The Millbrook Gas Fired Generating Station Order 2019

Article 3

SCHEDULE 1 E+W+S AUTHORISED DEVELOPMENT

Commencement Information

I1 Sch. 1 in force at 3.4.2019, see art. 1

In Central Bedfordshire—

A nationally significant infrastructure project as defined in sections 14(1)(a) and 15 of the 2008 Act, and associated development under section 115(1)(b) of that Act consisting of a generating station with a gross rated electrical output of up to 299MWe comprising all or part of—

Work No. 1A development comprising a generating station including—

(a) 1 gas turbine generator;

(b) 1 exhaust gas emission flue stack; and

(c) external fin fan cooler(s),

Work No. 1B development comprising a generating station and gas and electrical infrastructure including—

(a) a control room/office/workshop;

(b) telemetry apparatus;

(c) a fire water tank;

(d) a demineralised water storage tank;

(e) an emergency generator including fuel storage tank;

(f) gas pipeline and telemetry cabling and cathodic protection test/ transformer rectifier unit;

(g) a natural gas receiving station and gas treatment compound containing—

(i) a pipeline inspection gauge (PIG) receiving facility;

(ii) isolation valves, metering, heating, filtering, compression, pressure regulation equipment;

(iii) electricity supply kiosks;

(iv) emergency generator including fuel storage tank;

(v) Joule-Thomson boiler(s); and

(vi) control and instrumentation kiosks,

Work No. 1C development comprising a generating station and electrical infrastructure including a transformer compound, generator step up transformer, unit and other transformers, F1 ... overhead conductors and other plant and structures required to manage the transmission of electricity,

Textual Amendments

F1 Words in Sch. 1 omitted (9.4.2020) by virtue of The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 3(2)

Work No. 1D development comprising a generating station including—

(a) security infrastructure, including cameras, perimeter fencing and a gatehouse;

(b) site lighting infrastructure, including perimeter lighting columns;

(c) internal roadways, car parking, pedestrian network, cycle parking, hardstanding and water treatment trailers;

(d) a maintenance compound including hardstanding and welfare and administration facilities;

(e) site drainage and waste management infrastructure, including relocation of existing infrastructure as required;

(f) electricity, water, wastewater and telecommunications and other services including high voltage and low voltage cabling, equipment and controls and associated telemetry and electrical protection auxiliary cabling;

(g) landscaping including tree planting, temporary and permanent fencing and other boundary treatments and ecological mitigation; and

(h) other ancillary equipment.

Work No. 2A development comprising the creation of a junction with Green Lane, maintenance of an existing access road between Green Lane and Rookery South Pit, including permanent road surface and kerb stones, fencing, safety barrier(s), signing and road markings works, footway, drainage (including culverts), electricity and telecommunications connections and other services and other incidental works,

Work No. 2B development comprising a new means of access, including permanent road surface and kerb stones, safety barrier(s), signing and road markings works, footway, drainage (including culverts), electricity and telecommunications connections and other services and other incidental works,

Work No. 3A development comprising gas infrastructure including—

(a) an above ground installation (also referred to as a minimum offtake connection compound) containing—

(i) a minimum offtake connection comprising remotely operable valves, control and instrumentation kiosks and electrical supply kiosks;

(ii) a pipeline inspection gauge (PIG) facility, comprising a PIG launching facility, emergency control valves, isolation valves, control and instrumentation kiosks, and electricity supply kiosks;

(b) security infrastructure, including cameras, lighting (including perimeter lighting columns) and perimeter fencing;

(c) site drainage and waste management infrastructure;

(d) electricity and telecommunications connections and other services;

(e) below ground sacrificial anode pit; and

(f) landscaping including tree planting, temporary and permanent fencing and other boundary treatments and ecological mitigation,

Work No. 3B development comprising creation of a permanent access and a construction access from an existing agricultural track into numbered work 3A, upgrading of an existing agricultural track and junction between Houghton Lane and numbered work 3A, including permanent road surface and kerb stones, signing and road markings works, drainage (including culverts), electricity and telecommunications connections and other services and other incidental works,

Work No. 4A development comprising a gas pipeline including—

(a) a new underground gas pipeline connection and telemetry cabling, approximately 1.8km in length connecting Work No. 1B to Work No. 3A;

(b) pipeline field marker posts and cathodic protection test/ transformer rectifier unit;

(c) below ground drainage works;

(d) works required in order to protect existing utilities infrastructure;

(e) tree and hedge removal;

(f) landscaping including tree planting, temporary and permanent fencing and other boundary treatments and ecological mitigation; and

(g) creation of construction access from Houghton Lane,

Work No. 4B development comprising a construction laydown area including areas of hardstanding and site and welfare offices and workshop;

Work No. 5 [F2 development comprising electrical infrastructure between Work No. 1 and Work No. 6 including—

(a) underground high voltage electrical cables and associated telemetry and electrical protection auxiliary cabling;

(b) landscaping including tree planting, temporary fencing and other boundary treatments and ecological mitigation; and

(c) site drainage,]

Textual Amendments

F2 Words in Sch. 1 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 3(3)

Work No. 6 [F3 development comprising an electrical substation at transmission tower ZA378 and works to construct a 400kV electrical connection between transmission tower ZA378 and Work No. 5 and mitigation works for Works Nos. 1, 3, 6, and 7—

(a) 400kV electricity substation including site office and welfare accommodation, emergency auxiliary supplies and downleads to connect to existing tower ZA378;

(b) underground or ducted high voltage electrical cables and associated telemetry and electrical protection auxiliary cabling and below ground drainage works;

(c) security infrastructure including perimeter fencing with gates, security cameras, site lighting infrastructure, including perimeter lighting columns;

(d) permanent means of access from the low level restoration scheme secondary access to numbered work 6(a), taking the form of an agricultural hard-core track not more than 6 m wide and creation of permanent diversion of the low level restoration scheme secondary access;

(e) permanent means of access taking the form of an agricultural hard-core track not more than 6 m wide;

(f) landscaping including bunds, tree planting, temporary and permanent fencing and other boundary treatments and ecological mitigation;

(g) site drainage and waste management infrastructure, including the diversion of a watercourse;

(h) electricity and telecommunications connections and other services;

(i) internal roadways, car parking, pedestrian network and hardstanding for planning maintenance; and

(j) construction laydown area(s) including areas of hardstanding and site and welfare offices and workshops,]

Textual Amendments

F3 Words in Sch. 1 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 3(4)

Work No 7 [F4 development comprising works to transmission towers and mitigation works for Works Nos. 1, 3, 6 and 7 including—

(a) alterations of cross-arms on tower ZA378 to accommodate downleads to new substation;

(b) erection and later removal of scaffolding, re-stringing of conductors in the alignment of the existing 400kV transmission line;

(c) tree, hedge and fence removal;

(d) security infrastructure including temporary perimeter fencing with gates, security cameras and site lighting; and

(e) landscaping including tree planting, fencing and ecological mitigation,]

Textual Amendments

F4 Words in Sch. 1 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 3(5)

Work No. 8 development comprising a construction laydown area(s) including areas of hardstanding and site and welfare offices and workshops,

and such other buildings, structures, works or operations as may be necessary or expedient for the purposes of or in connection with the construction, operation and maintenance of the works in this Schedule but only within the Order limits and insofar as they are unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

Article 3

SCHEDULE 2 E+W+S REQUIREMENTS

Time limits E+W+S

1.  The authorised development must commence no later than the expiration of five years beginning with the date this Order comes in to force.

Commencement Information

I2 Sch. 2 para. 1 in force at 3.4.2019, see art. 1

Detailed design approval E+W+S

2.—(1) The authorised development must be carried out in accordance with the approved plans listed in Table 1 below, inclusive of any limits of deviation, and any other plans, drawings, documents, details, schemes, statements or strategies which are approved by the relevant planning authorities pursuant to any requirement (as the same may be amended by approval of the relevant planning authorities pursuant to requirement 19)—

Table 1

Works plans

Rights of way, streets and access plan

The access road visibility splay plan

(2) The authorised development must be carried out in accordance with the parameters specified below (as the same may be amended by approval of the relevant planning authorities pursuant to requirement 19)—

[F5 Table 2

Building or structure	Maximum height (metres above existing site level of approximately 31.5 metres AOD unless otherwise stated)	Minimum height (metres above existing site level of approximately 31.5 metres AOD unless otherwise stated)	Maximum length (metres)	Minimum length (metres)	Maximum width (metres)	Minimum width (metres)
The gas turbine generator (including gas turbine, generator, air inlet filter house, air inlet duct, exhaust diffuser, and auxiliaries such as lube oil system, air dryers, fuel gas filter package, instrument air system, compressor washing) (Part of numbered work 1A)	27	–	50	–	40	–
The exhaust gas emission flue stack (part of numbered work 1A)	35	32.5	12	–	12	–
Control room/office/ workshop (part of numbered work 1B)	7	–	45	–	25	–
Emergency generator (part of numbered work 1B)	6	–	13	–	5	–
Raw/fire water tank (part of numbered work 1B)	15	–	15	–	15	–
Demineralised water tank (part of numbered work 1B)	5	–	5	–	5	–
Gas receiving station (including compression station, emergency generator, Joule-Thompson boilers and other auxiliary control cabinets) (part of numbered work 1B)	10	–	70	–	50	–
Fin Fan Cooler(s) (part of numbered work 1A)	10	–	28	–	14	–
Transformer compound (including generator step up transformer, unit and other transformers, overhead line gantry and associated equipment) (part of numbered work 1C)	15	–	65	–	60	–
Gatehouse (part of numbered work 1D)	4.5	–	9	–	8	–
Above ground installation (numbered work 3A)*	3	–	85	–	35	–
Pipeline inspection gauge facility (part of numbered work 3A)*	3	–	35	–	30	–
Minimum offtake connection (part of numbered work 3A)*	3	–	35	–	35	–
Substation (including the auxiliary building) (part of numbered work 6)**	14	–	100	–	60	–

* Existing site level is approximately 70m AOD ** Existing site level is approximately 49m AOD]

(3) To the extent that design principles for any numbered work are set out in the design principles statement, that numbered work must be designed substantially in accordance with the relevant design principles set out therein.

(4) Except to the extent approved pursuant to requirement 5, numbered works 1, 3AF6 ... and 6(a) must not commence until, for that numbered work, details of the layout, scale and external appearance of the numbered work have been submitted to and approved by the relevant planning authorities.

Textual Amendments

F5 Sch. 2 para. 2 Table 2 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 4(2), Sch. 1

F6 Word in Sch. 2 para. 2(4) omitted (9.4.2020) by virtue of The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 4(3)

Commencement Information

I3 Sch. 2 para. 2 in force at 3.4.2019, see art. 1

Provision of landscaping and ecological mitigation E+W+S

3.  Each of numbered works 1, 2, 3A, 4, 5, 6 and 7 of the authorised development must not commence until, for that numbered work, a written strategy substantially in accordance with the outline landscape and ecological mitigation and management strategy has been submitted to and approved by Central Bedfordshire Council. The strategy must include details of all proposed hard and soft landscaping works and ecological mitigation measures and include details of—

(a) the location, number, species, size and planting density of any proposed planting including details of any proposed tree planting and the proposed times of such planting;

(b) cultivation, importing of materials and other operations to ensure plant establishment;

(c) bunds and proposed finished ground levels;

(d) hard surfacing materials;

(e) measures for the management of the ecological resources that will remain within the Order land on completion of the authorised development.

Commencement Information

I4 Sch. 2 para. 3 in force at 3.4.2019, see art. 1

Implementation and maintenance of landscaping and ecological mitigation measures E+W+S

4.—(1) All landscaping works and ecological mitigation measures must be carried out in accordance with the strategy approved under requirement 3.

(2) The landscaping works and ecological mitigation measures must be carried out in accordance with implementation timetables approved in the strategy approved under requirement 3.

Commencement Information

I5 Sch. 2 para. 4 in force at 3.4.2019, see art. 1

Highway accesses E+W+S

5.—(1) Numbered work 1 of the authorised development must not commence until either the Rookery South access road and numbered work 2B have been completed to a suitable standard for construction or the junction with Green Lane (comprising part of numbered work 2A) and numbered work 2B have been completed to a suitable standard for construction.

(2) Each of numbered works 2, 3 and 6 of the authorised development must not commence until for that numbered work, written details of the siting, design and layout (to the extent either not provided as part of or differing from, the details contained in Schedule 1, the works plans or Table 1 of requirement 2) of any new permanent or temporary means of access to a highway to be used by vehicular traffic, or any alteration to an existing means of access to a highway used by vehicular traffic has been submitted to and approved by the relevant planning authorities (in consultation with the highway authority).

(3) The highway accesses must be constructed in accordance with the approved details.

(4) Following the completion of construction of numbered work 2, unless the Rookery South access road is constructed pursuant to the Rookery South (Resource Recovery Facility) Order 2011, the access road visibility splay must be kept clear at all times of obstructions, buildings and vegetation that may obstruct or impair visibility from or to Green Lane to or from numbered work 2.

Commencement Information

I6 Sch. 2 para. 5 in force at 3.4.2019, see art. 1

Fencing and other means of site perimeter enclosure E+W+S

6.—(1) Each of numbered works 1, 3A, 4, 5, 6 and 7 of the authorised development must not commence until written details of all proposed permanent and temporary fences, walls or other means of enclosure for that numbered work have been submitted to and approved by Central Bedfordshire Council.

