehead structure the North Western link from Blackfriars bridge down onto the A3211);
the construction of Work No. 1d beneath Limehouse Link (A1203), Commercial Road (A13), Burdett Road (A1205) & Blackwall Tunnel Northern Approach (A12); and
the construction of Work No. 20 (beneath Jamaica Road (A200);
Falconbrook Pumping Station (relocation of bus stops on York Road – part of Work no. 10c);
Kirtling Street (relocation of bus stops on Cringle Street – part of Work no. 13b);
Deptford Church Street (relocation of bus stops on Deptford Church Street – part of Work no. 22b)
“engineer” means the engineer appointed by TfL;
“LBSL” means London Bus Services Limited;
“plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of protected property and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;
“protected property” means any lands held or used by TfL for the purposes of its operational highway undertaking and any works, apparatus and equipment connected therewith for the maintenance or operation of which TfL is responsible when the relevant specified works are begun;
“the specified works” means so much of the designated works as may be situated within 50 metres (measured in any direction) of, or may in any way affect, protected property and includes the construction of any such work.
“TfL” means Transport for London and in paragraph 9 includes LBSL.
3.—(1) The undertaker shall not in the exercise of the powers conferred by or under this Order, without the consent of the TfL, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over protected property.
(2) The undertake shall not exercise the powers under article 22 above or the powers under section 11(3) of the 1965 Act, in respect of any protected property except with the consent of TfL.
4.—(1) The undertaker shall, before commencing the specified works, furnish to TfL such proper and sufficient plans of the specified works as may reasonably be required for the approval of the engineer and shall not commence the specified works until the plans have been approved in writing by the engineer or settled by arbitration.
(2) If, within a period of 56 days beginning with the date on which plans have been furnished to TfL under sub-paragraph (1) above, the engineer has not notified their disapproval and the grounds of their disapproval, they shall be deemed to have approved the plans as submitted.
(3) If the undertaker, in the course of carrying out specified works on protected property (i) uses any materials that the engineer considers inferior or unfit for the purpose intended, (ii) executes any work which will have an adverse effect on the safe and efficient operation of the roads or (iii) makes any material deviation from materials approved by the engineer, then TfL shall give notice to the undertaker that TfL desires itself to construct that part of the specified works which in the opinion of the engineer will or may affect the stability of, or the safe operation of protected property, then, provided that TfL has first given the undertaker the opportunity to remedy the specified works, if the undertaker desires such part of the specified works to be constructed, TfL shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with approved plans.
(4) Upon signifying their approval of the plans the engineer may specify any protective works, whether temporary or permanent, which in their opinion should be carried out before the commencement of the specified works to ensure the stability of protected property, the continuation of the safe and effective operation of TfL’s operational undertaking including any relocation of works, apparatus and equipment necessitated by the specified works and the comfort and safety of users of the roads comprised within protected 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 has notified the undertaker that the protective works have been completed.
5.—(1) The undertaker shall give to the engineer not less than 56 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 protected property.
(2) The specified works shall, when commenced, be carried out—
(a)with all reasonable dispatch in accordance with approved plans;
(b)under the supervision (if given), and to the reasonable satisfaction, of the engineer; and
(c)in such manner as to cause—
(i)as little damage as may be to protected property, and
(ii)as little interference as may be with the conduct of TfL’s undertaking and the use by vehicles and pedestrians of the highways comprised within protected property.
(3) If any damage to protected property or any such interference is caused by the carrying out of the specified works, the undertaker shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to TfL all reasonable expenses to which TfL may be put and compensation for any loss which TfL may sustain by reason of any such damage or interference.
(4) Nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, cost, expense or loss to the extent that such damage, cost expense or loss is attributable to the act, neglect or default of TfL or its servants or agents.
6. Without prejudice to the generality of paragraphs 4 and 5 above TfL may, in approving the plans of or in supervising the carrying out of the specified works or of any protective works carried out by the undertaker by virtue of the provisions of paragraph 5(3) above, require that—
(a)nothing shall be done by or on behalf of the undertaker which unreasonably impedes the free, uninterrupted and safe flow of vehicles and pedestrians;
(b)dust sheets and other works and working methods are used so as to prevent so far as practicable any dust or dirt from the relevant works affecting such persons; and
(c)adequate signing of all alterations of routes for such persons and of any hazards or obstructions to the free movement of such persons is provided.
