SCHEDULE 12Protective provisions
PART 1Protection of electricity, gas, water and sewerage undertakers
1.
The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the utility undertaker in question.
2.
In this Part—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus”—
(a)
(b)
in the case of a utility undertaker within paragraph (b) of the definition of that term, means any mains, pipes or other apparatus belonging to or maintained by the utility undertaker for the purposes of gas supply;
(c)
in the case of a utility undertaker within paragraph (c) of the definition of that term, means mains, pipes or other apparatus belonging to or maintained by the utility undertaker for the purposes of water supply; and
(d)
in the case of a utility undertaker within paragraph (d) of the definition of that term—
- (i)
means—
- (aa)
any drain or works vested in the utility undertaker under the Water Industry Act 1991; and
- (bb)any sewer that is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act51 or an agreement to adopt made under section 104 of that Act; and
- (aa)
- (ii)
includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works;
and in each case includes any structure in which apparatus is or is to be lodged or that gives or will give access to apparatus;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or on land;
“utility undertaker” means—
(a)
any licence holder within the meaning of Part 1 of the Electricity Act 1989;
(b)
(c)
(d)
a sewerage undertaker,
for the area of the onshore works, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
3.
This Part does not apply to—
(a)
apparatus in respect of which relations between the undertaker and the utility undertaker are regulated by Part 3 of the 1991 Act; and
(b)
the offshore works.
4.
Despite any provision in this Order or anything shown on the land plan, the undertaker must not acquire any apparatus otherwise than by agreement.
5.
(1)
If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question.
(2)
If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the utility undertaker in question written notice of that requirement, together with a plan and section of the work proposed and of the proposed position of the alternative apparatus to be provided or constructed; and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3)
If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4)
Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 44 (arbitration).
(5)
The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 44, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part.
(6)
Despite sub-paragraph (5), if the undertaker gives notice in writing to the utility 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 undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction, of the utility undertaker.
(7)
Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench), within 300 millimetres of the apparatus.
6.
(1)
Where, in accordance with this Part, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted on such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 44 (arbitration).
(2)
In settling those terms and conditions in respect of alternative apparatus to be constructed in or along the authorised project, the arbitrator must—
(a)
give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised project and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; 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 or along the authorised project for which the alternative apparatus is to be substituted.
(3)
If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to the utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
7.
(1)
Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under that sub-paragraph, the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.
(2)
Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it; and the utility undertaker is entitled to watch and inspect the execution of the works.
(3)
Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the day on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4)
If a utility undertaker, in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2).
(5)
Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6)
The undertaker is not required to comply with sub-paragraph (1) in a case of emergency, but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
8.
(1)
Subject to the provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by the utility undertaker in, or in connection with,—
(a)
the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under this Part (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or exercise of statutory powers for such apparatus);
(b)
the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus, in consequence of the exercise by the undertaker of any power under this Order;
(c)
the survey of any land, apparatus or works, the inspection, superintendence and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the exercise by the undertaker of any power under this Order; and
(d)
any other work or thing rendered reasonably necessary in consequence of the exercise by the undertaker of any such power,
within a reasonable time of being notified by the utility undertaker that it has incurred such expenses.
(2)
There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under this Part, that value being calculated after removal.
(3)
If in accordance with this Part—
(a)
apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)
apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 44 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4)
For the purposes of sub-paragraph (3)—
(a)
an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b)
where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5)
An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount that represents that benefit.
9.
(1)
Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works referred to in paragraph 5(2) 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 a utility undertaker, or there is any interruption in any service provided by the utility undertaker, the undertaker must—
(a)
bear and pay the cost reasonably incurred by the utility undertaker in making good such damage or restoring the supply; and
(b)
make reasonable compensation to the utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,
by reason or in consequence of any such damage or interruption.
(2)
Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3)
A utility undertaker must give the undertaker reasonable notice of any claim or demand and no settlement or compromise must be made without the consent of the undertaker which, if it withholds such consent, must have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
10.
Nothing in this Part affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker at the date on which this Order is made.
11.
In relation to any dispute arising under this Part, the reference in article 44 (arbitration) to the Secretary of State must be read as a reference to the Institution of Engineering and Technology.
PART 2Protection of Network Rail Infrastructure Limited
1.
The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and Network Rail and, where paragraph 15 applies, any other person on whom rights or obligations are conferred by that paragraph.
