The Meaford Gas Fired Generating Station Order 2016

PART 8 FOR THE PROTECTION OF WPD

86.  For the protection of WPD referred to in this part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and WPD.

87.—(1) In this part of this Schedule:-

“alternative apparatus” means alternative apparatus adequate to enable WPD to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means any conduit overhead lines cables ducts pipes or other apparatus or equipment belonging to or maintained by WPD for the purposes of electricity transmission and its distribution and includes any structure in which apparatus is or will be lodged or which 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 upon land;

“plan” or “plans” includes all designs, drawings, specifications, method statements, programmes, calculations, risk assessments and other documents that are reasonably necessary to properly and sufficiently describe and assess the works to be executed;

“specified work” means so much of any of the authorised development that will or may be situated on any land either owned by WPD or in respect of which WPD has an easement or wayleave for its apparatus (save that this shall not include any easement or wayleave for its apparatus arising from the Licence to Retain Assets dated 30 March 1990 between the Central Electricity Generating Board (National Power Division) and the Midlands Electricity Board) or any other interest or to carry out any works within 3 metres of any apparatus;

“WPD” means Western Power Distribution (West Midlands) Plc (Company Registration Number 03600574) whose registered office is at Avonbank, Feeder Road, Bristol, BS2 0TB in its capacity as a licence holder within the meaning of Part 1 of the Electricity Act 1989;

(2) This Schedule does not apply to apparatus in respect of which the relations between the undertaker and WPD are regulated by the provisions of Part 3 of the 1991 Act.

88.  Notwithstanding the temporary prohibition or restriction under the powers of article 12 (temporary prohibition or restriction of use of streets), WPD shall be at liberty at all times to take all necessary access across any such street and/or to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.

89.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement (such agreement not to be unreasonably withheld or delayed).

90.—(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 or over which access to any apparatus is enjoyed or requires that WPD’s apparatus is relocated or diverted, that apparatus must not be removed under this part of this Schedule, and any right of WPD to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of WPD in accordance with subparagraphs (2) to (7).

(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, the undertaker must give to WPD 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 WPD reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to WPD 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, WPD must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use all reasonable 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 of this Schedule must be constructed in such manner and in such line or situation as may be agreed between WPD and the undertaker or in default of agreement settled by arbitration in accordance with paragraph 96.

(5) WPD must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with paragraph 96, and after the grant to WPD 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 of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to WPD 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 controlled by the undertaker, that work, instead of being executed by WPD, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of WPD.

(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation around the bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

91.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to WPD 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 upon such terms and conditions as may be agreed between the undertaker and WPD or in default of agreement settled by arbitration in accordance with paragraph 96.

(2) 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 WPD 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 WPD as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

92.—(1) Not less than 60 days before the undertaker intends to start the execution of any specified work, the undertaker must submit to WPD a plan, section and description of the works to be executed.

(2) The undertaker shall not commence any works to which sub-paragraph (1) applies until WPD has given written approval of the plan so submitted, such approval not to be unreasonably withheld or delayed.

(3) Within a period of 60 days from the date on which a plan, section and description has been received by WPD pursuant to paragraph 93(1), WPD shall advise the undertaker in writing whether any amendments to the plan, section or description of the specified works are reasonably required or whether it reasonably requires any additional measures to be taken by the undertaker to ensure the satisfactory protection of its apparatus or to secure access to it. If by the expiry of the 60 days WPD has not advised the undertaker in writing of its approval or disapproval of the plans, it shall be deemed to have approved the plans, sections or descriptions as submitted.

(4) Any works to which sub-paragraph (1) applies must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) (as the same may be amended pursuant to sub-paragraph (6)) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by WPD for the protection of the apparatus, or for securing access to it, and WPD is entitled to watch and inspect the execution of those works.

(5) At all times when carrying out any works authorised under the Order the undertaker shall comply with WPD’s Avoidance of Danger from Electricity Overhead Lines and Underground Cables (2014), the Energy Network Associations’ A Guide to the Safe Use of Mechanical Plant in the Vicinity of Electricity Overhead Lines (undated), the Health and Safety Executive’s GS6 Avoiding danger from overhead power lines and the Health and Safety Executive’s HSG47 Avoiding danger from underground services (Third Addition)(2014), as the same may be replaced from time to time.

(6) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 60 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.

(7) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to WPD 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.

93.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any specified work any damage is caused to any apparatus or property of WPD, or there is any interruption in any services provided by WPD, or WPD becomes liable to pay any amount to any third party, the undertaker shall—

(a) bear and pay on demand the cost reasonably incurred by WPD in making good such damage or restoring the supply; and

(b) indemnify WPD for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from WPD, by reason or in consequence of any such damage or interruption or WPD becoming liable to any third party as aforesaid.

(2) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of—

(a) any damage or interruption to the extent that it is attributable to the neglect or default of WPD, its officers, servants, contractors or agents; and

(b) any authorised development and/or any other works authorised by this Schedule carried out by WPD as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Act or under article 6 of the Order subject to the proviso that once such works become apparatus (“new apparatus”), any works yet to be executed and not falling within this sub-section (b) shall be subject to the full terms of this Schedule including this paragraph 94 in respect of such new apparatus.

(3) WPD shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the undertaker and considering its representations.

94.  The undertaker must repay to WPD the reasonable expenses incurred by WPD in, or in connection with, the inspection or protection of any apparatus which may be required pursuant to paragraphs 90(6) or 92(4) of this Part.

95.  Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and WPD in respect of any apparatus laid or erected in the Order land on the date on which this Order is made.

96.—(1) Subject to paragraph 96(2), any difference or dispute arising between the undertaker and WPD arising out of or in connection with this Schedule shall, unless otherwise agreed in writing between the undertaker and WPD, be referred to and finally resolved by arbitration pursuant to the arbitration rules of the Electricity Arbitration Association in force from time to time. The seat, or legal place, of arbitration shall be London, England.

(2) If any legal proceedings are commenced in a court by a third party against either the undertaker or WPD (the Defendant Contracting Party), the Defendant Contracting Party may seek to bring a claim in those proceedings against the other Party which would otherwise be a claim referable to arbitration by virtue of paragraph96(1) and the court in which legal proceedings has been commenced may determine such a claim between the undertaker and WPD provided that no arbitration has been commenced between the Parties prior to the commencement of legal proceedings involving the same or substantially the same issues raised by or involved in such a claim.