(2) Numbered work 2A of the authorised development must not commence until written details of any proposed permanent fence or other means of enclosure for that numbered work have been submitted to and approved by Central Bedfordshire Council (and approved by Network Rail in accordance with paragraph 68 of Schedule 10).

(3) Any construction sites must remain securely fenced at all times during construction of the authorised development.

(4) The fencing and other means of enclosure must be constructed and maintained in accordance with the approved details.

Commencement Information

I7 Sch. 2 para. 6 in force at 3.4.2019, see art. 1

Surface and foul water drainage E+W+S

7.—(1) Each of numbered works 1, 2, 3AF7 ... and 6 must not commence until, for that numbered work, written details of the surface and foul water drainage strategy, which shall incorporate appropriate elements of the low level restoration scheme drainage strategy where applicable, for the construction and operational phases of the authorised development have been submitted to and approved by Central Bedfordshire Council.

(2) The surface and foul water drainage system must be constructed in accordance with the approved details before the operational phase of that part of the authorised development commences.

Textual Amendments

F7 Word in Sch. 2 para. 7(1) omitted (9.4.2020) by virtue of The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 4(4)

Commencement Information

I8 Sch. 2 para. 7 in force at 3.4.2019, see art. 1

Contamination and groundwater E+W+S

8.—(1) Each of numbered works 1 to 8 must not commence until, for that numbered work, a scheme (which may be included in the construction environment management plan) to deal with the contamination of any land, including groundwater, which is likely to cause significant harm to persons or significant pollution of controlled waters or the environment and ground conditions relevant to foundation design and ground stability has been submitted to and approved in writing by Central Bedfordshire Council.

(2) The scheme must include an investigation and assessment report, prepared by a specialist consultant approved by Central Bedfordshire Council, to include groundwater baseline monitoring and assessment and to identify the extent of any contamination and the remedial measures to be taken to render the land fit for its intended purpose, together with a management plan which sets out long-term measures with respect to any contaminants remaining on the site.

(3) The scheme must include an investigation and assessment report to identify ground conditions and ground stability matters and must identify appropriate foundation design measures.

(4) Remediation must be carried out in accordance with the approved scheme.

(5) Foundation design measures must be carried out in accordance with the approved scheme.

Commencement Information

I9 Sch. 2 para. 8 in force at 3.4.2019, see art. 1

Archaeology E+W+S

9.—(1) Each of [F8 numbered works 3A, 4A and 6] of the authorised development must not commence until, for that numbered work, a written scheme of archaeological investigation has been submitted to and approved in writing by Central Bedfordshire Council. The submitted written scheme of archaeological investigation must include the following –

(a) provision to be made for a programme of excavation fieldwork and post-excavation assessment should significant archaeological remains be encountered, and where warranted post-excavation analysis;

(b) provision to be made for publication and dissemination of the results of any assessment made pursuant to sub-paragraph (a), including for public benefit and understanding, should the nature of the archaeology warrant it; and

(c) provision to be made for the deposition of the finds assemblage and the site archive.

(2) The archaeological investigation must be carried out in accordance with the approved scheme.

Textual Amendments

F8 Words in Sch. 2 para. 9(1) substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 4(5)

Commencement Information

I10 Sch. 2 para. 9 in force at 3.4.2019, see art. 1

Construction Environment Management Plan E+W+S

10.—(1) Each of numbered works 1 to 8 of the authorised development must not commence until a construction environment management plan covering that numbered work has been submitted to and approved by the relevant planning authorities. The final construction environment management plan must be substantially in accordance with the outline construction environment management plan and must include the following—

(a) the construction and phasing programme;

(b) liaison procedures to discuss and agree all relevant construction aspects with the relevant planning authorities;

(c) complaints procedures;

(d) nuisance management including measures to avoid or minimise the impacts of construction works (covering dust, lighting, noise and vibration);

(e) waste management;

(f) an assessment of the site specific risks to and mitigation measures designed to protect controlled waters (surface and groundwaters) including pollution incident control;

(g) procedure for crossing watercourses (by reference to best practice methods);

(h) landscape and visual impact mitigation (specifically the protection of trees and hedgerows to be retained in accordance with BS 5837: 2012 (or its updates) and a scheme to minimise visual intrusion of the construction works);

(i) security measures;

(j) measures for the maintenance of construction equipment;

(k) restoration of site following completion of construction; and

(l) liaison procedures with all other contractors working within Rookery Pit regarding programmed construction movements and processes.

(2) All construction works must be undertaken in accordance with the approved construction environment management plan.

Commencement Information

I11 Sch. 2 para. 10 in force at 3.4.2019, see art. 1

Construction traffic management plan E+W+S

11.—(1) Each of numbered works 1 to 8 of the authorised development must not commence until, for that numbered work, a construction traffic management plan has been submitted to and approved by the relevant planning authorities in consultation with the relevant highway authorities and Marston Moreteyne Parish Council (and approved by Network Rail in accordance with paragraph 70 of Schedule 10). The construction traffic management plan must be substantially in accordance with the outline construction traffic management measures and must include the following—

(a) construction vehicle routing plans;

(b) site access plans;

(c) measures to ensure the protection of users of any footpath within the Order limits which may be affected by the construction of the authorised development;

(d) proposals for the management of junctions to and crossings of highways and other public rights of way;

(e) proposals for the scheduling and timing of movements of heavy commercial vehicles (as defined in section 138 of the 1984 Act) relating to the construction of the authorised development including details of abnormal indivisible loads and, if applicable, taking into account the anticipated scheduling and timing of movements of any heavy commercial vehicles (as defined in section 138 of the 1984 Act) relating to the construction of the development authorised by the Rookery South (Resource Recovery Facility) Order 2011;

(f) details of escorts for abnormal indivisible loads;

(g) proposals for temporary warning signs and banksman and escort details;

(h) details of any temporary or permanent improvements to highways;

(i) proposals for traffic management controls (such as temporary signals), diversion routes and signage required during any of the activities, operations or works associated with the creation or upgrading of any permanent or temporary means of access pursuant to this Order;

(j) proposals for traffic management controls (such as temporary signals) to ensure the safe operation of Green Lane level crossing;

(k) proposals for signage at suitable intervals along the Rookery South access road or numbered work 2A (as appropriate) restricting the speed of vehicles using the Rookery South access road or numbered work 2A (as appropriate) in connection with the construction of the authorised development such speed limit to be no more than 15 miles per hour; and

(l) details of any amendments required by Network Rail pursuant to paragraph 70(4) of Part 7 of Schedule 10 (protective provisions) and an explanation of how such amendments have been taken into account.

(2) The construction traffic management plan must be implemented as approved.

Commencement Information

I12 Sch. 2 para. 11 in force at 3.4.2019, see art. 1

Control of noise during operation E+W+S

12.—(1) Prior to the date of final commissioning a written noise scheme providing for the control of noise generated during the operation of the authorised development must be submitted to and approved by Central Bedfordshire Council. The noise scheme must include the following:

(a) the locations at which noise will be monitored;

(b) the defined representative background sound level at South Pillinge Farm house;

(c) the method of noise measurement (which must be in accord with BS 4142:2014, an equivalent successor standard or other agreed noise measurement methodology appropriate to the circumstances) and when such measurements will be carried out; and

(d) a complaints procedure.

(2) Except in the case of an emergency, noise (in terms of the BS 4142:2014 rating level) emitted from the operation of the authorised development must be no greater than the defined representative background sound level as approved in the noise scheme submitted pursuant to sub-paragraph (1).

(3) The noise scheme must be carried out as approved.

Commencement Information

I13 Sch. 2 para. 12 in force at 3.4.2019, see art. 1

Control of noise during construction E+W+S

13.—(1) No part of the authorised development may commence until a written construction noise monitoring scheme providing for the monitoring of noise generated during the construction of the authorised development has been submitted to and approved in writing by Central Bedfordshire Council. The construction noise monitoring scheme must include the following:

(a) the locations at which the noise will be monitored;

(b) the frequency of noise monitoring corresponding to the construction programme and the change in plant, equipment and working practices likely to affect noise conditions during the construction programme;

(c) the defined representative background sound level at South Pillinge Farm house;

(d) the method of noise measurement and establishment of noise limits (which must be in accordance with BS 5228:2009, an equivalent successor standard or other agreed noise measurement methodology appropriate to the circumstances);

(e) a procedure for the periodic review of the construction noise monitoring scheme relating to the frequency of noise monitoring and the need for continued monitoring corresponding to the construction programme; and

(f) a complaints procedure.

(2) The construction noise monitoring scheme must be carried out as approved.

Commencement Information

I14 Sch. 2 para. 13 in force at 3.4.2019, see art. 1

Construction hours E+W+S

14.—(1) Subject to sub-paragraph (2) no construction work, or the delivery or removal of materials, may take place on any Sunday or public holiday and no construction work, or the delivery or removal of materials, may take place outside the hours of—

(a) 0700 and 1900 hours on weekdays; and

(b) 0700 and 1300 hours on Saturdays.

(2) Sub-paragraph (1) does not prevent construction works, or the delivery or removal of materials, being carried out on public holidays or outside the hours set out in sub-paragraph (1) with the prior written approval of Central Bedfordshire Council.

(3) Nothing in sub-paragraph (1) precludes a start-up period from 0630 to 0700 and a shut down period from 1900 to 1930 on weekdays (excluding public holidays) and start-up period from 0630 to 0700 and a shut down period from 1300 to 1330 on a Saturday.

Commencement Information

I15 Sch. 2 para. 14 in force at 3.4.2019, see art. 1

Lighting strategy E+W+S

15.—(1) Each of [F9 numbered works 1, 3A and 6] must not commence until a written scheme for the management and mitigation of artificial light emissions for that numbered work which is substantially in accordance with the outline lighting strategy has been submitted to and approved by Central Bedfordshire Council.

(2) The approved scheme for the management and mitigation of artificial light emissions must be implemented before and maintained during the operation of the relevant numbered work.

Textual Amendments

F9 Words in Sch. 2 para. 15(1) substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 4(6)

Commencement Information

I16 Sch. 2 para. 15 in force at 3.4.2019, see art. 1

Construction Travel Plan E+W+S

16.—(1) Each of numbered works 1 to 8 of the authorised development must not commence until, for that numbered work, a construction worker travel plan has been submitted to and approved by the relevant planning authorities. The construction worker travel plan must be substantially in accordance with the outline travel plan (other than the measures which relate to the operational phase).

(2) The construction worker travel plan must be carried out as approved.

Commencement Information

I17 Sch. 2 para. 16 in force at 3.4.2019, see art. 1

Operating hours E+W+S

17.  Subject to requirement 19, the undertaker is not permitted to operate the generating station comprised in the authorised development for a greater number of hours than that assessed in the environmental statement.

Commencement Information

I18 Sch. 2 para. 17 in force at 3.4.2019, see art. 1

Decommissioning strategy E+W+S

18.—(1) Subject to obtaining the necessary consents and unless otherwise agreed with Central Bedfordshire Council, within twenty four months of the Order land ceasing to be used for the purposes of electricity generation (either actively generating electricity or being available to generate electricity on a standby basis), a scheme for the demolition and removal of numbered work 1 must be submitted to Central Bedfordshire Council.

(2) The demolition and removal of numbered work 1 must be implemented in accordance with the approved scheme.

(3) On the one year anniversary of the Order land ceasing to be used for the purposes of electricity generation (either actively generating electricity or being available to generate electricity on a standby basis) the undertaker must notify Central Bedfordshire Council of the same.

Commencement Information

I19 Sch. 2 para. 18 in force at 3.4.2019, see art. 1

Amendments to approved details E+W+S

19.—(1) Subject to paragraph (2), with respect to the approved plans specified in requirement 2(1), the parameters specified in requirement 2(2), any details requiring compliance within any other requirement and any other plans, details or schemes which require approval by the relevant planning authorities pursuant to any other requirement (the “Approved Plans, Parameters, Details or Schemes”), the undertaker may submit to the relevant planning authorities for approval any amendments to the Approved Plans, Parameters, Details or Schemes and following any such approval by the relevant planning authorities the Approved Plans, Parameters, Details or Schemes is to be taken to include the amendments approved pursuant to this subparagraph.

(2) Approval under sub-paragraph (1) must not be given except where it has been demonstrated to the satisfaction of the relevant planning authorities that the subject-matter of the approval sought is unlikely to give rise to any materially new or materially different environmental effects in comparison with the authorised development as approved (as identified in the environmental statement).

Commencement Information

I20 Sch. 2 para. 19 in force at 3.4.2019, see art. 1

Low Level Restoration Scheme E+W+S

20.  No part of the authorised development may commence until the low level restoration scheme baseline works have been completed to the reasonable satisfaction of Central Bedfordshire Council.

Commencement Information

I21 Sch. 2 para. 20 in force at 3.4.2019, see art. 1

Air Safety E+W+S

21.  Numbered work 1A(b) of the authorised development must not commence until the following details have been submitted to the Defence Geographic Centre:

(a) the precise location of numbered work 1A(b);

(b) the date of commencement of construction of numbered work 1A(b);

(c) the anticipated date of completion of construction of numbered work 1A(b);

(d) the height above ground level of the tallest structure; and

(e) the maximum extension height of any construction equipment.