7. 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 those specified works or the method of construction thereof.
8. During the construction of any part of the specified works under this Part of this Schedule by TfL under this Part of this Schedule, TfL shall at all times afford reasonable facilities to the undertaker and its agents for access to those works, and shall supply the undertaker with such information as they may reasonably require with regard to such works or the method of construction thereof.
9.—(1) If any alterations or additions either permanent or temporary, to protected property are 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, then, provided TfL has first given the undertaker the opportunity to carry out the protective works itself, such alterations and additions may be carried out by TfL after giving the undertaker reasonable notice of its intention to carry out such alterations or additions and the undertaker shall pay TfL the reasonable cost thereof as certified by the engineer, including in respect of permanent alterations and additions a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by TfL in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If the cost of maintaining, working or renewing protected property is reduced in consequence of any such alterations or additions, a capitalised sum representing such saving shall be set off against any sum payable by the undertaker to TfL under this paragraph.
10. The undertaker shall repay to TfL all costs, charges and expenses reasonably incurred by TfL—
(a)in constructing any part of the specified works on behalf of the undertaker or any protective works under the provisions of paragraph 4 above, including, in respect of any permanent protective works, a capitalised sum representing the costs which may be expected to be reasonably incurred by TfL in maintaining and renewing such works;
(b)in respect of the employment of any inspectors, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, watching and lighting its protected property in order to prevent, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;
(c)resulting from any speed restrictions , diversions or delays to bus services which may, in the opinion of the engineer, be required to be imposed by reason of the construction or failure of the specified works, or from the substitution of bus service (whether temporary or permanent) which may be reasonably necessary for the same reason and any loss of revenue which may be incurred by TfL due to the specified works;
(d)in respect of any additional temporary lighting of its protected property in the vicinity of the specified works, being lighting made reasonably necessary by reason of the construction or failure of the specified works; and
(e)in respect of the consideration of plans and the supervision by the engineer of the construction of the specified works.
11. If at any time after the completion of a specified work, not being a work vested in TfL, TfL gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of protected property, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect protected property.
12. Any additional expenses which TfL may reasonably incur in altering, reconstructing or maintaining protected property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to TfL.
13.—(1) The undertaker shall be responsible for and make good to TfL, all costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to, or reasonably incurred by, TfL—
(a)by reason of the construction of the specified works or the failure thereof, or
(b)by reason of any act or omission of the undertaker, of any person in its employ, or of its contractors or others whilst engaged upon the construction of the specified works,
and the undertaker shall indemnify TfL from and against all such claims and demands arising out of or in connection with the construction of the specified works or any such failure, act or omission, and the fact that any act or thing may have been done in accordance with any requirement of the engineer or under their supervision, shall not (if it was not attributable to the act, neglect or default of TfL, or of any person in their employ, or of their contractors or agents) excuse the undertaker from any liability under the provisions of this Part of this Schedule.
(2) TfL 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 of the undertaker such consent not to be unreasonably withheld.
14. Any difference arising between the undertaker and TfL under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 63 (arbitration). referred to and settled by arbitration under article 63 (arbitration)
1. The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing by the undertaker and TfL.
2.—(1) In this Part of this Schedule —
“designated works” has the same meaning as in Part 5 (for the protection of major highways structures) of this Schedule;
“highway” means any highway of which TfL is the highway authority but does not include any highway affected by the designated works;
“plans” includes detailed drawings and or plans showing in detail the layout and design construction of all road and drainage works (together with longitudinal cross sections) and landscaping including all necessary traffic management measures which may affect any relevant part of the highway and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;
“property of TfL” means any apparatus of TfL affixed to or placed under any highway; and
“TfL” means Transport for London.
(2) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of TfL, that approval or consent shall be in writing and subject to such reasonable terms and conditions as TfL may require, but shall not be unreasonably withheld.
