The York Potash Harbour Facilities Order 2016

Article 34

SCHEDULE 10 FOR THE PROTECTION OF ASSET OWNERS AND OTHERS

PART 1 FOR THE PROTECTION OF ASSETS BRIDGED OR OVERSAILED

1.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed between the undertaker and the protected asset owner.

2.  In this Part of this Schedule—

“construction” includes execution, placing, alteration, reconstruction and decommissioning and “construct” and “constructed” have corresponding meanings;

“Deeds of Grant” means the deeds dated 23rd September 1949 and 23rd February 1954 made between Imperial Chemical Industries Limited and Dorman Long & Co 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 the protected asset;

“protected asset” means the assets and land identified in the annex to this Part of this Schedule; and

“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, a protected asset.

3.  Where under this Part of this Schedule a protected asset owner is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that the protected asset owner complies with any obligations under statute.

4.—(1) The undertaker must not in the exercise of the powers conferred by this Order—

(a) create, acquire, appropriate, extinguish or suspend any rights or covenants in respect of any protected asset if the authorised development can reasonably and practicably be carried out in accordance with the protective provisions without such creation, acquisition, appropriation, extinguishment or suspension; or

(b) regardless of sub-paragraph (a) restrict the rights contained in the Deeds of Grant in so far as such rights are consistent with the construction, operation and maintenance of the authorised development in accordance with the protective provisions.

(2) The undertaker must in the exercise of the powers conferred by this Order at all times act so as to minimise, as far as reasonably practicable, any detrimental effects on protected assets.

(3) The undertaker must not in the exercise of the powers conferred by this Order prevent access via any existing pedestrian or vehicular access to any protected asset, unless preventing such access is with the consent of the protected asset owner and is in any event subject to exception in the case of emergency.

(4) The undertaker must not under the powers of this Order acquire or create new rights over a protected asset other than such rights as are necessary for the construction, operation and maintenance of Works No. 4 and Works No. 5 in accordance with the protective provisions without the consent of the protected asset owner.

(5) Where the protected asset owner is asked to give its consent under this paragraph such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5.—(1) Before carrying out any works on any part of the authorised development affecting a protected asset the undertaker must put in place a policy of insurance with a reputable insurer against consequential loss and damage suffered by protected asset owners, and evidence of that insurance must be provided on request to protected asset owners.

(2) Not less than 30 days before carrying out any works on any part of the authorised development affecting a protected asset or before proposing to change the terms of the insurance policy, the undertaker must notify the affected owners of details of the terms of the insurance policy that it proposes to put in place including the proposed level of the cover to the provided.

(3) The undertaker must maintain insurance in relation to works or the use of the authorised development affecting the protected asset during the operation of the authorised development at the level specified in the notice of proposed insurance.

6.  If a protected asset owner notifies the undertaker that it considers that any proposed exercise by the undertaker of a power under this Order breaches these protective provisions or if there is a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 5 before such a power may be exercised—

(a) the protected asset owner may refer the matter to arbitration for determination under article 40 (arbitration) and paragraph 21;

(b) in respect of an alleged breach of these protective provisions in relation to any proposed exercise by the undertaker of a power under this Order that has been referred to arbitration the undertaker must not exercise the power until that determination has been concluded; and

(c) the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under article 40(1) is completed, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.

7.—(1) The undertaker must before commencing construction of any specified work supply to the protected asset owner proper and sufficient plans of and construction methodology for that work for the reasonable approval of the protected asset owner and the undertaker must as soon as reasonably practicable provide such further particulars as the protected asset owner may within 45 days from the receipt of the plans and construction methodology reasonably require.

(2) The specified work must not be commenced except in accordance with such plans and construction methodology as have been approved in writing by the protected asset owner or have been deemed to be approved under sub-paragraph (3) or settled by arbitration under the provisions of article 40(1) and paragraph 21.

(3) The approval of the protected asset owner under sub-paragraph (1) must not be unreasonably withheld, and in the event that—

(a) no response has been received to the submission of the plans and construction methodology within 45 days of the submission of the plans by the undertaker to the protected asset owner and no further particulars have been requested under sub-paragraph (1); or

(b) no refusal of approval has been received within 30 days of the undertaker providing to the protected asset owner the further particulars supplied under sub-paragraph (1),

approval of the plans and construction methodology is to be deemed to be given and the relevant works may commence.