Commencement Information

I22 Sch. 2 para. 21 in force at 3.4.2019, see art. 1

Article 8

SCHEDULE 3 E+W+S STREETS SUBJECT TO PERMANENT AND TEMPORARY ALTERATION OF LAYOUT

PART 1 E+W+S PERMANENT ALTERATION OF LAYOUT

Commencement Information

I23 Sch. 3 Pt. 1 in force at 3.4.2019, see art. 1

[F10 Table 3

(1)Area	(2)Street subject to alteration of layout	(3)Description of alteration
Central Bedfordshire Council	Green Lane	Installation of signage and markings between the points marked A and B on the rights of way, streets and access plan to facilitate the construction and operation of numbered work 2.
Bedford Borough Council	Green Lane	Installation of signage and markings between the points marked A and B on the rights of way, streets and access plan to facilitate the construction and operation of numbered work 2.
Central Bedfordshire Council	Green Lane	Creation of new access comprising part of numbered work 2A including the lowering of the levels of the kerb between the points marked C and D on the rights of way, streets and access plan to provide permanent access to numbered work 1.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	Creation of new access comprising part of numbered work 2A including the lowering of the levels of the kerb between the points marked E and F on the rights of way, streets and access plan to provide permanent access to numbered work 1.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	Creation of new access comprising part of numbered work 2 between the points marked G and I on the rights of way, streets and access plan to provide permanent access to numbered work 1.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Upgrading the existing access comprising numbered work 3B between the points marked MM and NN on the rights of way, streets and access plan to provide permanent access to numbered work 3A.
Central Bedfordshire Council	Houghton Lane	Upgrading the existing access comprising numbered work 3B between the points marked OO and PP on the rights of way, streets and access plan to provide permanent access to numbered work 3A.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Creation of new access comprising part of numbered work 3B between the points marked QQ and RR on the rights of way, streets and access plan to provide permanent access to numbered work 3A.
Central Bedfordshire Council	low level restoration scheme secondary access track	Creation of new access comprising part of numbered work 6 within the area shown on the rights of way, streets and access plan with orange hatching to provide permanent access to numbered work 6(a).
Central Bedfordshire Council	Station Lane	Creation of new access comprising part of numbered work 6 between the points marked SS and TT on the rights of way, streets and access plan to provide permanent access to numbered work 6(a).]

Textual Amendments

F10 Sch. 3 Pt. 1 Table 3 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 5, Sch. 2

PART 2 E+W+S TEMPORARY ALTERATION OF LAYOUT

Commencement Information

I24 Sch. 3 Pt. 2 in force at 3.4.2019, see art. 1

Table 4

(1)Area	(2)Street subject to alteration of layout	(3)Description of alteration
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Creation of new access comprising part of numbered work 3B between the points marked RR and NN on the rights of way, streets and access plan to provide construction access to numbered work 3A.
Central Bedfordshire Council	Houghton Lane	Creation of new access comprising part of numbered work 4A between the points marked GG and HH on the rights of way, streets and access plan to provide construction access both north and south of Houghton Lane.

Article 9

SCHEDULE 4 E+W+S STREETS SUBJECT TO STREET WORKS

Commencement Information

I25 Sch. 4 in force at 3.4.2019, see art. 1

[F11 Table 5

(1)Area	(2)Street Subject to Street Works	(3)Description of the street works
Central Bedfordshire Council	Green Lane	Works to enable the creation of an access and to place and maintain apparatus (comprising numbered work 2A) for use during construction and operation between the points marked A and B and C and D on the rights of way, streets and access plan.
Bedford Borough Council	Green Lane	Works to enable the creation of an access and to place and maintain apparatus (comprising numbered work 2A) for use during construction and operation between the points marked A and B on the rights of way, streets and access plan.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	Works to enable the creation of an access and to place and maintain apparatus (comprising numbered work 2A) for use during construction and operation between the points marked E and F on the rights of way, streets and access plan.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	Works to maintain the existing access and to place and maintain apparatus (comprising numbered work 2A) for use during construction and operation between the points marked F and G on the rights of way, streets and access plan.
Central Bedfordshire Council	Established agricultural access tracks between South Pillinge Farm and Rookery South Pit	Works for numbered work 5 to be installed in the street between the points marked J and K on the rights of way, streets and access plan.
Central Bedfordshire Council	Established agricultural access tracks between South Pillinge Farm and Rookery South Pits	Works for numbered work 5 to be installed in the street between the points marked L and M on the rights of way, streets and access plan.
Central Bedfordshire Council	Public Footpath 65	Works for numbered work 4A to be installed in the street between the points marked O and P on the rights of way, streets and access plan.
Central Bedfordshire Council	Houghton Lane	Works for numbered work 4A to be installed under the street between the points marked GG and HH on the rights of way, streets and access plan.
Central Bedfordshire Council	Public Footpath 7	Works for numbered work 4A to be installed in the street between the points marked JJ and KK on the rights of way, streets and access plan.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Works to upgrade the existing access (comprising numbered work 3B) and to place and maintain apparatus for use during construction and operation and works for numbered work 4A to be installed in the street between the points marked MM and NN on the rights of way, streets and access plan.
Central Bedfordshire Council	Houghton Lane	Works to upgrade the existing junction (comprising numbered work 3B) for use during construction and operation between the points marked OO and PP on the rights of way, streets and access plan.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Works to enable the creation of an access (comprising numbered work 3B) for use during operation between the points marked QQ and RR on the rights of way, streets and access plan.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Works to enable the creation of an access (comprising numbered work 3B) for use during construction between the points marked RR and NN on the rights of way, streets and access plan.
Central Bedfordshire Council	low level restoration scheme secondary access track	Works for numbered work 4A to be installed in the street between the points marked BB and CC on the rights of way, streets and access plan.
Central Bedfordshire Council	low level restoration scheme secondary access track	Works for numbered work 4A to be installed in the street between the points marked CC and DD on the rights of way, streets and access plan.
Central Bedfordshire Council	low level restoration scheme secondary access track	Works to enable the creation of an access (comprising part of numbered work 6) within the area shown on the rights of way, streets and access plan with orange hatching to provide permanent accesses to numbered work 6(a).
Central Bedfordshire Council	Houghton Lane	Works to enable the creation of an access (comprising part of numbered work 4A) for use during construction between the points marked GG and HH on the rights of way, streets and access plan.
Central Bedfordshire Council	Station Lane	Works to enable the creation of an access (comprising part of numbered work 6) between the points marked SS and TT on the rights of way, streets and access plan to provide permanent accesses to numbered work 6(a).]

Textual Amendments

F11 Sch. 4 Table 5 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 6, Sch. 3

Article 10

SCHEDULE 5 E+W+S ACCESS

PART 1 E+W+S THOSE PARTS OF THE ACCESSES TO BE MAINTAINED AT THE PUBLIC EXPENSE

Commencement Information

I26 Sch. 5 Pt. 1 in force at 3.4.2019, see art. 1

Table 6

(1)Location	(2)Street	(3)Description of relevant part of access
Central Bedfordshire Council	Green Lane	The signage and markings installed in the area hatched blue between points A and B as shown on the rights of way, streets and access plan.
Bedford Borough Council	Green Lane	The signage and markings installed in the area hatched magenta between points A and B as shown on the rights of way, streets and access plan.
Central Bedfordshire Council	Houghton Lane	The upgraded access constituting part of numbered work 3B and shown on the rights of way, streets and access plan hatched blue between points OO and PP.

PART 2 E+W+S THOSE PARTS OF THE ACCESSES TO BE MAINTAINED BY THE STREET AUTHORITY

Commencement Information

I27 Sch. 5 Pt. 2 in force at 3.4.2019, see art. 1

[F12 Table 7

(1)Location	(2)Street	(3)Description of access
Central Bedfordshire Council	Green Lane	The access constituting part of numbered work 2A and shown on the rights of way, streets and access plan hatched red between points C and D.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	The access constituting part of numbered work 2A and shown on the rights of way, streets and access plan hatched red between points E and F.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	The access constituting part of numbered work 2A and shown on the rights of way, streets and access plan hatched red between points F and G.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits	The access constituting part of numbered work 2B and shown on the rights of way, streets and access plan hatched red between points G and I.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	The access constituting part of numbered work 3B and shown on the rights of way, streets and access plan hatched red between points MM and NN.
Central Bedfordshire Council	low level restoration scheme secondary access track and/or the new access track from Station Lane	The access to the substation constituting part of numbered work 6 to be provided within the area shown on the rights of way, streets and access plan hatched orange and/or coloured orange and hatched red.]

Textual Amendments

F12 Sch. 5 Pt. 2 Table 7 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 7, Sch. 4

PART 3 E+W+S THOSE WORKS TO RESTORE TEMPORARY ACCESSES WHICH WILL BE MAINTAINED BY THE STREET AUTHORITY

Commencement Information

I28 Sch. 5 Pt. 3 in force at 3.4.2019, see art. 1

Table 8

(1)Area	(2)Street subject to alteration of layout	(3)Description of alteration
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	The creation of a temporary access comprising part of numbered work 3B and shown on the rights of way, streets and access plan hatched red between points marked RR and NN to provide temporary access to numbered work 3A.
Central Bedfordshire Council	Houghton Lane	Creation of temporary access comprising part of numbered word 4A between the points marked GG and HH on the rights of way, streets and access plan to provide construction access both north and south of Houghton Lane.

Article 11

SCHEDULE 6 E+W+S TEMPORARY PROHIBITION OR RESTRICTION OF THE USE OF STREETS

Commencement Information

I29 Sch. 6 in force at 3.4.2019, see art. 1

[F13 Table 9

(1)Area	(2)Street subject to temporary prohibition or restriction of use	(3)Extent of temporary prohibition or restriction of use of streets
Central Bedfordshire Council	Green Lane	Prohibition/Restriction: From the points marked A to B on the rights of way, streets and access plan being approximately 250m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of part of the street and restriction of the use of the street (including the use of traffic management measures) in order to facilitate the construction of the authorised development.
Bedfordshire Borough Council	Green Lane	Prohibition/Restriction: From the points marked A to B on the rights of way, streets and access plan being approximately 250m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of part of the street and restriction of the use of the street (including the use of traffic management measures) in order to facilitate the construction of the authorised development).
Central Bedfordshire Council	Access Road serving Rookery North and South Pits including footpath(s)	Prohibition/Restriction: From the points marked E to F on the rights of way, streets and access plan being approximately 33m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of part of the street and partial restriction of the use of the street (including the use of traffic management measures) in order to facilitate the construction of the authorised development.
Central Bedfordshire Council	Access Road serving Rookery North and South Pits including footpath(s)	Prohibition/Restriction: From the points marked F to G on the rights of way, streets and access plan being approximately 844m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of part of the street and partial restriction of the use of the street (including the use of traffic management measures) in order to facilitate the construction of the authorised development.
Central Bedfordshire Council	Established agricultural access tracks between South Pillinge Farm and Rookery South Pit	Prohibition/Restriction: From the points marked J to K on the rights of way, streets and access plan being approximately 132m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate the construction of numbered works 5, 6 and 7.
Central Bedfordshire Council	Established agricultural access tracks between South Pillinge Farm and Rookery South Pit	Prohibition/Restriction: From the points marked L to M on the rights of way, streets and access plan being approximately 100m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate the construction of numbered works 5, 6 and 7.
Central Bedfordshire Council	Public Footpath 65	Prohibition/Restriction: From the points marked N to O on the rights of way, streets and access plan being approximately 10m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Public Footpath 65	Prohibition/Restriction: From the points marked O to P on the rights of way, streets and access plan being approximately 30m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Public Footpath 65	Prohibition/Restriction: From the points marked P to Q on the rights of way, streets and access plan being approximately 10m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Layby on Station Road	Prohibition/Restriction: From the points marked R to S on the rights of way, streets and access plan being approximately 25m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate numbered work 7(b).
Central Bedfordshire Council	Station Lane	Prohibition/Restriction: From the points marked T to U on the rights of way, streets and access plan being approximately 195m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction of the use of the street (including the use of traffic management measures) in order to facilitate numbered work 7(b).
Central Bedfordshire Council	Station Lane	Prohibition/Restriction: From the points marked SS to TT on the rights of way, streets and access plan being approximately 31.64 m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction of the use of the street (including the use of traffic management measures) in order to facilitate the construction of numbered work 6.
Central Bedfordshire Council	Public Footpath 7 and low level restoration scheme secondary access track	Prohibition/Restriction: From the points marked V to W on the rights of way, streets and access plan being approximately 20 m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and public footpath and restriction of the use of the street and public footpath in order to facilitate numbered work 7(b) and the construction of numbered work 6.
Central Bedfordshire Council	Public Footpath 14	Prohibition/Restriction: From the points marked X to Y on the rights of way, streets and access plan being approximately 168m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate numbered work 7 and the construction of numbered work 6.
Central Bedfordshire Council	low level restoration scheme secondary access track	Prohibition/Restriction: From the points marked BB to DD on the rights of way, streets and access plan being approximately 260m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the track and restriction of the use of the track (including the use of traffic management measures) in order to facilitate the construction of the authorised development.
Central Bedfordshire Council	Established agricultural access track adjacent to plantation leading from Station Lane	Prohibition/Restriction: From the points marked EE to FF on the rights of way, streets and access plan being approximately 140m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate the construction of numbered works 6 and 7.
Central Bedfordshire Council	Houghton Lane	Prohibition/Restriction: From the points marked GG to HH on the rights of way, streets and access plan being approximately 30m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Public Footpath 7	Prohibition/Restriction: From the points marked II to JJ on the rights of way, streets and access plan being approximately 32m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Public Footpath 7	Prohibition/Restriction: From the points marked JJ to KK on the rights of way, streets and access plan being approximately 35m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Public Footpath 7	Prohibition/Restriction: From the points marked KK to LL on the rights of way, streets and access plan being approximately 12m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the public footpath and restriction of the use of the public footpath in order to facilitate the construction of numbered work 4A.
Central Bedfordshire Council	Access track leading from Houghton Lane to Park Farm	Prohibition/Restriction: From the points marked MM to NN on the rights of way, streets and access plan being approximately 155m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street in order to facilitate the construction of numbered work 3 and numbered work 4
Central Bedfordshire Council	Houghton Lane	Prohibition/Restriction: From the points marked OO to PP on the rights of way, streets and access plan being approximately 25m.
		Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction on the use of the street (including the use of traffic management measures) in order to facilitate the construction of numbered work 3.]