(3) In exercising the powers conferred by this Order in relation to any highway the undertaker shall have regard to the potential disruption of traffic which may be caused and shall seek to minimise such disruption so far as is reasonably practicable
(4) If within 30 business days after such plans mentioned in paragraph (5) have been submitted to TfL, TfL has not approved or disapproved them, TfL shall be deemed to have approved the plans as submitted.
(5) In the construction of any part of the said works under a highway no part of it shall, except with the consent of TfL, be so constructed as to interfere with the provision of proper means of drainage of the surface of the highway or be nearer than two metres to the surface of the highway.
(6) The undertaker shall not under the powers conferred by or under this Order without the consent of TfL, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over any part of any highway, including subsoil beneath the surface of any highway.
(7) The provisions of this paragraph have effect in relation to carrying any part of the works authorised by this Order over a highway or carrying a highway over any part of those works;
(8) Before commencing the construction of, or the carrying out of any work in connection with any bridge which involves interference with a highway, the undertaker shall submit to TfL for its approval plans, drawings and particulars (in this paragraph referred to as “plans”) relating thereto and the works shall not be carried out except in accordance with the plans submitted to, and approved by, TfL.
(9) If within 56 days after the plans have been submitted TfL has not approved or disapproved them, it shall be deemed to have approved the plans as submitted.
(10) The undertaker shall secure that so much of the works authorised by this Order as is constructed under any highway shall be so designed, constructed and (for the period of the works) maintained as to carry the appropriate loading recommended for highway bridges by the Secretary of State at the time of construction of the works, and the undertaker shall indemnify TfL against, and make good to TfL, the expenses which TfL may reasonably incur in the repair of any highway, or any tunnels, sewers, drains or apparatus therein, by reason of non-compliance with the provisions of this paragraph.
(11) Any officer of TfL duly appointed for the purpose may at all reasonable times, on giving to the undertaker such notice as may in the circumstances be reasonable, enter upon and inspect any part of the works authorised by this Order which—
(a)is in, over or under any highway, or
(b)which may affect any highway or any property of TfL,
(12) during the carrying out of the work, and the undertaker shall give to such officer all reasonable facilities for such inspection and, if he shall be of the opinion that the construction of the work is attended with danger to any highway or to any property of TfL on or under any highway, the undertaker shall adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury to the highway
(13) The undertaker shall not alter, disturb or in any way interfere with any property of TfL on or under any highway, or the access thereto, without the consent of TfL, and any alteration, diversion, replacement or reconstruction of any such property which may be necessary shall be made by the undertaker or (if TfL fails to carry out such alteration, diversion, replacement or reconstruction works) by TfL to the reasonable satisfaction of TfL, and, if TfL carries out such works, the expense reasonably incurred by TfL in so doing shall be repaid to TfL by the undertaker.
(14) If within 56 days after a request for consent has been submitted TfL has not given or refused such consent, it shall be deemed to have consented to the request as submitted
(15) The undertaker shall not remove any soil or material from any highway except so much as must be excavated in the carrying out of the works authorised by this Order.
(16) If TfL, after giving to the undertaker not less than 56 days’ notice (or, in case of emergency, such notice as is reasonably practicable) of its intention to do so, incurs any additional expense in the signposting of traffic diversions, in the diversion of footpaths, in the taking of other measures in relation thereto, or in the repair of any highway by reason of the diversion thereto of traffic from a road of a higher standard, in consequence of the construction of the works authorised by this Order, the undertaker shall repay to TfL the amount of any such expense reasonably so incurred.
(17) An amount which apart from this sub-paragraph would be payable to TfL by virtue of this paragraph in respect of the repair of any highway shall, if the highway fell or would have fallen due for repair as part of the maintenance programme of TfL at any time within ten years of the repair being carried out by the undertaker, so as to confer on TfL financial benefit (whether by securing the completion of overdue maintenance work for which TfL is liable or by deferment of the time for such work in the ordinary course), be reduced by the amount which represents that benefit.