(4) No refusal of the approval sought under sub-paragraph (1) is reasonable for the purposes of sub-paragraph (3) or determination under article 40(1) unless the protected asset owner can reasonably demonstrate that the construction of the specified work will materially affect the safe operation or structural integrity of the protected asset concerned.

(5) In the event that the undertaker considers that the protected asset owner has unreasonably withheld its authorisation under sub-paragraph (1), the undertaker may refer the matter to arbitration for determination under article 40 and paragraph 21.

8.—(1) Any specified work, when commenced, must so far as reasonably practicable be constructed in accordance with these protective provisions and—

(a) without unnecessary delay in accordance with the plans and construction methodology approved or deemed to have been approved or settled under paragraph 7;

(b) under the supervision (if given) and to the reasonable satisfaction of the protected asset owner;

(c) in such manner as to avoid damage to the protected asset; and

(d) so as not to interfere with or obstruct the free, uninterrupted and safe use of any protected asset or any traffic on that asset.

(2) If any damage to a protected asset 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 make good such damage without unreasonable delay and must pay to the protected asset owner all reasonable expenses incurred by the protected asset owner and compensate for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of the protected asset owner or its servants, contractors or agents or any liability on the protected asset owner with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

9.  The undertaker must—

(a) at all times afford reasonable facilities to the protected asset owner for access to a specified work during its construction; and

(b) supply the protected asset owner with all such information as it may reasonably require with regard to a specified work or the method of constructing it.

10.—(1) If any permanent or temporary alterations or additions to a protected asset are reasonably necessary in consequence of the construction or operation of a specified work, in order to ensure the safety of the protected asset or the continued safe operation of the protected asset, such alterations and additions may be carried out by the protected asset owner and the undertaker must pay to the protected asset owner the 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 the protected asset owner in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) The protected asset owner, in respect of the capitalised sums referred to in this paragraph, must provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(3) If the cost of maintaining, working or renewing a protected asset is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to the protected asset owner under this paragraph.

11.  The undertaker must repay to the protected asset owner all reasonable fees, costs, charges and expenses reasonably incurred by the protected asset owner—

(a) in respect of the approval by the protected asset owner of plans submitted by the undertaker and the supervision by it of the construction of a specified work;

(b) in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting the protected asset 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;

(c) in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the protected asset owner, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution of diversion of services which may be reasonably necessary for the same reason.

12.  If at any time after the completion of a specified work, not being a work vested in a protected asset owner, the protected asset owner 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 a protected asset, the undertaker, on receipt of such notice and without unreasonable delay, must take such steps as may be reasonably necessary (and in accordance with the protective provisions) to put that specified work in such state of maintenance as not adversely to affect the protected asset.

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 protected asset unless it has first consulted the protected asset owner and it must comply with the protected asset owner’s reasonable requirements for preventing conflict or confusion between such illumination or illuminated sign or signal and any signal or other light used for controlling, directing or securing the safety of traffic on the protected asset.

14.  Any additional expenses which a protected asset owner may reasonably incur in altering, reconstructing or maintaining a protected asset under any powers existing at the making of this Order by reason of the existence of a specified work, provided that (other than in the case of emergency or an operational imperative requiring urgent action) 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, are to be repaid by the undertaker to the protected asset owner.

15.  The protected asset owner must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule 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 under this Part of this Schedule.

16.  In the assessment of any sums payable to the protected asset owner under this Part of this Schedule, any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the protected asset owner must not be taken into account 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 of this Schedule or increasing the sums so payable.

17.  The undertaker and the protected asset owner may (at their absolute discretion), enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a) any protected asset;

(b) any lands, works or other property held in connection with any such protected asset; and

(c) any rights and obligations (whether or not statutory) of the protected asset owner relating to any protected asset or any lands, works or other property referred to in this paragraph.

18.  The undertaker must give written notice to the protected asset owner if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 8 (consent to transfer benefit of Order) 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 (including the identity of the parties to which it relates);

(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.

19.  The undertaker, no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 38 (certification of plans etc.) are certified by the Secretary of State, must provide a set of those plans to the protected asset owner in the form of a computer disc with read only memory or such other electronic data format as the protected asset owner may reasonably request.

20.—(1) The plans and construction methodology submitted for approval under paragraph 7 of this Part of this Schedule must have regard to the principles set out in the relevant constructability notes but a refusal of plans or construction methodology from a protected asset owner from whom approval is sought under paragraph 7 is not to be deemed to be unreasonable solely on the basis that the plans and construction methodology comply with the relevant constructability note.