Textual Amendments

F13 Sch. 6 Table 9 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 8, Sch. 5

Article 12

SCHEDULE 7 E+W+S STREETS TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

Commencement Information

I30 Sch. 7 in force at 3.4.2019, see art. 1

(1) Area	(2) Street to be stopped up	(3) Extent of stopping up	(4) New street to be substituted
Central Bedfordshire Council	low level restoration scheme secondary access track	From the points marked Z to AA on the rights of way, streets and access plan being approximately 110m.	Commencing at point Z and finishing at point AA using a route within the area marked with orange hatching on the rights of way, streets and access plan.

Article 21

SCHEDULE 8 E+W+S MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF NEW RESTRICTIONS

Compensation enactments E+W+S

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land. E+W+S

Commencement Information

I31 Sch. 8 para. 1 in force at 3.4.2019, see art. 1

2.—(1) Without limitation to the scope of paragraph 1, the Land Compensation Act 1973 M1 has effect subject to the modifications set out in sub-paragraph (2). E+W+S

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 5(3)—

(a) for the words “land is acquired or taken” there are substituted the words “ a right or restrictive covenant over land is purchased from or imposed on ”; and

(b) for the words “acquired or taken from him” there are substituted the words “ over which the right is exercisable or the restrictive covenant enforceable ”.

Commencement Information

I32 Sch. 8 para. 2 in force at 3.4.2019, see art. 1

Marginal Citations

M1 1973 c.26.

3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1961 has effect subject to the modification set out in sub-paragraph (2) . E+W+S

(2) For section 5A (5A) (relevant valuation date) of the 1961 Act, for (a) and (b) substitute—

“(a) the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 8 to the Millbrook Gas Fired Generating Station Order 2019; and

(b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 8 to the Millbrook Gas Fired Generating Station Order 2019 to acquire an interest in the land, and

(c) the acquiring authority enters on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land where it entered on that land for the purpose of exercising that right.”

Commencement Information

I33 Sch. 8 para. 3 in force at 3.4.2019, see art. 1

Application of Part 1 of the 1965 Act E+W+S

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 25 (modification of Part 1 of the Compulsory Purchase Act 1965)) to the acquisition of land under article 18 (compulsory acquisition of land etc.), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 21 (compulsory acquisition of rights)— E+W+S

(a) with the modification specified in paragraph 5; and

(b) with such other modifications as may be necessary.

Commencement Information

I34 Sch. 8 para. 4 in force at 3.4.2019, see art. 1

5.—(1) The modifications referred to in paragraph 4(a) are as follows. E+W+S

(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or

(b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.

(3) For section 7 of the 1965 Act (measure of compensation in case of severance) there is substituted the following section—

In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a) section 9(4) (failure by owners to convey);

(b) paragraph 10(3) of Schedule 1 (owners under incapacity);

(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

(5) Section 11 (powers of entry) of the 1965 Act is modified as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 18 (compulsory acquisition of land), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A M2 (powers of entry: further notices of entry), 11B M3 (counter-notice requiring possession to be taken on a specified date), 12 M4 (penalty for unauthorised entry) and 13 M5 (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

(6) Section 20 M6 of the 1965 Act (protection for interests of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 25(3) (modification of Part 1 of the Compulsory Purchase Act 1965) is also modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

(8) For schedule 2A to the 1965 Act substitute—

“SCHEDULE 2A

COUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction

1.— (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 23 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) of the Millbrook Gas Fired Generating Station Order 2019 in respect of the land to which the notice to treat relates.

(2) But see article 24(3) (acquisition of subsoil only) of the Millbrook Gas Fired Generating Station Order 2019 which excludes the acquisition of subsoil only from this Schedule.

2.   In this Schedule, “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3.   A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory.

4.   A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

5.   On receiving a counter-notice, the acquiring authority must decide whether to—

(a) withdraw the notice to treat,

(b) accept the counter-notice, or

(c) refer the counter-notice to the Upper Tribunal.

6.   The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.   If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.

8.   If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period.

9.   If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory.

Determination by Upper Tribunal

10.   On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—

(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.   In making its determination, the Upper Tribunal must take into account—

(a) the effect of the acquisition of the right or the imposition of the covenant,

(b) the use to be made of the right or covenant proposed to be acquired or imposed, and

(c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.   If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take.

13.   If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land.

14.— (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”

Commencement Information

I35 Sch. 8 para. 5 in force at 3.4.2019, see art. 1

Marginal Citations

M2 Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).

M3 Section 11B was inserted by section 187(2) of the Housing and Planning Act 2016 (c. 22).

M4 Section 12 was amended by section 56(2) of and part 1 of Schedule 9 to, the Courts Act 1971 (c. 23).

M5 Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

M6 Section 20 was amended by paragraph 4 of Schedule 15 to the Planning and Compensation Act 1991 and S.I. 2009/1307.

Article 27

SCHEDULE 9 E+W+S LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Commencement Information

I36 Sch. 9 in force at 3.4.2019, see art. 1

Table 10

(1) Location	(2) Number of land shown on land plans	(3) Purpose for which temporary possession may be taken	(4) Relevant part of the authorised development
Land forming part of disused clay pit (Rookery Pit) situated to the south of Green Lane and east of South Pillinge Farm, Millbrook	1A_PGP	Temporary use (including the installation and use of site office and welfare facilities) to facilitate numbered work 8	Numbered work 8
Land forming part of disused clay pit (Rookery Pit) situated to the south of Green Lane and north east of South Pillinge Farm, Millbrook	1B_PGP	Temporary use (including the installation and use of site office and welfare facilities) to facilitate numbered work 8	Numbered work 8
Land forming part of disused clay pit (Rookery Pit) situated to the south of Green Lane and north east of South Pillinge Farm, Millbrook	5A_PGP	Temporary use to facilitate construction for numbered work 2A	Numbered work 2A
Land and access track situated to the west of premises known as Moreteyne House and south of Station Lane crossing, Millbrook	1_EC	Temporary use to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of electricity compound overhead transmission lines and pylon situated to the south of premises known as Moreteyne House, Millbrook	2_EC	Temporary use (including the installation and use of a cable winch and the oversailing for the temporary diversion of the existing 400kV transmission line) to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of Millbrook Vehicle Proving Ground and electricity transmission lines situated south of premises known as Moreteyne House, Millbrook, Millbrook	3_EC	Temporary use (including the erection and use of scaffolding, the installation and use of a cable winch and the oversailing for the temporary diversion of the existing 400kV transmission line) to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of public adopted highway known as Statin Lane, part lay-by and overhead electricity transmission lines situated to the east of the Millbrook Vehicle Proving Ground and south of Pillinge Cottages, Millbrook	4_EC	Temporary use (including the erection and use of scaffolding, the installation and use of a cable winch and the oversailing for the temporary diversion of the existing 400kV transmission line) to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of agricultural land and overhead electricity transmission lines and pylon situated to the east of Station Lane and south of South Pillinge Farm, Millbrook	5_EC	Temporary use (including the erection and use of scaffolding, the installation and use of a cable winch and the oversailing for the temporary diversion of the existing 400kV transmission line) to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of disused clay pit (Rookery Pit) situated to the east of South Pillinge Farm, Millbrook	10_EC	Temporary use to facilitate construction for numbered works 5 and 6	Part of numbered works 5 and 6
Land forming part of disused clay pit (Rookery Pit) and overhead electricity transmission lines and access track situated to the east of South Pillinge Farm, Millbrook	11_EC	Temporary use (including the erection and use of scaffolding, the installation and use of a cable winch, the oversailing for the temporary diversion of the existing 400kV transmission line and the passing and re-passing of users of public footpaths) to facilitate construction for numbered works 6 and 7	Part of numbered work 6 and 7
Land forming part of agricultural land, part of public footpath 14, overhead electricity transmission lines and pylon situated to the east of Station Lane, Millbrook	13_EC	Temporary use (including the installation and use of a cable winch, the oversailing for the temporary diversion of the existing 400kV transmission line and the passing and re-passing of users of public footpaths) to facilitate construction for numbered works 6 and 7	Part of numbered work 6 and 7
Land forming part of agricultural land, CLH pipeline system, overhead electricity transmission lines and pylon situated to the north east of Station Lane, Millbrook	14_EC	Temporary use (including the installation and use of a cable winch and the oversailing for the temporary diversion of the existing 400kV transmission line) to facilitate construction for numbered works 6 and 7	Part of numbered works 6 and 7
Land forming part of disused pit (Rookery Pit), tracks, woodland and part of public footpath 15 situated to the west of Midland Main Line Railway north of public footpath 15, Millbrook	1A_GC	Temporary use (including the passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of disused pit (Rookery Pit), tracks, woodland and part of public footpath 15 situated to the west of Midland Main Line Railway north of public footpath 15, Millbrook	1B_GC	Temporary use (including the passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of agricultural land, overhead electricity transmission lines and CLH pipeline system situated to the north east of Lower Farm, Millbrook	7A_GC	Temporary use (including installation and use of welfare facilities, use as a construction compound and passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of agricultural land, overhead electricity transmission lines and CLH pipeline system situated to the north east of Lower Farm, Millbrook	7B_GC	Temporary use (including installation and use of welfare facilities, use as a construction compound and passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of agricultural land and part of public footpath 7 situated to the north east of Lower Farm, Millbrook	9A_GC	Temporary use (including the installation and use of welfare facilities and passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of agricultural land and part of public footpath 7 situated to the north east of Lower Farm, Millbrook	9B_GC	Temporary use (including the installation and use of welfare facilities and passing and re-passing of users of public footpaths) to facilitate construction for numbered work 4A	Part of numbered work 4A
Land forming part of access track situated to the east of Lower Farm, Millbrook	9C_GC	Temporary use to facilitate construction for numbered works 3 and 4	Part of numbered works 3 and 4
Land forming part of agricultural land situated to the south east of Lower Farm, Millbrook	12A_GC	Temporary use (including the installation and use of site office and welfare facilities) to facilitate construction for numbered works 3 and 4	Part of numbered works 3 and 4
Land forming part of agricultural land situated to the south east of Lower Farm, Millbrook	12B_GC	Temporary use (including the installation and use of site office and welfare facilities) to facilitate construction for numbered works 3 and 4	Part of numbered works 3 and 4

Article 36

SCHEDULE 10 E+W+S PROTECTIVE PROVISIONS

PART 1 E+W+S FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

1.  For the protection of the utility undertakers referred to in this part of this Schedule (save for National Grid Electricity and National Grid Gas which are protected by Part 3 of this Schedule, EPN which is protected by Part 4 of this Schedule, Anglian Water which is protected by Part 5 of this Schedule and Covanta which is protected by Part 7 of this Schedule), the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertakers concerned. E+W+S

Commencement Information

I37 Sch. 10 para. 1 in force at 3.4.2019, see art. 1

2.  In this part of this Schedule— E+W+S

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

“apparatus” means—

(a)

in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989 M7 ), belonging to or maintained by that utility undertaker;

(b)

in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;

(c)

in the case of a water undertaker—

(i)

mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; and

(ii)

any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991 M8 );

(d)

in the case of a sewerage undertaker—

(i)

any drain or works vested in the utility undertaker under the Water Industry Act 1991; and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act M9 or an agreement to adopt made under section 104 of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) 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 includes any structure in which apparatus is or is to 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; and

“utility undertaker” means—

(e)

any licence holder within the meaning of Part 1 (electricity supply) of the Electricity Act 1989;

(f)

a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986 M10 ;

(g)

a water undertaker within the meaning of the Water Industry Act 1991; and

(h)

a sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,

for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

Commencement Information

I38 Sch. 10 para. 2 in force at 3.4.2019, see art. 1

Marginal Citations

M7 1989 c.29.

M8 1991 c.56. Section 51A to the 1991 Act was inserted by section 92(1) of the Water Act 2003(c.37) and amended by sections 10(2)(a), 10(2)(b) and 10(2)(c) of the Water Act 2014 (c.21).

M9 1991 c.56. Section 102(4) was amended by sections 96(1)(a), 96(1)(b), 96(1)(c), 96(1)(d) and 96(1)(e) of the Water Act 2003 c.37 and paragraph 90 of Schedule 7 to the Water Act 2014 c.21.