(18) The undertaker shall not, except with the consent of TfL, deposit any soil or materials, or stand any plant, on or over any highway so as to obstruct or render less safe the use of the highway by any person, or, except with the like consent, deposit any soil or materials on any highway outside a hoarding, but if within 56 days after request for it any such consent is neither given nor refused it shall be deemed to have been given.
(19) The expense reasonably incurred by TfL in removing any soil or materials deposited on any highway in contravention of this paragraph shall be repaid to TfL by the undertaker
(20) The undertaker shall not, except with the consent of TfL, erect or retain on or over a highway to which the public continues to have access any scaffolding or other structure which obstructs the highway
(21) The undertaker shall, if reasonably so required by TfL, provide and maintain to the reasonable satisfaction of TfL, during such time as the undertaker may occupy any part of a highway for the purpose of the construction of any part of the works authorised by this Order, temporary bridges and temporary ramps for vehicular or pedestrian traffic over that part of the works or in such other position as may be necessary to prevent undue interference with the flow of traffic in the highway as a result of the carrying out of the relevant part of the works.
(22) Where any part of any highway has been broken up or disturbed by the undertaker and not permanently stopped up or diverted, the undertaker shall make good the subsoil, foundations and surface of that part of the highway to the reasonable satisfaction of TfL, and shall maintain the same to the reasonable satisfaction of TfL for such time as may reasonably be required for the permanent reinstatement of the highway
(23) The reinstatement of that part of the highway shall be carried out by the undertaker to the reasonable satisfaction of TfL in accordance with such requirements as to specification of material and standards of workmanship as may be prescribed for equivalent reinstatement work by regulations made under section 71 of the New Roads and Street Works Act 1991 (c. 22).
(24) If any damage to any highway or any property of TfL on or under any highway is caused by, or results from, the construction of any work authorised by this Order or any order or omission of the undertaker, its contractors, agents or employees whilst engaged upon such work, the undertaker may, in the case of damage to a highway, make good such damage to the reasonable satisfaction of TfL and, where the undertaker does not make good, or in the case of damage to property of TfL, the undertaker shall be liable to TfL for the remediation costs of any such damage.
(25) The fact that any act or thing may have been done in accordance with plans approved by TfL shall not of itself (if it was not attributable to the act, neglect or default of TfL or of any person in its employ or its contractors or agents) exonerate the undertaker from any liability, or affect any claim for damages, under this Part or otherwise.
(26) Any difference arising between the undertaker and TfL under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 63 (arbitration).
1. The following provisions of this Part of this Schedule shall have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 14, any other person on whom rights or obligations are conferred by that paragraph.
2. In this Schedule—
“asset protection agreement” means an agreement to regulate the construction and maintenance of the specified works, prepared in a form prescribed from time to time by Network Rail;
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;
“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of powers under section 8 of the Railways Act l993;
“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006(1) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;
“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;
“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993(2)) or station lease;
“railway property” means any railway belonging to Network Rail Infrastructure Limited and—
any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and
any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment; and
“specified work” means so much of any of the authorised project as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.
3.—(1) Where under this Part Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.
(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail shall—
(a)co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and
(b)use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised project pursuant to this Order.
4.—(1) The undertaker shall not exercise the powers conferred by article 20 (protective works to buildings and structures), 21 (Remedial work to buildings and structures) and 22 (authority to survey and investigate the land) or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
(2) The undertaker shall not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.
(3) The undertaker shall not exercise the powers conferred by article 42 (statutory undertakers) or sections 271 or 274 of the 1990 Act, as applied by article 42 to this Order, in relation to railway property.
(4) The undertaker shall not under the powers of this Order enter upon, acquire or use, extinguish or acquire new rights over any railway property except with the consent of Network Rail.
(5) The powers under paragraphs (1) to (3) of article 57 (Amendment of local legislation) to this Order shall not apply in respect of any—
(a)local enactments specified in Part 2 of Schedule 19 to this Order;
(b)any bylaw or other provisions made under any of those specified enactments; or
(c)any other provision of local application,
which make any provision applying to railway property (including, but not limited to, provisions applying to the construction, maintenance, operation, alteration, replacement, improvement or protection of railway property) or any functions, obligations or rights exercisable by Network Rail.
