1.—(1) The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.E+W+S
(2) In this Part of this Schedule—
“the Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are construed accordingly;
“drainage work” for the purposes of this part means any watercourse and includes any land which 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, sea defence or tidal monitoring and any ancillary works constructed as a consequence of works carried out for drainage purposes;
“a main river” and “ordinary watercourse” have the meanings given by respectively the Water Resources Act 1991 and the Land Drainage Act 1991;
“plans” includes sections, drawings, specifications and method statements;
“realignment scheme” means the future realignment of the flood defences at Goxhill by the Agency;
“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 8 metres of a main river, or is otherwise likely to:
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any watercourse or other surface waters or groundwater; or
affect the conservation, distribution or use of water resources
Commencement Information
I1Sch. 10 Pt. 3 para. 1 in force at 15.9.2016, see art. 1
2.—(1) Before beginning to construct 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 submission of the plans reasonably require.E+W+S
(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 25.
(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 submission of further particulars if required by the Agency under sub-paragraph (1), 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 water resources for the prevention of 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).
Commencement Information
I2Sch. 10 Pt. 3 para. 2 in force at 15.9.2016, see art. 1
3. Without limiting the scope of paragraph 17, the requirements which 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, 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—E+W+S
(a)to safeguard any drainage work against damage; or
(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 any specified work.
Commencement Information
I3Sch. 10 Pt. 3 para. 3 in force at 15.9.2016, see art. 1
4.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 3, must be constructed—E+W+S
(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; 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 not later than seven days after the date on which it is brought into use.
(3) If the Agency shall reasonably require, the undertaker shall construct all or part of the protective works so that they are in place prior to the construction of specific works.
(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 of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the 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), if within a reasonable period, except in emergency, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing 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.
Commencement Information
I4Sch. 10 Pt. 3 para. 4 in force at 15.9.2016, see art. 1
5.—(1) Subject to sub-paragraph (5) 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 which is situated within the limits of deviation 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.E+W+S
(2) If any such drainage work which the relevant 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) If, within a reasonable period, except in emergency, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, 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) 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.
(5) This paragraph does not apply to drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not prescribed by the powers of the Order from doing so.
Commencement Information
I5Sch. 10 Pt. 3 para. 5 in force at 15.9.2016, see art. 1
6. 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 impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.E+W+S
Commencement Information
I6Sch. 10 Pt. 3 para. 6 in force at 15.9.2016, see art. 1
7.—(1) The undertaker must indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—E+W+S
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and
(c)the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.
(2) Without prejudice to the other provisions of this Part, the undertaker must indemnify the Agency from all claims, proceedings, costs, damages, expenses or loss which may be made or taken against, recovered from, or incurred by, the Agency by reason of the construction of any of the specified works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work.
(3) The undertaker shall not be liable under paragraph (2) to the limited extent that the liability is a result of negligence on the part of the Agency or its duly authorised representative, employee, contractor or agent.
(4) 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.
Commencement Information
I7Sch. 10 Pt. 3 para. 7 in force at 15.9.2016, see art. 1
8. 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 the provisions of this Part of this Schedule.E+W+S
Commencement Information
I8Sch. 10 Pt. 3 para. 8 in force at 15.9.2016, see art. 1
9.—(1) The undertaker will not in the exercise of any powers conferred by this Order interfere with the Agency’s access to or maintenance of any drainage work unless a suitable alternative access is provided prior to and for the duration of any such interference.E+W+S
(2) The undertaker must not exercise the power conferred by articles 15 (access to works), 27 (temporary use of land for carrying out the authorised project) and 28 (temporary use of land for maintaining the authorised project) so as to interfere with any drainage work unless the exercise of such powers is with the consent of the Agency and in accordance with paragraphs 17 to 24 of this Part.
Commencement Information
I9Sch. 10 Pt. 3 para. 9 in force at 15.9.2016, see art. 1
10. Any dispute arising between the undertaker and the Agency under this Part of this Schedule, is to be determined by arbitration under article 46 (arbitration).E+W+S
Commencement Information
I10Sch. 10 Pt. 3 para. 10 in force at 15.9.2016, see art. 1
11.—(1) Any specified work capable of interfering with or risking damage to any drainage work for flood defence must not commence until a scheme for monitoring ground subsidence (referred to in this paragraph as “the monitoring scheme”) has been submitted to and approved by the Agency, such approval not to be unreasonably withheld or delayed.E+W+S
(2) The monitoring scheme described in sub-paragraph (1) must set out—
(a)the drainage work which is to be subject to such monitoring;
(b)the extent of land to be monitored;
(c)the manner in which ground levels are to be monitored;
(d)the timescales of any monitoring activities; and
(e)the extent of ground subsidence which, if exceeded, will require the undertaker to submit for the Agency’s approval a ground subsidence mitigation scheme in respect of such subsidence in accordance with sub-paragraph (5).
(3) The Agency must give notice of its decision as to whether or not it approves the monitoring scheme within 21 days beginning with—
(a)where no further information is requested under sub-paragraph (4), the day immediately following that on which the application is received by the discharging authority; and
(b)where further information is requested under sub-paragraph (4), the day immediately following that on which further information has been supplied by the undertaker.
(4) Where an application has been made under sub-paragraph (1) the Agency may request such reasonable further information from the undertaker as it considers necessary to enable it to consider the application.
(5) As soon as reasonably practicable after any ground subsidence identified by the monitoring activities set out in the monitoring scheme has exceeded the level described in sub-paragraph (2)(e), a scheme setting out necessary mitigation measures (if any) for such ground subsidence (referred to in this paragraph as a “mitigation scheme”) must be submitted to the Agency for approval, such approval not to be unreasonably withheld or delayed; and any mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the Agency.
Commencement Information
I11Sch. 10 Pt. 3 para. 11 in force at 15.9.2016, see art. 1
12. Within the Order limits on the south bank of the estuary, from the crest of the flood defences to a point 750 metres landward (measured perpendicular to the flood defences) of the crest of the said defences, the pipeline shall be laid with a minimum cover of 1.7 metres above the pipeline.E+W+S
Commencement Information
I12Sch. 10 Pt. 3 para. 12 in force at 15.9.2016, see art. 1