M10 1986 c.44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c.45), and was further amended by section 76 of the Utilities Act 2000 (c.27), Section 48 was amended by paragraph 2(1) of Schedule 6 to the Utilities Act 2000(c.27).

3.  This part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act. E+W+S

Commencement Information

I39 Sch. 10 para. 3 in force at 3.4.2019, see art. 1

4.  Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 11 (temporary prohibition or restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such street and 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. E+W+S

Commencement Information

I40 Sch. 10 para. 4 in force at 3.4.2019, see art. 1

5.  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. E+W+S

Commencement Information

I41 Sch. 10 para. 5 in force at 3.4.2019, see art. 1

6.—(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 the utility undertaker's apparatus is relocated or diverted, that apparatus must not be removed under this part of this Schedule, and any right of a utility undertaker 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 the utility undertaker in question in accordance with sub-paragraphs (2) to (7). E+W+S

(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 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 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 the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (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 41 (arbitration), 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 of this Schedule.

(6) Regardless of anything in 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 controlled by 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.

Commencement Information

I42 Sch. 10 para. 6 in force at 3.4.2019, see art. 1

7.—(1) Where, in accordance with the provisions of this part of this Schedule, 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 upon 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 41 (arbitration). E+W+S

(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 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 that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Commencement Information

I43 Sch. 10 para. 7 in force at 3.4.2019, see art. 1

8.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph (3), the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed. E+W+S

(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 those 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 date 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 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(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.

Commencement Information

I44 Sch. 10 para. 8 in force at 3.4.2019, see art. 1

9.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2). E+W+S

(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this part of this Schedule—

(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 41 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this part of this Schedule 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) is to 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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 6(2); 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) 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, is to be reduced by the amount which represents that benefit.

Commencement Information

I45 Sch. 10 para. 9 in force at 3.4.2019, see art. 1

10.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 6(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, or in the supply of any goods, by any utility undertaker, the undertaker must— E+W+S

(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and

(b) make reasonable compensation to that 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 such claim or demand and no settlement or compromise is to 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.

Commencement Information

I46 Sch. 10 para. 10 in force at 3.4.2019, see art. 1

11.  Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaking in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W+S

Commencement Information

I47 Sch. 10 para. 11 in force at 3.4.2019, see art. 1

PART 2 E+W+S FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

12.—(1) For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator. E+W+S

(2) In this part of this Schedule—

“the 2003 Act” means the Communications Act 2003 M11 ;

“electronic communications apparatus” has the same meaning as set out in paragraph 5 (electronic communications apparatus, lines and structures) of the electronic communications code;

“the electronic communications code” has the same meaning as set out in sections 106 to 119 (electronic communications code) and Schedule 3A (the electronic communications code) of the 2003 Act M12 ;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 (infrastructure system) of that code;

“network” means—

(a)

so much of a network or infrastructure system provided by an operator as is not excluded from the application of the electronic communications code by a direction under section 106(5) (application of the electronic communications code) of the 2003 Act; and

(b)

a network which the Secretary of State is providing or proposing to provide;

“operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act and who is an operator of a network.

Commencement Information

I48 Sch. 10 para. 12 in force at 3.4.2019, see art. 1

Marginal Citations

M11 2003 c.21.as amended by the Digital Economy Act 2017 (c.30)

M12 added by Schedule 1 of the Digital Economy Act 2017 (c.30)

13.  The exercise of the powers of article 29 (statutory undertakers) is subject to Part 10 (undertaker's works affecting electronic communications apparatus) of Schedule 3A of the 2003 Act. E+W+S

Commencement Information

I49 Sch. 10 para. 13 in force at 3.4.2019, see art. 1

14.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works— E+W+S

(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 those works), 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 bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, 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 an operator, its officers, servants, contractors or agents.

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to 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.

(4) Any difference arising between the undertaker and the operator under this part of this Schedule must be referred to and settled by arbitration under article 41 (arbitration).

Commencement Information

I50 Sch. 10 para. 14 in force at 3.4.2019, see art. 1

15.  This part of this Schedule does not apply to— E+W+S

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) 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 development.

Commencement Information

I51 Sch. 10 para. 15 in force at 3.4.2019, see art. 1

16.  Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W+S

Commencement Information

I52 Sch. 10 para. 16 in force at 3.4.2019, see art. 1

PART 3 E+W+S FOR THE PROTECTION OF NATIONAL GRID

Application E+W+S

17.  For the protection of National Grid as referred to in this part of this Schedule the following provisions shall, unless otherwise agreed in writing between the undertaker and National Grid, have effect.

Commencement Information

I53 Sch. 10 para. 17 in force at 3.4.2019, see art. 1

Interpretation E+W+S

18.  In this Part of this Schedule—

“alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means

(a)

electric lines or electrical plant as defined in the Electricity Act 1989 M13 , belonging to or maintained by National Grid;

(b)

mains, pipes or other apparatus belonging to or maintained by National Grid for the purposes of gas supply;

“authorised development” has the same meaning as in article 2 (interpretation) of this Order and (unless otherwise specified) for the purposes of this Schedule shall include the use and maintenance of the authorised development;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, shall require the promoter to submit for the undertaker's approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

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

“National Grid” means either—

(a)

National Grid Electricity Transmission PLC (Company No. 2366977) whose registered office is at 1-3 Strand, London, WC2N 5EH; or

(b)

National Grid Gas PLC (Company No. 200600) whose registered office is at 1-3 Strand, London, WC2N 5EH,

as the context shall require.

Commencement Information

I54 Sch. 10 para. 18 in force at 3.4.2019, see art. 1

Marginal Citations

M13 1989 c.29.

19.  Except for paragraphs (20) (apparatus in streets subject to temporary prohibition or restriction), (24) (retained apparatus: protection of National Grid as Gas Undertaker), (25) (retained apparatus: protection of National Grid as Electricity Undertaker), (26) (expenses) and (27) (indemnity) this Schedule does not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act. E+W+S

Commencement Information

I55 Sch. 10 para. 19 in force at 3.4.2019, see art. 1

Apparatus of National Grid in streets subject to temporary prohibition or restriction E+W+S

20.—(1) Without prejudice to the generality of any other protection afforded to National Grid elsewhere in the Order, where any street is stopped up under article 12 (stopping up of streets), if National Grid has any apparatus in the street or accessed via that street National Grid will be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the promoter will grant to National Grid, or will procure the granting to the National Grid of, legal easements reasonably satisfactory to the specified undertaker in respect of such apparatus and access to it prior to the stopping up of any such street or highway.

(2) Notwithstanding the temporary prohibition or restriction under the powers of article 11 (temporary prohibition or restriction of use of streets), National Grid 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.

Commencement Information

I56 Sch. 10 para. 20 in force at 3.4.2019, see art. 1

Acquisition of land E+W+S

21.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order the undertaker must not acquire any land interest or apparatus or override any easement or other interest of National Grid otherwise than by agreement (such agreement not to be unreasonably withheld).

(2) The undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Schedule relating to the relocation and/or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid as of right or other use in relation to the apparatus then the provisions in this Schedule shall prevail.

(3) Any agreement or consent granted by National Grid under paragraph 24 (retained apparatus: protection of National Grid as Gas Undertaker) or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph 21(1).

Commencement Information

I57 Sch. 10 para. 21 in force at 3.4.2019, see art. 1

Removal of apparatus E+W+S

22.—(1) If, in the exercise of the agreement reached in accordance with paragraph 21 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this part of this Schedule and any right of National Grid to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works comprised in the authorised development in, on, under or over 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 National Grid 56 days' advance written notice of that requirement, together with a plan 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 National Grid reasonably needs to remove any of its apparatus) the undertaker shall, subject to sub-paragraph (3), afford to National Grid to their satisfaction (taking into account paragraph 23(1) below) the necessary facilities and rights for—

(a) the construction of alternative apparatus in other land of the undertaker; and

(b) 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, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.

(4) Any alternative apparatus to be constructed in land of the undertaker under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to National Grid 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.

Commencement Information

I58 Sch. 10 para. 22 in force at 3.4.2019, see art. 1

Facilities and rights for alternative apparatus E+W+S

23.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to National Grid 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 shall be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid under sub-paragraph (1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid 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 in the matter shall be referred to arbitration under paragraph 31 and, the arbitrator shall make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph (2), article 41 (arbitration) of the Order shall apply.

Commencement Information

I59 Sch. 10 para. 23 in force at 3.4.2019, see art. 1

Retained apparatus: protection of National Grid as Gas Undertaker E+W+S

24.—(1) Not less than 56 days before the commencement of any authorised development authorised by this Order that involves activities or works specified in National Grid's “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22” that are within the proximities described therein to any apparatus the removal of which has not been required by the undertaker under paragraph 22(2) or otherwise, the undertaker must submit to National Grid a plan.

(2) In relation to works which will be situated on, over, under or within 15 metres measured in any direction of any apparatus to which sub-paragraph (1) applies, or (wherever situated) impose any load directly upon any such apparatus or involve embankment works within 15 metres of any such apparatus, the plan to be submitted to National Grid under sub-paragraph (1) shall show—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;

(d) the position of all apparatus;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

(f) intended maintenance regimes; and

(g) details of any ground monitoring scheme (if required in accordance with National Grid's “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22”.)

(3) The undertaker must not commence any works to which sub-paragraph (1) and (2) applies until National Grid has given written approval of the plan so submitted.

(4) Any approval of National Grid required under sub-paragraph (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7);

(b) must not be unreasonably withheld.

(5) In relation to a work to which sub-paragraphs (1) and (2) applies, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works executed under sub-paragraphs (1) or (2) shall be executed only in accordance with the plan, submitted under sub-paragraph (1) and (2) or as relevant sub paragraph (4), as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (7) and/or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid shall be entitled to watch and inspect the execution of those works.

(7) Where National Grid requires protective works to be carried out either themselves or by the undertaker (whether of a temporary or permanent nature) such protective works shall be carried out to National Grid's satisfaction prior to the commencement of any authorised development (or any relevant part thereof) to which sub-paragraph (1) applies and National Grid must give 56 days' notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (2) (except in an emergency).

(8) If National Grid in accordance with sub-paragraph (5) or (7) 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 (17) to (19) and (22) to (23) shall apply as if the removal of the apparatus had been required by the undertaker under paragraph 22(2).

(9) Nothing in this paragraph shall preclude 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 comprising the authorised development, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(10) The undertaker shall not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and shall—

(a) comply with sub-paragraph (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order comply with National Grid's policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22” and the Health and Safety Executive's “HS(~G)47 Avoiding Danger from underground services”.

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 26.

(13) The plans submitted to National Grid by the undertaker pursuant to paragraph 24(1) and/or paragraph 25(1) must be sent to Spencer Jefferies at [e-mail] or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Commencement Information

I60 Sch. 10 para. 24 in force at 3.4.2019, see art. 1

Retained apparatus: protection of National Grid as Electricity Undertaker E+W+S

25.—(1) Not less than 56 days before the commencement of any authorised development under this Order that is near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 22(2) or otherwise and to which sub-paragraph (2)(i) or (2)(ii) applies, the undertaker must submit to National Grid a plan and seek from National Grid details of the underground extent of their electricity tower foundations.

(2) In relation to works which will or may be situated on, over, under or within (i) 15 metres measured in any direction of any apparatus, or (ii) involve embankment works within 15 metres of any apparatus, the plan to be submitted under sub-paragraph (1) shall show—

(a) the exact position of the works;

(b) the level at which these are proposed to be constructed or renewed;

(c) the manner of their construction or renewal including details of excavation, positioning of plant;

(d) the position of all apparatus;

(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

(f) any intended maintenance regimes; and

(g) an assessment of risks of rise of earth issues.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) shall be detailed including a method statement and describing in addition to the matters set out in sub-paragraph (2)—

(a) details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b) demonstration that pylon foundations will not be affected prior to, during and post construction;

(c) details of load bearing capacities of trenches;

(d) details of cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e) a written management plan for high voltage hazard during construction and on-going maintenance of the cable route;

(f) (written details of the operations and maintenance regime for the cable, including frequency and method of access;

(g) assessment of earth rise potential if reasonably required by National Grid's engineers;

(h) evidence that trench bearing capacity is to be designed to 26 tonnes to take the weight of overhead line construction traffic.

(4) The undertaker must not commence any works to which sub-paragraphs (1), (2) or (3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraph (1), (2) or (3)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (6) or (8);

(b) must not be unreasonably withheld.

(6) In relation to a work to which sub-paragraphs (1), (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works executed under sub-paragraphs (1), (2) or (3) must be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraphs (2), (3) or (6), as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (6), (8) and/or (9) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid shall be entitled to watch and inspect the execution of those works.

(8) Where National Grid require any protective works to be carried out either themselves or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to National Grid's satisfaction prior to the commencement of any authorised development (or any relevant part thereof) to which sub-paragraph (1) applies and National Grid must give 56 days' notice of such works from the date of submission of a plan in line with sub-paragraphs (1), (2), (3) or (6) (except in an emergency)

(9) If National Grid in accordance with sub-paragraph (6) or (8) 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 (17) to (19) and (22) to (23) shall apply as if the removal of the apparatus had been required by the undertaker under paragraph 22(2).