(6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.
(7) Without prejudice to paragraph (5) the undertaker shall enter into an asset protection agreement prior to the commencement of the construction of any part of the authorised project.
5.—(1) The undertaker shall before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work shall not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.
(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of their disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate their approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated their approval or disapproval, he shall be deemed to have approved the plans as submitted.
(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.
(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in their opinion should he carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works shall be carried out at the expense of the undertaker in either case with all reasonable dispatch and the undertaker shall not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.
6.—(1) Any specified work and any protective works to he constructed by virtue of paragraph 5(4) shall, when commenced, be constructed—
(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;
(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little damage as is possible to railway property; and
(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.
(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker shall, notwithstanding any such approval, make good such damage and shall pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.
(3) Nothing in this Part shall impose any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.
7. The undertaker shall—
(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as he may reasonably require with regard to a specified work or the method of constructing it.
8. Network Rail shall at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part during their construction and shall supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.
9.—(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), the undertaker shall pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail shall assume construction of that part of the specified work and the undertaker shall, notwithstanding any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.
(3) The engineer shall, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.
(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by the undertaker to Network Rail under this paragraph.
10. The undertaker shall repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—
(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;
(b)in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by him of the construction of a specified work and otherwise in connection with the implementation of the provisions of this Part of this Schedule;
(c)in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it shall he reasonably necessary to appoint for inspecting, signaling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;
(d)in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and
(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.
11. If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.
12. The undertaker shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it shall have first consulted Network Rail and it shall comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
13. Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.
14.—(1) The undertaker shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part which may be occasioned to or reasonably incurred by Network Rail—
(a)by reason of the construction or maintenance of a specified work or the failure thereof, or
(b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work,
and the undertaker shall indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission; and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under their supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.
(2) Network Rail shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the undertaker.
(3) The sums payable by the undertaker under sub-paragraph (1) shall include a sum equivalent to the relevant costs.
(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail shall promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub‑paragraph (4).
(6) In this paragraph—
“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in subparagraph (1); and
“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.
15. Network Rail shall, on receipt of a request from the undertaker, from time to time provide the undertaker with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to he made pursuant to this Part (including any claim relating to those relevant costs).
16. In the assessment of any sums payable to Network Rail under this Part there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part or increasing the sums so payable.
17. The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—
(a)any railway property shown on the works and land plans and described in the book of reference;
(b)any lands, works or other property held in connection with any such railway property; and
(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.
18. Nothing in this Order, or in any enactment incorporated with or applied by this Order, shall prejudice or affect the operation of Part I of the Railways Act 1993.
19. The undertaker shall give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 61 (certification of plans etc) of this Order and any such notice shall be given no later than 28 days before any such application is made and shall describe or give (as appropriate)—
(a)the nature of the application to be made;
(b)the extent of the geographical area to which the application relates; and
(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.
20. The undertaker shall no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 61 (certification of plans etc) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.
21. Notwithstanding article 54 (Discharge of requirements, etc) any difference or dispute arising between the undertaker and Network Rail under this Part of this Schedule shall be referred to and settled by arbitration under article 63 (arbitration).
1. For the protection of any operator, the following provisions, unless otherwise agreed in writing between the undertaker and the operator, have effect.
2. In this part of this Schedule—
“the 2003 Act” means the Communications Act 2003;
“conduit system” has the same meaning as in the electronic communications code (under paragraph 2(1) of Schedule 3 to the 2003 Act) and references to providing a conduit system shall be construed in accordance with paragraph 1(3A) of that code;
“electronic communications apparatus” has the same meaning as in the electronic communications code also hereinafter referred to as apparatus;
“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 or paragraph 17 of Schedule 18 of the 2003 Act; and
an electronic communications network which the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 or paragraph 17 of Schedule 18 of the 2003 Act; and
“operator” means the operator of an electronic communications code network.
3. The exercise of the powers pursuant to this order are subject to paragraph 23 of Schedule 2 to the Telecommunications Act 1984 as if the undertaker were a “relevant undertaker” for the purposes of that paragraph.