(2) The minimum headroom clearance between the upper surface of the hot metal rail and bridge shown as MC3 on the conveyor route plans and the underside of the conveyor must be 7.850 metres.

(3) The minimum headroom clearance between the upper surface of the road and bridge shown as MC6 on the conveyor route plans and the underside of the conveyor must be 8.240 metres.

21.—(1) Any dispute under this Schedule is to be determined by arbitration as provided for in article 40 (arbitration), provided that—

(a) all parties involved in settling any difference have first used best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the arbitrator is to be appointed in accordance with article 40; and

(b) any dispute to which this paragraph relates must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an arbitrator, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(2) Any dispute under this Schedule that is referred to arbitration in accordance with article 40 must, subject to the requirements of the appointed arbitrator, follow the procedure set out in sub-paragraphs (3) to (7).

(3) The fees of the arbitrator are payable by the parties in such proportions as the arbitrator may determine or, in the absence of such determination, equally.

(4) The arbitrator must—

(a) invite the parties to make submission to the arbitrator in writing and copied to the other party to be received by the arbitrator within 28 days of his or her appointment (or such other timescale as the arbitrator determines);

(b) permit a party to comment on the submissions made by the other party within 28 days of receipt of the submission (or such other timescale as the arbitrator determines);

(c) issue a decision within 42 days of receipt of the submissions under (ii); and

(d) give reasons for his or her decision.

(5) The arbitrator must consider where relevant—

(a) the development outcome sought by the undertaker;

(b) the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;

(c) the nature of the power sought to be exercised by the undertaker;

(d) the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;

(e) the ability of any party other than the undertaker to undertake a relevant operation or development in a timely and cost-effective manner;

(f) the effects of the undertaker’s proposals on any party other than the undertaker and the effects of any operation or development undertaken by any party other than the undertaker;

(g) whether this Order provides any alternative powers by which the undertaker could reasonably achieve the development outcome sought in a manner that would reduce or eliminate adverse effects on any party other than the undertaker;

(h) the effectiveness, cost and reasonableness of proposals for mitigation arising from any party; and

(i) any other important and relevant consideration.

(6) The seat of the arbitration is to be England and Wales.

(7) The arbitration is to be governed by both the Arbitration Act 1996(1) and the requirements set out in sub-paragraphs (3) to (5) or as agreed between the parties. Should the parties be unable to agree on the rules for arbitration, any party may, upon giving written notice to other parties, apply to the President of the Institution of Civil Engineers for any decision on rules that may be necessary.

ANNEX

(1) Asset	(2) Asset Owner	(3) Crossing Number/Location
Land subject to lease in favour of M&G Fuels	M&G Solid Fuels LLP	Plot 60 on the land plans
A1085	Redcar and Cleveland Borough Council	MC1on the conveyor route plans
Hot Metal Rail and Bridge	Tata Steel UK Limited and Sahaviriya Steel Industries UK Limited	MC3 on the conveyor route plans
SSI Road and Bridge	Tata Steel UK Limited and Sahaviriya Steel Industries UK Limited	MC6 on the conveyor route plans
Land and assets owned/occupied by Tata Steel UK Limited	Tata Steel UK Limited	Plot 37a on the land plans

PART 2 FOR THE PROTECTION OF REDCAR BULK TERMINAL

22.  The following provisions of this Part of this Schedule have effect for the benefit of any owner of the Redcar Bulk Terminal.

23.—(1) The undertaker must not commence the construction of any part of Works No. 4 within the conveyor route (northern) or any part of Works No. 5 which are to be situated within or above plots 9 or 10 identified on the land plans without first agreeing with the owners of the Redcar Bulk Terminal (and afterwards implementing) protocols to—

(a) govern access for the undertaker and the owners of the Redcar Bulk Terminal to the area shown on Document 3.16 which protocol must have due regard to proper security and operational requirements of the Redcar Bulk Terminal and the undertaker;

(b) ensure that the construction and use of the authorised development within plots 9 and 10 incorporates the appropriate health, safety and security requirements of the owner or occupier of Redcar Bulk Terminal and the undertaker; and

(c) locate, protect and (to the extent required to ensure continuation of supply) replace, relocate and reconnect any services or service media within plots 9 and 10.

(2) In the event that the undertaker considers that the owner of the Redcar Bulk Terminal has unreasonably withheld its agreement under sub-paragraph (1), the undertaker may refer the matter to arbitration for determination under article 40 (arbitration) and paragraph 21.

(1)

1996 c. 23.