2.
In this Part—
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
“engineer” means an engineer appointed by Network Rail for the purposes of this Order;
“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 property” means any railway belonging to Network Rail and—
(a)
any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and
(b)
any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment;
“specified work” means so much of any of the onshore works as is situated on, across, under, over or within 15 metres of, or may in any way affect, railway property.
3.
(1)
Where under this Part Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures, and any obligations under its network licence or under statute.
(2)
In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—
(a)
co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and
(b)
use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised project pursuant to this Order.
4.
(1)
The undertaker must not exercise the powers conferred by article 19 (authority to survey and investigate 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 must 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 must not in exercise of the powers conferred by this Order use or acquire new rights over any railway property except with the consent of Network Rail.
(4)
Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.
5.
(1)
The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.
(2)
The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed, and if by the end of the period of 28 days beginning with the day on which such plans have been supplied to Network Rail the engineer has not intimated disapproval of those plans and the grounds of disapproval, the undertaker may serve on the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the day on which the engineer receives written notice from the undertaker. If by the expiry of the further period of 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.
(3)
If by the expiry of 28 days beginning with the day on which written notice was served on 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 that in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph and under the supervision (where appropriate and if given) of the undertaker.
(4)
When signifying approval of the plans, the engineer may specify any protective works (whether temporary or permanent) that in the engineer’s opinion should be carried out before commencement of 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, decommissioning 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 must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker, in either case with all reasonable dispatch, and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.
6.
(1)
Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—
(a)
with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;
(b)
under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer; and
(c)
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 on it and the use by passengers of railway property.
(2)
If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of, the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss that it may sustain by reason of any such damage, interference or obstruction.
(3)
Nothing in this Part imposes any liability on the undertaker with respect to—
(a)
any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents; or
(b)
any liability on Network Rail with respect to any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractor or agents.
7.
The undertaker must—
(a)
at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b)
supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.
8.
Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.
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 and efficient 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 (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs that 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 itself desires to construct that part of the specified work that in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any approval of the specified work under paragraph 5(1), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss that it may suffer by means of the execution by Network Rail of that specified work.
(3)
The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 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 savings must be set off against any sum payable by the undertaker to Network Rail under this paragraph.
10.
The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses 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 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 the engineer of the construction of a specified work;
(c)
in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;
(d)
in respect of any special traffic working resulting from any speed restrictions that may, in the opinion of the engineer, be required 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 that 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.
(1)
In this paragraph—
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the onshore works where such interference is of a level that adversely affects the safe operation of Network Rail’s apparatus;
“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the onshore works) that are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2)
This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the onshore works giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).
(3)
Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised project take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4)
In order to facilitate the undertaker’s compliance with sub-paragraph (3)—
(a)
the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus that may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)
Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to paragraph (a); and
(c)
Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to paragraph (a).
(5)
In any case where it is established that EMI can reasonably be prevented only by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 5(1) has effect subject to this sub-paragraph.
(6)
If, at any time before commencement of regular operation of the onshore works and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised project causes EMI, the undertaker must immediately on receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.
(7)
In the event of EMI having occurred—
(a)
the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;
(b)
Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI; and
(c)
Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI.
(8)
Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraph (5) or (6)—
(a)
Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and
(b)
any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 6.
(9)
To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail 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 Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10)
For the purpose of paragraph 10(a) any modifications to Network Rail’s apparatus under this paragraph is deemed to be protective works referred to in that sub-paragraph.
(11)
In relation to any dispute arising under this paragraph, the reference in article 44 (arbitration) to the Secretary of State must 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 Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.
13.
The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
14.
Any additional expenses that Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ 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.
15.
(1)
The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part that may be occasioned to or reasonably incurred by Network Rail—
(a)
by reason of the construction or maintenance of a specified work or its failure; 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 on a specified work;
and the undertaker must indemnify Network Rail and keep Network Rail indemnified 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 may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under this Part.
(2)
Network Rail must give the undertaker reasonable notice of any such claim or demand, and no settlement or compromise of such a claim or demand must be made without the prior consent of the undertaker.
(3)
The sums payable by the undertaker under sub-paragraph (1) must 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 must promptly pay to each train operator the amount of any sums that Network Rail receives under sub-paragraph (1) that relates to the relevant costs of that train operator.
(5)
The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).