4. 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 electronic communications apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
5.—(1) The temporary stopping up or diversion of any highway under article 15 (temporary stopping up) shall not affect any right of the operator under paragraph 9 of the electronic communications code to maintain any apparatus which, at the time of the stopping up or diversion, is in that highway.
(2) The undertaker shall give not less than 28 days’ notice in writing of its intention to temporarily stop up any highway to any operator of an electronic communications code network whose apparatus is under, over, in, on, along or across the highway and shall include in such notice details of the proposed duration of the temporary stopping up and the reason for it being required.
(3) Where a notice under sub-paragraph (2) has been given, the operator, if it reasonably considers that it is necessary for the safe and efficient operation and maintenance of the apparatus, may, and, if reasonably requested so to do by the undertaker in the notice, shall, as soon as reasonably practicable after the service of the notice—
(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the operator may reasonably determine and have power to place it, or
(b)provide other apparatus in substitution for the existing apparatus and place it in such other position as aforesaid.
(4) Subject to the following provisions of this paragraph the undertaker shall pay to any operator of an electronic communications code network an amount equal to the cost reasonably incurred by the operator in or in connection with—
(a)the execution of protection or relocation works required in consequence of the temporary or permanent stopping up of the highway, and
(b)the doing of any other work or thing rendered necessary by the execution of protection and or relocation works.
(5) If in the course of the execution of relocation works under sub-paragraph (3)—
(a)apparatus of better type, greater capacity or greater dimensions is placed in substitution for existing apparatus of worse type, smaller capacity or smaller dimensions, except where this has been solely due to using the nearest currently available type, capacity or dimension, or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus save where the depth as to placing is at the request of the undertaker and or to accommodate the authorised project) is placed at a depth greater than the depth at which existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined to be necessary in consequence of the construction of the authorised project in order to ensure the continued efficient operation of the electronic communications code network of the operator then, if it involves cost in the execution of the relocation works 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 (save as aforesaid), as the case may be, the amount which apart from this paragraph would be payable to the operator by virtue of sub-paragraph (4) shall be reduced by the amount of that excess.
(6) For the purposes of sub-paragraph (5)—
(a)the installation of replacement apparatus in accordance with the standard construction specification in use by the operator at the time of works, the physical conditions and the engineering requirements that the apparatus will be subject to in its relocated position and the extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended provides more than an equivalent service except where such service is solely due to having used equipment of the nearest alternative type, capacity or dimension which may be available at the time it was placed, 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 (in either case of such type, capacity and dimensions as shall reasonably be appropriate) shall be treated as if it also had been agreed or had been so determined.
(7) The amount which apart from this sub-paragraph would be payable to an operator in respect of works by virtue of sub-paragraph (4) (and having regard, where relevant, to sub-paragraph (5)) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7½ years earlier so as to confer on the operator 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.
6.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the installation of any such works authorised by this Schedule or in consequence of the installation, use, maintenance or failure of any of the authorised development by or on behalf of the promoter or in consequence of any act or default of the promoter (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the promoter under 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 those works) or property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, or the undertaker becomes liable to pay any amount to any third party, the promoter shall—
(a)bear and pay on demand the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and
(b)indemnify that undertaker for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the undertaker, by reason or in consequence of any such damage or interruption or the undertaker becoming liable to any third party as aforesaid
(2) The fact that any act or thing may have been done by an undertaker on behalf of the promoter or in accordance with a plan approved by an undertaker or in accordance with any requirement of an undertaker or under its supervision shall not (subject to sub-paragraph (3), excuse the promoter from liability under the provisions of this sub-paragraph (1)).
(3) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any damage or interruption to the extent that it is attributable to the neglect or default of an undertaker, its officers, servants, contractors or agents.
(4) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the promoter and considering their representations.
7. Any difference or dispute arising between the undertaker and an operator under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and that operator, be referred to and settled by arbitration under article 63 (arbitration).
1. The provisions of this part shall have effect for the protection of the COL, save as may otherwise be agreed in writing at any time between the COL and the undertaker.