(10) Nothing in this paragraph shall preclude 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, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(11) The undertaker shall not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and shall—

(a) comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under the Order, the undertaker must comply with National Grid's policies for development near over headlines ENA TA 43-8 and the Health and Safety Executive's guidance note 6 “Avoidance of Danger from Overhead Lines”.

(13) This paragraph shall not apply to numbered work 7.

Commencement Information

I61 Sch. 10 para. 25 in force at 3.4.2019, see art. 1

Expenses E+W+S

26.—(1) Subject to the following provisions of this paragraph, the undertaker shall pay to National Grid on demand all charges, costs and expenses reasonably anticipated or incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus or alternative apparatus which may be required in consequence of the execution of any such works as are referred to in this Schedule including without limitation—

(a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that National Grid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 22(3) all costs incurred as a result of such action;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Schedule.

(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

(3) If in accordance with the provisions of this part of this Schedule—

(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 situated,

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 settled by arbitration in accordance with article 41 (arbitration) of the Order to be necessary, then, if such placing involves cost in the construction of works under this part of this Schedule 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 National Grid by virtue of sub-paragraph (1) shall be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs shall be borne by the undertaker.

(4) For the purposes of sub-paragraph (3)—

(a) an extension of apparatus to a length greater than the length of existing apparatus shall not 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 pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall 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 National Grid in respect of works by virtue of sub-paragraph (1) shall, 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 National Grid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Commencement Information

I62 Sch. 10 para. 26 in force at 3.4.2019, see art. 1

Indemnity E+W+S

27.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Schedule or in consequence of the construction, use, 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 him) in the course of carrying out such works (including without limitation works carried out by the undertaker under this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or alternative 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 National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker shall—

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

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

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision shall not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) where the undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not materially accord with the approved plan or as otherwise agreed between the undertaker and National Grid.

(3) 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 National Grid, its officers, servants, contractors or agents; and

(b) any authorised development and/or any other works authorised by this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 (benefit of order grating development consent) 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 3(b) shall be subject to the full terms of this Schedule including this paragraph (27) in respect of such new apparatus.

(4) National Grid must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering their representations.

(5) National Grid must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph (27) applies. If requested to do so by the undertaker, National Grid shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph (27) for claims reasonably incurred by National Grid.

Commencement Information

I63 Sch. 10 para. 27 in force at 3.4.2019, see art. 1

Enactments and agreements E+W+S

28.  Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I64 Sch. 10 para. 28 in force at 3.4.2019, see art. 1

Co-operation E+W+S

29.  National Grid and the undertaker must each use their best endeavours to co-ordinate with the other party on the timing and method of execution of any works carried out under the Order or this Schedule (including, for the avoidance of doubt, pursuant to paragraph 22(2) and paragraphs (24) or (28)) in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the other party's operations.

Commencement Information

I65 Sch. 10 para. 29 in force at 3.4.2019, see art. 1

Access E+W+S

30.  If in consequence of the agreement reached in accordance with paragraph 21(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker shall provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Commencement Information

I66 Sch. 10 para. 30 in force at 3.4.2019, see art. 1

Arbitration E+W+S

31.  Save for differences or disputes arising under paragraphs 22(2), 22(4), 23(1), 24 and 25 any difference or dispute arising between the undertaker and National Grid under this Schedule shall, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 41 (arbitration) of the Order.

Commencement Information

I67 Sch. 10 para. 31 in force at 3.4.2019, see art. 1

PART 4 E+W+S FOR THE PROTECTION OF EPN

32.  For the protection of EPN as referred to in this part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and EPN. E+W+S

Commencement Information

I68 Sch. 10 para. 32 in force at 3.4.2019, see art. 1

33.  In this part of this Schedule— E+W+S

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

“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989 M14 ), belonging to or maintained by EPN;

“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; and

“EPN” means Eastern Power Networks plc (Company No. 02366906) whose registered office is at Newington House, 237 Southwark Bridge Road, London SE1 6NP;

Commencement Information

I69 Sch. 10 para. 33 in force at 3.4.2019, see art. 1

Marginal Citations

M14 1989 c.29.

34.  This part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and EPN are regulated by the provisions of Part 3 of the 1991 Act. E+W+S

Commencement Information

I70 Sch. 10 para. 34 in force at 3.4.2019, see art. 1

35.  Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 11 (temporary prohibition or restriction of use of streets), EPN is at liberty at all times to take all necessary access across any such street and 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. E+W+S

Commencement Information

I71 Sch. 10 para. 35 in force at 3.4.2019, see art. 1

36.  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. E+W+S

Commencement Information

I72 Sch. 10 para. 36 in force at 3.4.2019, see art. 1

37.—(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 EPN's apparatus is relocated or diverted, that apparatus must not be removed under this part of this Schedule, and any right of EPN 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 EPN in accordance with sub-paragraphs (2) to (7). E+W+S

(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 EPN 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 EPN reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to EPN 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, EPN must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed provided that this obligation shall not require EPN to exercise any power it may have to acquire any land or rights by compulsory purchase order.

(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 EPN and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (arbitration).

(5) EPN must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 41 (arbitration), and after the grant to EPN 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 EPN 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 EPN, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of EPN.

(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.

Commencement Information

I73 Sch. 10 para. 37 in force at 3.4.2019, see art. 1

38.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to EPN 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 EPN or in default of agreement settled by arbitration in accordance with article 41 (arbitration). E+W+S

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

Commencement Information

I74 Sch. 10 para. 38 in force at 3.4.2019, see art. 1

39.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 37(2), the undertaker must submit to EPN a plan, section and description of the works to be executed. E+W+S

(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 EPN for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and EPN is entitled to watch and inspect the execution of those works.

(3) Any requirements made by EPN under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If EPN 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 (32) to (38) apply as if the removal of the apparatus had been required by the undertaker under paragraph 37(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 EPN 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.

Commencement Information

I75 Sch. 10 para. 39 in force at 3.4.2019, see art. 1

40.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to EPN the reasonable expenses incurred by EPN in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 37(2). E+W+S

(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this part of this Schedule—

(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 41 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this part of this Schedule 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 EPN by virtue of sub-paragraph (1) is to 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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 37(2); 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 EPN in respect of works by virtue of sub-paragraph (1), 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 EPN any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.

Commencement Information

I76 Sch. 10 para. 40 in force at 3.4.2019, see art. 1

41.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 37(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 EPN, or there is any interruption in any service provided, or in the supply of any goods, by EPN, the undertaker must— E+W+S

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

(b) indemnify EPN for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from EPN,

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 EPN, its officers, servants, contractors or agents.

(3) EPN must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to 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.

Commencement Information

I77 Sch. 10 para. 41 in force at 3.4.2019, see art. 1

42.  Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and EPN in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W+S

Commencement Information

I78 Sch. 10 para. 42 in force at 3.4.2019, see art. 1

PART 5 E+W+S FOR THE PROTECTION OF ANGLIAN WATER

43.  For the protection of Anglian Water, the following provisions shall, unless otherwise agreed in writing between the undertaker and Anglian Water, have effect. E+W+S

Commencement Information

I79 Sch. 10 para. 43 in force at 3.4.2019, see art. 1

44.  In this Part of this schedule— E+W+S

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

“Anglian Water” means Anglian Water Services Limited;

“apparatus” means—

(a)

any works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage;

(b)

any drain or works vested in Anglian Water under the Water Industry Act 1991; and

(c)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of the Water Industry Act 1991 or an agreement to adopt made under section 104 (agreements to adopt a sewer, drain or sewage disposal works, at future date) of that Act M15 ,

and includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any sewer, drain, or works (within the meaning of section 219 (general interpretation) of that Act) and any structure in which apparatus is or is to 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; and

“plan” includes sections, drawings, specifications and method statements.

Commencement Information

I80 Sch. 10 para. 44 in force at 3.4.2019, see art. 1

Marginal Citations

M15 1991 c.56. Section 102(4) was amended by paragraph 90 of Schedule 7 to the Water Act 2014 (c.21) and section 96(1)(c) of the Water Act 2003 (c.37); Section 104 was amended by section 96(4)(a), (b), (c), (e) and (f), and paragraph 1 of Schedule 9(3) to the Water Act 2003 (c.37), section 42(3) of the Flood and Water Management Act 2010 and by sections 11(2)(a), 11(2)(b) and 11(2)(c) of the Water Act 2014 (c.21).

45.  This Part of this Schedule does not apply to apparatus to the extent that the relations between the undertaker and Anglian Water are regulated by the provisions of Part 3 (water supply) of the 1991 Act. E+W+S

Commencement Information

I81 Sch. 10 para. 45 in force at 3.4.2019, see art. 1

46.  The undertaker must not interfere with, build over or near to any apparatus within the Order land or 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 the standard protection strips which are the strips of land falling the following distances to either side of the medial line of any relevant pipe or apparatus: 2.25 metres where the diameter of the pipe is less than 150 millimetres; 3 metres where the diameter of the pipe is between 150 and 450 millimetres; 4.5 metres where the diameter of the pipe is between 450 and 750 millimetres; and 6 metres where the diameter of the pipe exceeds 750 millimetres, unless otherwise agreed in writing with Anglian Water, such agreement not to be unreasonably withheld or delayed, and such provision being brought to the attention of any agent or contractor responsible for carrying out the authorised development on behalf of the undertaker. E+W+S

Commencement Information

I82 Sch. 10 para. 46 in force at 3.4.2019, see art. 1

47.  The alteration, extension, removal or re-location of any apparatus shall not be implemented until— E+W+S

(a) any requirement for any permits under the Environmental Permitting (England and Wales) Regulations 2010 M16 or other legislation and any other associated consents are obtained, and any approval or agreement required from Anglian Water on alternative outfall locations as a result of such re-location are approved, such approvals from Anglian Water not to be unreasonably withheld or delayed; and

(b) the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Anglian Water has agreed all of the contractual documentation required under the Water Industry Act 1991, such agreement not to be unreasonably withheld or delayed; and such works to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

Commencement Information

I83 Sch. 10 para. 47 in force at 3.4.2019, see art. 1

Marginal Citations

M16 S.I. 2010/675

48.  In the situation, where in exercise of the powers conferred by the Order, the undertaker acquires any interest in any land in which Apparatus is placed and such apparatus is to be relocated, extended, removed or altered in any way, no alteration or extension shall take place until Anglian Water has established to its reasonable satisfaction in a timely manner, contingency arrangements in order to conduct its functions for the duration of the works to relocate, extend, remove or alter the apparatus or provide alternative apparatus. E+W+S

Commencement Information

I84 Sch. 10 para. 48 in force at 3.4.2019, see art. 1

49.  Regardless of any provision in this Order or anything shown on any plan, the undertaker must not acquire any apparatus otherwise than by agreement, and before extinguishing any existing rights for Anglian Water to use, keep, inspect, renew and maintain its apparatus in the Order land, the undertaker shall, with the agreement of Anglian Water, create a new right to use, keep, inspect, renew and maintain the apparatus that is reasonably convenient for Anglian Water such agreement not to be unreasonably withheld or delayed, and to be subject to arbitration under article 41 (arbitration). E+W+S

Commencement Information

I85 Sch. 10 para. 49 in force at 3.4.2019, see art. 1

50.  If the undertaker is unable to create the new rights referred to in paragraph (49), Anglian Water must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible, use its reasonable endeavours to obtain the necessary rights. E+W+S

Commencement Information

I86 Sch. 10 para. 50 in force at 3.4.2019, see art. 1

51.  If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is materially obstructed the undertaker shall provide such alternative means of access to such apparatus as will enable Anglian Water to maintain or use the apparatus no less effectively than was possible before such obstruction. E+W+S

Commencement Information

I87 Sch. 10 para. 51 in force at 3.4.2019, see art. 1

52.  In consequence of the exercise of the powers conferred by the Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets will immediately be given to Anglian Water and afforded the same protection of other Anglian Water assets. E+W+S

Commencement Information

I88 Sch. 10 para. 52 in force at 3.4.2019, see art. 1

53.  If for any reason or in consequence of the construction of any of the works referred to in paragraphs 46, 47 and 48 and 52 above 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 Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker shall— E+W+S

(a) bear and pay the cost reasonably incurred by Anglian Water in making good any damage or restoring the supply; and

(b) make reasonable compensation to Anglian Water for any other expenses, loss, damages, penalty or costs incurred by Anglian Water,

by reason or in consequence of any such damage or interruption.

Commencement Information

I89 Sch. 10 para. 53 in force at 3.4.2019, see art. 1

54.—(1) Nothing in paragraph 53 imposes any liability on the undertaker in respect of any damage or interruption to the extent that it is attributable to the neglect or default of Anglian Water, its officers' servants, contractors or agents. E+W+S

(2) Anglian Water must give the undertaker reasonable notice of any claim or demand pursuant to paragraph 53 and must consider its representations before proceeding further in respect of the claim or demand.

