The National Grid (Hinkley Point C Connection Project) Order 2016

PART 8 PROTECTION FOR RWE GENERATION UK PLC

77.  The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and RWE.

78.  In this Part—

“apparatus” means any of the following apparatus within the Order limits, namely wharf offloading facilities at Portbury, fuel stocking areas at Portbury, a tunnel beneath the River Avon, bulk handling terminal conveyors, fuel hoppers, refuelling points, freight connection onto the railway network, site offices and car park, belonging to or maintained by RWE for the purposes of loading, unloading, stocking and transporting of fuel (including but not limited to coal) for the purposes of fuelling Aberthaw Power Station or providing services to any other third parties; and includes any structure in which apparatus is or to be lodged or which gives or will give access to apparatus.

“in” in a context referring to apparatus in land includes a reference to apparatus across, under, over or upon land;

“RWE” means RWE Generation UK plc (company registration number 3892782) and any associated company of RWE Generation UK plc which holds an interest in the apparatus; 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) the holding company of RWE Generation UK plc, a subsidiary of RWE Generation UK plc or another subsidiary of the holding company of RWE Generation UK plc;

“specified works” means so much of any of the authorised development as is situated upon, across, under, or over parcels 107, 110, 187, 188, 189, 190, 191, 195, 197, 199 and 201 in Section G of the Book of Reference (being parcels in which RWE has an interest) or that are near to, or will or may in any way adversely affect the apparatus.

79.  Despite any provision of this Order or anything shown on the Land Plans, the undertaker must not acquire any apparatus otherwise than by agreement.

80.  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 or under any other statutory power, and any right of RWE to use, maintain, or renew that apparatus in that land must not be extinguished.

81.—(1) Not less than 56 days before starting the execution of specified works, the undertaker must submit to RWE 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 RWE for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and RWE is entitled to watch and inspect the execution of those works, and the undertaker must supply RWE with any additional information concerning such works as RWE may reasonably require.

(3) Any requirements made by RWE under sub-paragraph (2) must be made within a period of 56 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) Where RWE requires any protective works under sub-paragraph (2) to be carried out either by itself or by the undertaker (whether of a permanent or temporary nature), the protective works must be carried out to RWE’s reasonable satisfaction prior to the carrying out of the specified works.

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of 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 RWE 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.

82.  The undertaker must pay to RWE the proper and reasonable expenses reasonably incurred by RWE in, or in connection with, the inspection, alteration or protection of any apparatus.

83.—(1) Subject to sub-paragraph (3), if by reason, or in consequence, of the construction, use, existence, operation or failure of any specified works or in consequence of the construction, use, existence, operation, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, any damage is caused to any apparatus or property of RWE, or to operations, or there is any interruption in any service provided to RWE or by RWE, or in the supply of any goods to RWE or by RWE, or RWE becomes liable to pay any amount to any third party, the undertaker must—

(a) bear and pay on demand the proper and reasonable cost reasonably and properly incurred by RWE in making good such damage or restoring operations, services or supply; and

(b) indemnify RWE for any other expenses, loss (whether direct or indirect and including losses of an economic nature), demands, proceedings, damages, claims penalty or costs incurred by or recovered from RWE, by reason or in consequence of any such damage or interruption or RWE becoming so liable to any third party.

(2) The fact that any act or thing may have been done by RWE on behalf of the undertaker or in accordance with a plan approved by RWE or in accordance with any requirement of RWE or its supervision does not (subject to sub-paragraph (3)) excuse the undertaker from liability under sub-paragraph (1).

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any loss, damage, injury or interruption to the extent that it is attributable to the neglect or default of RWE, its officers, servants, contractors or agents.

(4) RWE must give the undertaker reasonable notice (being not less than 28 days) of any claim or demand, and no settlement or compromise may be made without the consent of the undertaker (not to be unreasonably withheld or delayed) which, if it reasonably withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.