2. In this Part of this Schedule-
“COL” means the Mayor and Commonalty and Citizens of the City of London, acting in its capacity as Trustees of the Bridge House Estates;
“bridges” means Blackfriars Road Bridge, the Millennium Bridge, Southwark Bridge, London Bridge and Tower Bridge and “bridge” shall mean any of them;
“protective works” means any work indicated in a settled submission (whether permanent or temporary) to be undertaken for the purposes of-
monitoring the effects on a bridge of the specified works, or
reducing the risk of damage being caused to a bridge by the specified works;
“remedial works” means any work undertaken by or on behalf of the undertaker pursuant to paragraph 4;
“settled submissions” are such of the submissions made by the undertaker in accordance with paragraph 3(2) to which-
the COL has confirmed that it has no objections in accordance with paragraph 3(3)(a),
the COL has been deemed to have confirmed that it has no objections in accordance with paragraph 3(4), or
all objections by the COL have been withdrawn or settled by arbitration under article 63 (arbitration) following referral in accordance with paragraph 7;
“specified works” means any part of the authorised development as may be situated at-
Blackfriars Bridge Foreshore and associated works within the limit of Work No. 17a and Work No. 17b, or
within the river Thames between Temple Pier on Victoria Embankment and the point 75 metres downstream of Tower Bridge
and includes the construction of any such part of the authorised development.
3.—(1) The provisions of this paragraph shall (unless otherwise agreed in writing by the COL and the undertaker) apply separately to protective works in respect of each bridge and the undertaker will not carry out protective works to the bridges until the procedures in sub-paragraphs (2) to (6) have been complied with.
(2) The undertaker shall submit in relation to each bridge the following submissions to the COL for review and confirm whether the COL has any objections in accordance with the following provisions of this Part—
(a)an updated technical assessment report;
(b)an emergency preparedness plan;
(c)a risk assessment and method statement for the pre-construction and construction stages of the protective works;
(d)bridge monitoring proposals; and
(e)details of proposed mitigation measures.
The documentation forming each submission may be provided by the undertaker to the COL on a phased basis and the procedures in sub-paragraphs (3) to (6) shall apply (mutatis mutandis) separately to each part of a submission.
(3) Within 28 days (or within such longer period as the undertaker and the COL may agree in writing) following receipt of a submission, the COL shall respond to the undertaker either—
(a)confirming that the COL has no objection to the submission; or
(b)specifying (with reasons) the COL’s reasonable objections to the submission and suggesting any changes which the COL considers are needed in order to remove the objections, in which event the undertaker shall (where practicable) revise and re-submit the submission and the provisions of this sub-paragraph (3) shall apply to the revised submission (save that the period for the COL to respond shall be reduced to 14 days); or
(c)specifying the further information which the COL requires in order to assess the submission.
(4) If the COL fails to respond to the submissions or any of them within the period specified in, or otherwise agreed pursuant to, sub-paragraph (3), the COL shall be deemed to have confirmed that it has no objection to the submission.
(5) The undertaker shall not commence construction of the specified works until the procedures set out in the preceding sub-paragraphs have been concluded and all protective works have been completed in accordance with the settled submissions.
(6) If the undertaker wishes to deviate in any material respect from any requirement set out in a Settled Submission, the undertaker shall submit revised details to the COL for review and the provisions of paragraphs 3(3) to 3(5) (mutatis mutandis) shall apply, provided that where changes are needed in the event of an emergency the undertaker and the COL may agree in writing such modifications to the procedures and timescales set out in those paragraphs as may be necessary or expedient to allow steps to be taken to mitigate the emergency or its impact.
(7) As soon as is reasonably practicable following completion of the construction of the specified works the undertaker shall in a good and workmanlike manner remove from the bridges all monitoring and other equipment and temporary works installed in accordance with settled submissions and shall reinstate the bridges as nearly as possible to their condition prior to the carrying out of the protective works (leaving out of account any permanent works carried out in accordance with the settled submission, any monitoring equipment which the undertaker and COL have agreed should remain in place for a period after the completion of construction to allow ongoing monitoring of the bridges and reasonable wear and tear).