(3) Anglian Water must use its reasonable endeavours to mitigate in whole or in part and to minimise any claim, costs, expenses, loss, demands and penalties pursuant to paragraph 53. If requested to do so by the undertaker, Anglian Water shall provide an explanation of how the claim has been minimised

Commencement Information

I90 Sch. 10 para. 54 in force at 3.4.2019, see art. 1

55.  Any difference or dispute arising between the undertaker and Anglian Water under this schedule must, unless otherwise agreed in writing between the undertaker and Anglian Water, be determined by arbitration in accordance with article 41 (arbitration). E+W+S

Commencement Information

I91 Sch. 10 para. 55 in force at 3.4.2019, see art. 1

PART 6 E+W+S FOR THE PROTECTION OF COVANTA ROOKERY SOUTH LIMITED

56.  For the protection of Covanta Rookery South Limited (Company No. 07094843) as referred to in this part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Covanta. E+W+S

Commencement Information

I92 Sch. 10 para. 56 in force at 3.4.2019, see art. 1

57.  In this part of this Schedule— E+W+S

“Covanta” means Covanta Rookery South Limited (Company No. 07094843) whose registered office is at 20-22 Bedford Row London WC1R 4JS;

“the Millbrook authorised development” means the development authorised by this Order;

“the respective authorised developments” means the Rookery authorised development and the Millbrook authorised development”

“the Rookery Order” means the Rookery South (Resource Recovery Facility) Order 2011;

“Rookery limits of deviation” means the areas of the Rookery Order land in respect of which the Rookery authorised development may be constructed, in accordance with Article 3(2) of the Rookery Order;

“the Rookery Order land” means the land or any part of it shown as falling within the Rookery Order limits; and

“the Rookery authorised development” means the development authorised by the Rookery Order.

Commencement Information

I93 Sch. 10 para. 57 in force at 3.4.2019, see art. 1

Co-operation during construction E+W+S

58.  The undertaker shall not submit written details for numbered work 2A for approval to the relevant planning authorities in accordance with requirement 5(2) (highway access) without first obtaining the written consent of Covanta in respect of the route, siting and location of numbered work 2A.

Commencement Information

I94 Sch. 10 para. 58 in force at 3.4.2019, see art. 1

59.  The undertaker shall not exercise powers pursuant to articles 9 (street works), 10 (construction and maintenance of new or altered means of access) or 11 (temporary prohibition or restriction of use of streets) over land within the Rookery limits of deviation without first obtaining the written consent of Covanta. E+W+S

Commencement Information

I95 Sch. 10 para. 59 in force at 3.4.2019, see art. 1

60.—(1) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of Covanta, that approval or consent shall be in writing (and subject to such reasonable terms and conditions as Covanta may require), but shall not be unreasonably withheld. E+W+S

(2) In the event that Covanta does not respond in writing to a request for approval or consent within 28 days of receipt of such a request, Covanta is deemed to have given its consent (without any terms or conditions).

Commencement Information

I96 Sch. 10 para. 60 in force at 3.4.2019, see art. 1

61.  Insofar as the construction of the Millbrook authorised development is or may be undertaken concurrently with the Rookery authorised development, the undertaker shall— E+W+S

(a) co-operate with Covanta with a view to ensuring—

(i) the co-ordination of construction programming and the carrying out of works; and

(ii) that access for the purposes of constructing the respective authorised developments is maintained for the undertaker and Covanta and their respective contractors.

(b) use reasonable endeavours to avoid any conflict arising between the carrying out of the respective authorised developments.

Commencement Information

I97 Sch. 10 para. 61 in force at 3.4.2019, see art. 1

62.  Insofar as the construction of the Millbrook authorised development gives rise to the need to modify any scheme secured by a requirement contained in Part 2 of Schedule 1 to the Rookery Order, the undertaker shall provide such assistance as is reasonably necessary to support Covanta in pursuing any such modification. E+W+S

Commencement Information

I98 Sch. 10 para. 62 in force at 3.4.2019, see art. 1

Arbitration E+W+S

63.—(1) Any difference or dispute arising between the undertaker and Covanta under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Covanta, be referred to and settled in arbitration in accordance with the Rules at Schedule 13 of this Order, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.

(2) Article 41 (arbitration) shall not apply to any difference or dispute under any provisions of the Part of this Schedule.

Commencement Information

I99 Sch. 10 para. 63 in force at 3.4.2019, see art. 1

PART 7 E+W+S FOR THE PROTECTION OF NETWORK RAIL

64.  For the protection of Network Rail as referred to in this part of this Schedule the following provisions shall, unless otherwise agreed in writing between the undertaker and Network Rail, have effect. E+W+S

Commencement Information

I100 Sch. 10 para. 64 in force at 3.4.2019, see art. 1

65.  In this part of this Schedule— E+W+S

“Network Rail” means Network Rail Infrastructure Limited (Company registration number 02904587) whose registered office is at 1 Eversholt Street, London, NW1 2DN and any associated company of Network Rail which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

Commencement Information

I101 Sch. 10 para. 65 in force at 3.4.2019, see art. 1

66.—(1) Where under this Part Network Rail is required to give its consent, agreement or approval in respect of any matter, that consent, agreement 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. E+W+S

(2) Subject to subparagraph (1) where Network Rail is asked to give its consent, agreement or approval pursuant to this Part, such consent, agreement or approval must not be unreasonably withheld but may be given subject to reasonable conditions.

Commencement Information

I102 Sch. 10 para. 66 in force at 3.4.2019, see art. 1

67.  The undertaker shall include provisions relating to anti-dazzle fencing in the written details of any proposed permanent fence or other means of enclosure for numbered work 2A submitted pursuant to requirement 6 of Schedule 2 such provisions to be substantially in accordance with the equivalent provisions in the approved details submitted pursuant to paragraph 11 of Schedule 2 of The Rookery South (Resource Recovery Facility) Order 2011 unless otherwise agreed by Network Rail. E+W+S

Commencement Information

I103 Sch. 10 para. 67 in force at 3.4.2019, see art. 1

68.—(1) The undertaker shall not submit the written details of any proposed permanent fence or other means of enclosure for numbered work 2A to Central Bedfordshire Council in accordance with requirement 6 of Schedule 2 (Fencing and other means of site perimeter enclosure) without having first obtained the written approval of Network Rail in accordance with subparagraph (2). E+W+S

(2) The undertaker shall provide Network Rail with a draft of the written details of any proposed permanent fence or other means of enclosure for numbered work 2A (including the proposed anti-dazzle fencing) for approval and Network Rail shall within a period of 28 days beginning with the date on which the written details are received by Network Rail serve written notice on the undertaker confirming that:

(a) the written details are approved; or

(b) the written details are approved subject to reasonable amendments as required by Network Rail; or

(c) the written details are not approved and the reason for the non-approval; or

(d) that further information is required in order for Network Rail to make its determination (in which case this paragraph 68(2) shall apply to such further information from the date of its receipt by Network Rail).

(3) In the event that Network Rail fails to serve written notice in accordance with paragraph 68(2) within 28 days of receipt Network Rail shall be deemed to have served a notice pursuant to paragraph 68(2)(a).

(4) The undertaker must include any amendments which are required by Network Rail and notified to the undertaker by Network Rail in the notice given pursuant to paragraph 68(2)(b) in the written details of any proposed permanent fence or other means of enclosure for numbered work 2A it submits to Central Bedfordshire Council in accordance with requirement 6 of Schedule 2 (Fencing and other means of site perimeter enclosure) and the undertaker shall not submit any such written details to Central Bedfordshire Council which have not been approved by Network Rail in accordance with paragraphs 68(2) or (3).

(5) In deciding whether to approve the written details or request any amendments Network Rail shall take into account any fencing approved or constructed pursuant to The Rookery South (Resource Recovery Facility) Order 2011.

(6) Each notice and all other information required to be sent to Network Rail under the terms of this paragraph 68 shall:

(a) be sent to the Company Secretary and General Counsel at Network Rail Infrastructure Limited, 1 Eversholt Street, London, NW1 2DN via Royal Mail plc's special delivery service (or if this service is no longer being provided an appropriate recorded delivery postal service) and marked for the attention of the London North Western Route Asset Manager; and

(b) contain a clear statement on its front page that Network Rail must respond within 28 days of receipt.

Commencement Information

I104 Sch. 10 para. 68 in force at 3.4.2019, see art. 1

69.  The undertaker shall not be obliged to construct the anti-dazzle fencing approved pursuant to requirement 6 of Schedule 2 in the event that anti-dazzle fencing has been constructed pursuant to The Rookery South (Resource Recovery Facility) Order 2011. E+W+S

Commencement Information

I105 Sch. 10 para. 69 in force at 3.4.2019, see art. 1

70.—(1) The undertaker shall not submit the construction traffic management plan to the relevant planning authorities in accordance with requirement 11 of Schedule 2 (construction traffic management plan) without having first obtained the written approval of Network Rail in accordance with subparagraph (2). E+W+S

(2) The undertaker shall provide Network Rail with a draft of the construction traffic management plan for approval and Network Rail shall within a period of 28 days beginning with the date on which the draft construction traffic management plan is received by Network Rail serve written notice on the undertaker confirming that:

(a) the draft construction traffic management plan is approved; or

(b) the draft construction traffic management plan is approved subject to reasonable amendments as required by Network Rail; or

(c) the draft construction traffic management plan is not approved and the reason for the non-approval; or

(d) that further information is required in order for Network Rail to make its determination (in which case this paragraph 70(2) shall apply to such further information from the date of its receipt by Network Rail).

(3) In the event that Network Rail fails to serve written notice in accordance with paragraph 70(2) within 28 days of receipt Network Rail shall be deemed to have served a notice pursuant to paragraph 70(2)(a).

(4) The undertaker must include any amendments which are required by Network Rail and notified to the undertaker by Network Rail in the notice given pursuant to paragraph 70(2)(b) in the draft construction traffic management plan it submits to the relevant planning authorities in accordance with requirement 11 of Schedule 2 (construction traffic management plan) and the undertaker shall not submit any such written details to the relevant planning authorities which have not been approved by Network Rail in accordance with paragraphs 70(2) or (3).

(5) In deciding whether to approve the draft construction traffic management plan or request any amendments Network Rail shall take into account any funding received from any other third party in respect of upgrade works to the Green Lane level crossing (even if such upgrade works have not yet been completed by Network Rail) and any approval must not be conditional on the undertaker contributing funding towards a full barrier at Green Lane level crossing.

(6) Each notice and all other information required to be sent to Network Rail under the terms of this paragraph 70 shall:

(a) be sent to the Company Secretary and General Counsel at Network Rail Infrastructure Limited, 1 Eversholt Street, London, NW1 2DN via Royal Mail plc's special delivery service (or if this service is no longer being provided an appropriate recorded delivery postal service) and marked for the attention of the London North Western Route Level Crossing Manager; and

(b) contain a clear statement on its front page that Network Rail must respond within 28 days of receipt.

Commencement Information

I106 Sch. 10 para. 70 in force at 3.4.2019, see art. 1

71.—(1) Any difference or dispute arising between the undertaker and Network Rail under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Network Rail, be referred to and settled in arbitration in accordance with the Rules at Schedule 13 of this Order, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State. E+W+S

(2) Article 41 (arbitration) shall not apply to any difference or dispute under any provisions of the Part of this Schedule.

Commencement Information

I107 Sch. 10 para. 71 in force at 3.4.2019, see art. 1

72.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993. E+W+S

Commencement Information

I108 Sch. 10 para. 72 in force at 3.4.2019, see art. 1

Article 37

SCHEDULE 11 E+W+S MODIFICATIONS TO AND AMENDMENTS OF THE ROOKERY SOUTH (RESOURCE RECOVERY FACILITY) ORDER 2011

Article 33 to the Rookery South (Resource Recovery Facility) Order 2011 E+W+S

1.  In the title to Article 33, after the words “Protection of Network Rail Infrastructure Limited” insert the words “ and Millbrook Power Limited ”.

Commencement Information

I109 Sch. 11 para. 1 in force at 3.4.2019, see art. 1

2.  After the words “Schedule 7” and before the words “Protection of Network Rail Infrastructure Limited” insert the words “ Part 1 ”. E+W+S

Commencement Information

I110 Sch. 11 para. 2 in force at 3.4.2019, see art. 1

Schedule 7 to the Rookery South (Resource Recovery Facility) Order 2011 E+W+S

3.  After paragraph 21 of Schedule 7 insert new Part 2—

“Part 2 E+W+S PROTECTION OF MILLBROOK POWER LIMITED

Application

22.   The following provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing between the undertaker and Millbrook Power.

Interpretation

23.   In this part of this Schedule—

“the Millbrook access road land” means the land shown as plots 4_PGP, 5_PGP, 5A_PGP, 6 _PGP and 7_PGP on the land plans and described in the book of reference as certified by the Secretary of State pursuant to the Millbrook Order;

“the Millbrook Order” means the Millbrook Gas Fired Generating Station Order 2019;

“the Millbrook Order land” has the same meaning as the term “Order land” in Article 2(1) of the Millbrook Order but excluding the Millbrook access road land;

“Millbrook Power” means Millbrook Power Limited, (Company No. 08920458) whose registered office is at Drax Power Station, Drax, Selby, North Yorkshire YO58 8PH or any person having the benefit of the Millbrook Order pursuant to Article 6 and/or 7 thereof;

“the Order” means this Order; and

“the respective authorised developments” means the developments authorised by the Order and the Millbrook Order respectively.

Regulation of powers over the Millbrook access road land

24.— (1) If as a consequence of the powers granted under this Order access (with or without vehicles plant and machinery) to the Millbrook Order land is obstructed the undertaker shall provide such alternative means of access to the Millbrook Order land as will enable Millbrook Power to construct, use and maintain the development authorised by the Millbrook Order no less effectively than was possible before such obstruction.