(6)
In this paragraph—
“relevant costs” means the costs, direct losses and expenses (including loss of revenue) 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 sub-paragraph (1);
“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.
16.
Network Rail must, on receipt of a request from the undertaker, from time to time provide to the undertaker free of charge 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 be made pursuant to this Part (including any claim relating to the relevant costs).
17.
In the assessment of any sums payable to Network Rail under this Part, there must 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.
18.
The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—
(a)
any railway property shown on the works plans and land plan 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.
19.
Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.
20.
The undertaker must 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 42 (certification of plans and documents, etc.), and any such notice must be given no later than 28 days before any such application is made and must 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.
21.
The undertaker must, no later than 28 days from the date that the plans are certified by the Secretary of State in accordance with article 42 (certification of plans and documents, etc.), provide to Network Rail a set of plans that relate to the specified works in the form of a computer disc with read-only memory.
PART 3Protection of operators of electronic communications code networks
1.
(1)
The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the operator.
(2)
In this Part—
“2003 Act” means the Communications Act 2003;
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“electronic communications code network” means—
(a)
so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and
(b)
an electronic communications network that the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;
“operator” means the operator of an electronic communications code network.
2.
The temporary stopping up or diversion of any street under article 14 (temporary stopping up of streets) does not affect any right of the operator under paragraph 9 of the electronic communications code to maintain any apparatus that, at the time of the stopping up or diversion, is in that street.
3.
(1)
Subject to sub-paragraphs (2) to (4), if as the result of the authorised project or its construction, or of any subsidence resulting from any of the project—
(a)
any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the project), or other property of an operator; or
(b)
there is any interruption in the supply of the service provided by an operator,
the undertaker must—
(c)
bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply;
(d)
make reasonable compensation to an operator for loss sustained by it; and
(e)
indemnify an operator against claims, demands, proceedings, costs, damages and expenses that may be made or taken against, or recovered from, or incurred by, an operator by reason, or in consequence of, any such damage or interruption.
(2)
Sub-paragraph (1) does not apply to—
(a)
any apparatus in respect of which the relations between the undertaker and an operator are regulated by Part 3 of the 1991 Act; or
(b)
any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised project.
(3)
Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(4)
The operator must give the undertaker reasonable notice of any such claim or demand, and no settlement or compromise of the claim or demand may be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(5)
Any difference arising between the undertaker and the operator under this Part is to be referred to and settled by arbitration under article 44 (arbitration).
PART 4Protection of offshore cables and pipelines
1.
The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the Company concerned.
2.
(1)
In this Part—
“cables” means the whole or any part of the UK-Germany-6 cable, the TATA North Europe cable and UK-Denmark-4 cable;
“Company” means—
(a)
Cable and Wireless Worldwide plc and BT Subsea Cables Limited in relation to the UK-Germany-6 cable;
(b)
BT Group plc in relation to the UK-Denmark-4 cable;
(c)
Tata Communications (UK) Limited in relation to the TATA North Europe cable;
(d)
Shell UK Limited in relation to the Shearwater to Bacton (SEAL) pipeline; and
(e)
Gassco AS in relation to the Langeled Pipeline;
“construction” includes execution, placing and altering and cognate expressions must be construed accordingly;
“Langeled Pipeline” means the underwater pipeline transporting Norwegian natural gas to the United Kingdom across the North Sea;
“pipelines” means the whole or any part of the Langeled pipeline and the Shearwater to Bacton (SEAL) pipeline that are used for the conveyance of any hydrocarbon fuel and in respect of which a Company has an interest for the time being, together with any associated plant and equipment serving those pipelines;
“plans” includes sections, drawings, calculations, methods of construction, particulars and specifications;
“protected property” means the cables and pipelines—
(a)
any part of which is situated within the Order limits for the offshore works; and
(b)
in respect of which a Company has an interest for the time being;
“protective works” has the meaning given in paragraph 9;
“Shearwater to Bacton (SEAL) pipeline” means the gas pipeline connecting the Shell terminal in the UK to the Shearwater and Elgin-Franklin gas fields in the central North Sea;
“TATA North Europe cable” means the active telecommunications cable laid between North Yorkshire and the Netherlands across the North Sea;
“UK-Denmark-4 cable” means the out-of-service telecommunications cable laid between the United Kingdom and Denmark;
“UK-Germany-6 cable” means the out-of-service telecommunications cable laid between the United Kingdom and Germany;
“works” means Works No. 1A, 1B, 2A, 2B, 2BA, 2BC, 2T, 3A and 3B.