(8) The undertaker shall not carry out any protective works on the bridges other than in accordance with a settled submission, and shall not carry out on the bridges—
(a)any work under article 20 or
(b)any work under the authority conferred by article 3 comprising associated development falling within paragraph (p) or (q) of Part 1 of Schedule 1.
4.—(1) The provisions of this paragraph shall (unless otherwise agreed by the COL and the undertaker in writing) apply separately to remedial works in respect of each bridge.
(2) If any damage to a bridge shall be caused by the carrying out of, or in consequence of, the construction of the specified works or any protective works carried out in accordance with paragraph 3, the undertaker shall, if the COL requires, make good such damage to the reasonable satisfaction of the COL.
(3) The undertaker shall not carry out on the bridges any work under article.
(4) If at any time after the completion of the construction of the specified works, the COL gives notice to the undertaker informing it that the state of maintenance of any part of the specified works appears to be such as adversely affects the stability or operation of a bridge, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect the bridge.
5.—(1) The COL shall be entitled (on reasonable notice and subject to complying with any reasonable site safety and induction requirements imposed by the undertaker or its contractors) to enter the site of any works carried out in accordance with the foregoing paragraphs in order to inspect and monitor the conduct of such works; and may make representations to the undertaker as to any concerns about such works which the COL may have in the course of such inspections and the undertaker shall take due account of any such representations.
(2) The COL may further request the undertaker to provide additional details of any works carried out in accordance with the foregoing paragraphs and the undertaker shall use all reasonable endeavours to comply with any such request as soon as possible.
6.—(1) Subject to the following provisions of this paragraph, the undertaker shall-
(a)reimburse to the COL all costs and expenses reasonably and properly incurred by it (the amounts of which are to be agreed between the COL and the undertaker in advance of expenditure) in—
(i)responding to any submission submitted to it in accordance with paragraph 3(2) or 3(6),
(ii)conducting any inspection or monitoring in accordance with paragraph 5(1), or
(iii)remedying any damage to a bridge caused by the carrying out of, or in consequence of the specified works or any works carried out in accordance with the foregoing paragraphs;
(iv)altering, reconstructing or maintaining the bridges under any powers existing at the time of the making of this Order, where necessitated by the specified works, provided that 28 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker;
(b)be responsible for, and make good to the COL, all reasonable costs, charges, damages and expenses not otherwise provided for in this Part which may be occasioned to, or reasonably and properly incurred by, the COL by reason of damage to a bridge or interference or obstruction to the use or operation of a bridge caused by or in consequence of-
(i)the construction of the specified works or the failure thereof, or
(ii)any act or omission of the undertaker or any person in its employ, or of its contractors or others whilst engaged upon the construction of the specified works; and
(c)indemnify the COL from and against all such claims and demands arising out of, or in connection with, the construction of the specified works or any such failure, act or omission as referred to in sub-paragraph (1)(b).
(2) The fact that any act or thing may have been done in accordance with the settled submissions, shall not (if it was not attributable to the act, neglect or default of the COL, or of any person in their employ, or of their contractors or agents) excuse the undertaker from any liability under the provisions of this Part.
(3) Nothing in this Part shall impose any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of the COL or its servants, contractors or agents or any liability on the COL with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.
(4) The undertaker’s liability to indemnify the COL pursuant to sub-paragraph (1)(c) may be limited to a sum to be agreed between the COL and the undertaker.
(5) In no circumstances shall the undertaker be liable to the COL under or in connection with this Part for indirect or consequential loss (including loss of profit) howsoever arising.
(6) The COL shall at all times take all reasonable steps to prevent and mitigate any cost, loss, claim or liability (whether indemnified or not) which it suffers as a result of the undertaker’s negligence or breach of this Part.
(7) The COL shall give to the undertaker reasonable notice of any claim or demand to which sub-paragraph (1)(c) applies and shall not compromise or settle any such claim or demand without the prior consent of the undertaker, such consent not to be unreasonably withheld or delayed.
7. Any difference or dispute arising between the undertaker and the COL under this Part shall, unless otherwise agreed in writing between the undertaker and the COL, be referred to and settled by arbitration under article 63 (arbitration).