(2)
In this Part, references to a Company—
(a)
are references to any (or, as the case may be, each) Company that has an interest in the protected property concerned for the time being; and
(b)
include references to its successors in title in respect of any protected property.
3.
Despite anything in this Order or shown on the works plans, the undertaker must not pursuant to the powers in this Order appropriate and remove any protected property otherwise than by agreement with the Company.
4.
Despite anything in this Order, except in the case of any part of the protected property that the Company certifies in writing is permanently disused, the undertaker must not exercise the powers in this Order to relocate any protected property until suitable alternative facilities have been provided by the undertaker and are available for use to the reasonable satisfaction of the Company.
5.
The undertaker must use its best endeavours—
(a)
in exercising any of the powers in this Order to avoid or (failing avoidance) to minimise any damage or disruption to the protected property; and
(b)
without limiting sub-paragraph (a), to ensure that the works do not at any time fall into such a condition as to compromise the integrity or operation of the protected property.
6.
Not less than 8 months before commencing construction of the works, the undertaker must furnish to the Company a programme for the works proposed and a general indication of the nature and location of those works and, if within 28 days from the receipt by a Company of that programme and general indication the Company gives notice in writing to the undertaker that any part of the offshore works indicated in the programme may in any way affect protected property, paragraphs 8 and 9 apply with respect to that part of those works.
7.
On giving any notice to the undertaker under paragraph 6, the Company must furnish existing drawings showing to the best of its knowledge the position and depth of the relevant part of the protected property.
8.
Not less than 4 months before commencing construction of any part of the offshore works that may significantly affect the protected property, the undertaker must furnish to the Company detailed plans and specifications of the relevant part of the offshore works and must have due regard to any representations made by a Company relating to such plans or to the programme for the works and make reasonable changes required to avoid risk of harm to the cables by the construction.
9.
At any time within a period of 1 month from the receipt by the Company of the plans referred to in paragraph 8, the Company may by notice in writing to the undertaker specify any reasonable temporary or permanent works or measures (the “protective works”) that in its reasonable opinion should be carried out or taken by the undertaker before commencement or during construction of the works in order to ensure the stability of the protected property (shown on the drawings furnished by the Company under paragraph 7) or to protect them from injury, and such protective works must be constructed by the undertaker at its own expense and under the inspection (if any) of the Company.
10.
Except in the case of protective works that the Company has informed the undertaker in writing may be carried out during the construction of the works, the undertaker must not commence the construction of any work within 50 metres of, or which may in any way affect, the protected property until the protective works relating to the work have been completed to the reasonable satisfaction of the Company.
11.
In the case of protective works of which the Company has informed the undertaker in writing as mentioned in paragraph 10, the undertaker must comply with all reasonable requirements of the Company arising from its inspection under paragraph 9 as promptly as practicable after the undertaker has been notified of such requirements.
12.
Except in an emergency (when it must give such notice as may be reasonably practicable), the undertaker must give the Company not less than 56 days’ notice of its intention to carry out any works for the repair or maintenance of the works in so far as such works may affect or interfere with the protected property.
13.
The undertaker must repay to the Company the reasonable expenses properly incurred by the Company in or in connection with the removal and relaying or replacing of any part of protected property, including the provision, laying down or placing of any alternative facilities.
14.
The undertaker must repay to the Company the reasonable expenses properly incurred by the Company in or in connection with the preparation of drawings or notice referred to in paragraph 6 or 7 and by the Company in the watching and inspecting of any protective works relating to protected property.
15.
The preceding provisions of this Part do not apply in relation to any protected property laid by or for the use of the Company after the coming into force of this Order.
16.
Nothing in this Part affects any enactment or any regulations made under any enactment or any agreement regulating the relations between the undertaker and the Company in respect of any protected property laid within the Order limits for the offshore works at the date on which this Order comes into force.
PART 5Protection of Environment Agency
1.
(1)
The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the Agency.
(2)
In this Part—
“Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal, and “construct” and “constructed” are to be construed accordingly;
“drainage work” means any watercourse and includes any land that provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring and any ancillary works constructed as a consequence of works carried out for drainage purposes;
“fishery” means any watercourse within the limits of deviation containing fish and fish in such waters and the spawn, habitat or food of such fish;
“plans” includes sections, drawings, specifications and method statements;
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—
(a)
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
(b)
affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;
(c)
cause obstruction to the free passage of fish or damage to any fishery; or
(d)
affect the conservation, distribution or use of water resources;
“watercourse” means all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer.
2.
(1)
Before commencing construction of any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably require.
(2)
Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 12.
(3)
Any approval of the Agency required under this paragraph—
(a)
must not be unreasonably withheld or delayed;
(b)
is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval or receipt of further particulars if such particulars have been required by the Agency and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and
(c)
may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.
(4)
The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).
3.
Without limiting paragraph 2 but subject always to the provision of that paragraph as to reasonableness, the requirements that the Agency may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a)
to safeguard any drainage work against damage;
(b)
to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of the specified work.
4.
(1)
Subject to sub-paragraph (2), the specified work, and all protective works required by the Agency under paragraph 3, must be constructed—
(a)
without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under this Part; and
(b)
to the reasonable satisfaction of the Agency, and an officer of the Agency is entitled to watch and inspect the construction of such works.
(2)
The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion no later than 7 days after the day on which it is completed.
(3)
If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of any specified work.
(4)
If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part 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 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 sub-paragraph (6) and paragraph 8, if within a reasonable period, being not less than 28 days from the day on which a notice under sub-paragraph (4) is served, the undertaker 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 is recoverable from the undertaker.
(6)
In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.
5.
(1)
Subject to sub-paragraph (6), the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work that is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2)
If any such drainage work that the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) 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)
Subject to paragraph 8, if, within a reasonable period being not less than 28 days beginning with the day on which a notice in respect of any drainage work is served on the undertaker under sub-paragraph (2), the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently 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 so doing from the undertaker.
(4)
If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with the provisions of this Part, the Agency may serve written notice requiring the undertaker to cease all or part of the specified works, and the undertaker must cease the specified works or part of them until it has obtained the consent or complied with the condition unless the cessation of the specified works or part of them would cause greater damage than compliance with the written notice.
(5)
In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.
(6)
This paragraph does not apply to drainage works that are vested in the Agency or that the Agency or another person is liable to maintain and is not prevented by this Order from so doing.
6.
Subject to paragraph 8, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency, and if the undertaker fails to do so, the Agency may make good the same and recover from the undertaker the expense reasonably incurred by it in so doing.
7.
(1)
The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in a fishery during the construction of any specified work.
(2)
If by reason of—
(a)
the construction of any specified work; or
(b)
the failure of any such work,
damage to the 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)
Subject to paragraph 8, 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 sub-paragraph (2), the Agency may take those steps and may recover from the undertaker the expense reasonably incurred by it in doing so.
(4)
Subject to paragraph 8, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery 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 notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
8.
(1)
Nothing in paragraphs 4(5), 5(3), 6 and 7(3) and (4) authorises the Agency to execute works on or affecting the authorised development without the prior consent in writing of the undertaker.
(2)
Consent under sub-paragraph (1) must not be unreasonably withheld or delayed, and the undertaker is deemed to have given its consent if it has not refused consent within 2 months of receiving a written request by the Agency.
9.
The undertaker must indemnify the Agency in respect of all costs, charges and expenses that the Agency may reasonably incur or have to pay or that it may sustain—
(a)
in the examination or approval of plans under this Part; and
(b)
in the inspection of the construction of the specified works or any protective works required by the Agency under this Part; and
(c)
the carrying out of any surveys or tests by the Agency that are reasonably required in connection with the construction of the specified works.
10.
(1)
Without limiting the other provisions of this Part, the undertaker must indemnify the Agency from all claims, demands, proceedings, costs, damages, expenses or loss that may be made or taken against, recovered from, or incurred by, the Agency by reason of—
(a)
any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;
(b)
any damage to a fishery;
(c)
any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;
(d)
any flooding or increased flooding of any such lands; or
(e)
inadequate water quality in any watercourse or in any groundwater that is caused by the construction of any of the specified works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the work.
(2)
The Agency must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker, which agreement must not be unreasonably withheld or delayed.
11.
The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part.
12.
Any dispute arising between the undertaker and the Agency under this Part, if the parties agree, is to be determined by arbitration under article 44 (arbitration), but otherwise is to be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by the undertaker or the Agency, after notice in writing to the other.