(2) Subject to Millbrook Power complying with paragraph 58 of Part 6 of Schedule 10 to the Millbrook Order the undertaker shall not exercise the powers granted under this Order so as to hinder or prevent the construction, use or maintenance of numbered work 2 as authorised by the Millbrook Order without the prior written consent of Millbrook Power.

(3) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of Millbrook Power, that approval or consent shall be in writing (and subject to such reasonable terms and conditions as Millbrook Power may require), but shall not be unreasonably withheld.

(4) In the event that Millbrook Power does not respond in writing to a request for approval or consent within 28 days of receipt of such a request, Millbrook Power is deemed to have given its consent (without any terms or conditions).

Regulation of powers over the Millbrook Order land

25.— (1) The undertaker shall not exercise the powers under any of the articles of the Order specified in sub-paragraph (2) over or in respect of the Millbrook Order land otherwise than with the prior written consent of Millbrook Power.

(2) The articles referred to in sub-paragraph (1) are—

(a) Article 10 (street works);

(b) Article 11 (public rights of way);

(c) Article 12 (temporary stopping up of streets);

(d) Article 13 (access to works);

(e) Article 15 (discharge of water);

(f) Article 16 (authority to survey and investigate land);

(g) Article 17 (compulsory acquisition of land);

(h) Article 18 (power to override easements and other rights);

(i) Article 26 (temporary use of land for maintaining authorised development);

(n) Article 27 (statutory undertakers); and

(o) Article 31 (felling or lopping of trees).

(3) In the event that Millbrook Power withholds its consent pursuant to sub-paragraph (1) it shall notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.

Co-operation

26.   Insofar as the construction of the respective authorised developments is or may be undertaken concurrently, the undertaker shall—

(a) co-operate with Millbrook Power with a view to ensuring—

(i) the co-ordination of construction programming and the carrying out of works; and

(ii) that access for the purposes of constructing the respective authorised developments is maintained for the undertaker and Millbrook Power and their respective contractors.

(b) use reasonable endeavours to avoid any conflict arising between the carrying out of the respective authorised developments.

27.   Insofar as the construction of the authorised development gives rise to the need to modify any scheme secured by a requirement contained in Schedule 2 to the Millbrook Order, the undertaker shall provide such assistance as is reasonably necessary to support Millbrook Power in pursuing any such modification.

Requirements

28.   Insofar as compliance with paragraph 25(1) of this Part prevents the undertaker from complying with any requirement contained in Part 2 of Schedule 1 to the Order, the undertaker shall not be in breach of such requirement for the time period specified in paragraph 25(3).

29.   In the event that paragraph 28 applies, the undertaker shall provide the relevant planning authority with a copy of the reasons given by Millbrook Power for refusing consent and the time period pursuant to paragraph 25(3).

30.   It shall be a defence for any person charged with an offence pursuant to section 161 of the Planning Act 2008 (breach of terms of order granting development consent) to prove that they were not able to comply with a requirement contained in Part 2 of Schedule 1 to the Order due to the effect of paragraph 25 of this Part.

Arbitration

31.— (1) Any difference or dispute arising between the undertaker and Millbrook Power under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Millbrook Power, be referred to and settled in arbitration, by a single arbitrator to be agreed upon by the parties within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.

(2) Article 34 (arbitration) shall not apply to any difference or dispute under any provision of this Part of this Schedule.”

Commencement Information

I111 Sch. 11 para. 3 in force at 3.4.2019, see art. 1

Article 40

SCHEDULE 12 E+W+S PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirements E+W+S

1.—(1) Where an application has been made to the relevant authority for any consent, agreement or approval required by a requirement (including agreement or approval in respect of part of a requirement) included in this Order the relevant authority must give notice to the undertaker of their decision on the application within a period of eight (8) weeks beginning with—

(a) the day immediately following that on which the application is received by the authority;

(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 2; or

(c) such longer period as may be agreed by the undertaker and the relevant authority in writing.

(2) Subject to sub-paragraph (3), in the event that the relevant authority does not determine an application within the period set out in sub-paragraph (1), the relevant authority is to be taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

(3) Where—

(a) an application has been made to the relevant planning authorities for any consent, agreement or approval required by a requirement included in this Order; and

(b) the relevant planning authorities do not determine such application within the period set out in sub-paragraph (1); and

(c) such application is accompanied by a report that considers it likely that the subject matter of such application will give rise to any materially new or materially different environmental effects in comparison with the authorised development as approved, then the application is to be taken to have been refused by the relevant planning authorities at the end of that period.

Commencement Information

I112 Sch. 12 para. 1 in force at 3.4.2019, see art. 1

Further information E+W+S

2.—(1) In relation to any part of the application to which this Schedule applies, the relevant authority has the right to request such further information from the undertaker as is necessary to enable it to consider the application.

(2) In the event that it considers such further information to be necessary the relevant authority must, within twenty eight (28) days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates. In the event that the relevant planning authorities do not give such notification within this twenty eight (28) day period it is deemed to have sufficient information to consider the application and thereafter is not entitled to request further information without the prior agreement of the undertaker.

(3) Where further information is requested under this paragraph 2 in relation to part only of an application, that part is to be treated as separate from the remainder of the application for the purposes of calculating time periods in paragraph 1(1)(b), paragraph 1(3) and paragraph 2.

Commencement Information

I113 Sch. 12 para. 2 in force at 3.4.2019, see art. 1

Appeals E+W+S

3.—(1) The undertaker may appeal in the event that—

(a) the relevant authority refuses (including a deemed refusal pursuant to paragraph 1(3)) an application for any consent, agreement or approval required by an article or requirement included in this Order or grants it subject to conditions;

(b) on receipt of a request for further information pursuant to paragraph 2 the undertaker considers that either the whole or part of the specified information requested by the relevant authority is not necessary for consideration of the application; or

(c) on receipt of any further information requested, the relevant authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

(2) The appeal process is to be as follows—

(a) The undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the relevant authority and any article or requirement consultee (together with the undertaker, these are the “appeal parties”);

(b) The Secretary of State must appoint a person within twenty (20) business days of receiving the appeal documentation and must forthwith notify the appeal parties of the identity of the appointed person and the address to which all correspondence for his attention should be sent;

(c) The relevant authority and any requirement consultee must submit written representations to the appointed person in respect of the appeal within twenty (20) business days of the start date and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

(d) The appeal parties must make any counter-submissions to the appointed person within twenty (20) business days of receipt of written representations pursuant to sub-paragraph (c) above; and

(e) The appointed person must make his decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within thirty (30) business days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (d).

The appointment of the person pursuant to sub-paragraph (b) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

(3) In the event that the appointed person considers that further information is necessary to enable him to consider the appeal he must, within five (5) days of his appointment, notify the appeal parties in writing specifying the further information required.

(4) Any further information required pursuant to sub-paragraph (3) must be provided by the undertaker to the appointed person, the relevant authority and any requirement consultee on the date specified by the appointed person (the “specified date”), and the appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of written representations to the appointed person within ten (10) days of the specified date but must otherwise be in accordance with the process and time limits set out in sub-paragraph (2)(c)-(e).

(5) On an appeal under this paragraph, the appointed person may—

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the relevant authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

(6) The appointed person may take into account written representations that have been sent outside of the relevant time limits but the appointed person must proceed to a decision within the time limits set by this Schedule.

(7) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to him that there is sufficient material to enable a decision to be made on the merits of the case.

(8) The decision of the appointed person on an appeal is to be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

(9) If an approval is given by the appointed person pursuant to this Schedule, it is deemed to be an approval for the purpose of Schedule 2 of this Order as if it had been given by the relevant authority. The relevant authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) is not to be taken to affect or invalidate the effect of the appointed person's determination.

(10) The appointed person may or may not be a member of the Planning Inspectorate but must be a qualified town planner of at least ten (10) years' experience.

(11) Save where a direction is given pursuant to sub-paragraph (12) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

(12) On application by the relevant authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to Planning Practice Guidance: Appeals (March 2014) or any circular or guidance which may from time to time replace it.

Commencement Information

I114 Sch. 12 para. 3 in force at 3.4.2019, see art. 1

4.  In this Schedule “ relevant authority” means the relevant planning authorities, relevant highway authority, traffic authority, street authority, or the owner of a watercourse, sewer or drain as may be appropriate to the consent, agreement or approval sought. E+W+S

Commencement Information

I115 Sch. 12 para. 4 in force at 3.4.2019, see art. 1

Article 36

SCHEDULE 13 E+W+S ARBITRATION RULES

Primary Objective E+W+S

1.  The primary objective of these Arbitration Rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within 4 months from the date the Arbitrator is appointed pursuant to paragraph 63 or 71 of Schedule 10 of the Order.

Commencement Information

I116 Sch. 13 para. 1 in force at 3.4.2019, see art. 1

2.  The Arbitration shall be deemed to have commenced when a party (“the Claimant”) serves a written notice of arbitration on the other party (“the Respondent”). E+W+S

Commencement Information

I117 Sch. 13 para. 2 in force at 3.4.2019, see art. 1

Time Periods E+W+S

3.  All time periods in these Arbitration Rules will be measured in days and this will include weekends, but not bank or public holidays.

Commencement Information

I118 Sch. 13 para. 3 in force at 3.4.2019, see art. 1

4.  Time periods will be calculated from the day after the Arbitrator is appointed which shall be either: E+W+S

(a) the date the Arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or

(b) the date the Arbitrator is appointed by the Secretary of State.

Commencement Information

I119 Sch. 13 para. 4 in force at 3.4.2019, see art. 1

Timetable E+W+S

5.  The timetable for the Arbitration will be that set out in Rules 6 to 8 below unless amended in accordance with Rule 22.

Commencement Information

I120 Sch. 13 para. 5 in force at 3.4.2019, see art. 1

6.  Within 14 days of the Arbitrator being appointed, the Claimant shall provide both the Respondent and the Arbitrator with: E+W+S

(a) a written Statement of Claim which describes the nature of the difference between the parties, the legal and factual issues, the Claimant's contentions as to those issues, the amount of its claim and/or the remedy it is seeking;

(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.

Commencement Information

I121 Sch. 13 para. 6 in force at 3.4.2019, see art. 1

7.  Within 14 days of receipt of the Claimant's Rule 6 statements by the Arbitrator and Respondent, the Respondent shall provide the Claimant and the Arbitrator with: E+W+S

(a) a written Statement of Defence responding to the Claimant's Statement of Claim, its statement in respect of the nature of the difference, the legal and factual issues in the Claimant's claim, its acceptance of any element(s) of the Claimant's claim, its contentions as to those elements of the Claimant's claim it does not accept;

(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;

(c) any objections it wishes to make to the Claimant's statements, comments on the Claimant's expert report(s) (if submitted by the Claimant) and explanations for the objections.

Commencement Information

I122 Sch. 13 para. 7 in force at 3.4.2019, see art. 1

8.  Within 7 days of the Respondent serving its Rule 7 statements, the Claimant may make a Statement of Reply by providing both the Respondent and the Arbitrator with: E+W+S

(a) a written statement responding to the Respondent's submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;

(b) all statements of evidence and copies of documents in response to the Respondent's submissions;

(c) any expert report in response to the Respondent's submissions;

(d) any objections to the statements of evidence, expert reports or other documents submitted by the Respondent;

(e) its written submissions in response to the legal and factual issues involved.

Commencement Information

I123 Sch. 13 para. 8 in force at 3.4.2019, see art. 1

Procedure E+W+S

9.  The parties' pleadings, witness statements and expert reports (if any) shall be concise. No single pleading will exceed 30 single-sided A4 pages using 10pt Arial font.

Commencement Information

I124 Sch. 13 para. 9 in force at 3.4.2019, see art. 1

10.  The Arbitrator shall make an award on the substantive difference(s) based solely on the written material submitted by the parties unless the Arbitrator decides that a hearing is necessary to explain or resolve any matters. E+W+S

Commencement Information

I125 Sch. 13 para. 10 in force at 3.4.2019, see art. 1

11.  Either party may, within 2 days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required. E+W+S

Commencement Information

I126 Sch. 13 para. 11 in force at 3.4.2019, see art. 1

12.  Within 7 days of receiving the last submission, the Arbitrator will notify the parties whether a hearing is to be held and the length of that hearing. E+W+S

Commencement Information

I127 Sch. 13 para. 12 in force at 3.4.2019, see art. 1

13.  Within 10 days of the Arbitrator advising the parties that he will hold a hearing, the date and venue for the hearing will be fixed by agreement with the parties, save that if there is no agreement the Arbitrator shall direct a date and venue which he considers is fair and reasonable in all the circumstances. The date for the hearing shall not be less than 35 days from the date of the Arbitrator's direction confirming the date and venue of the hearing. E+W+S

Commencement Information

I128 Sch. 13 para. 13 in force at 3.4.2019, see art. 1

14.  A decision will be made by the Arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the Arbitrator, then any expert(s) attending the hearing may be asked questions by the Arbitrator. E+W+S

Commencement Information

I129 Sch. 13 para. 14 in force at 3.4.2019, see art. 1

15.  There will be no process of examination and cross-examination of experts, but the Arbitrator shall invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the Arbitrator's questions. Prior to the hearing the procedure for the expert(s) will be that: E+W+S

(a) At least 28 days before a hearing, the Arbitrator will provide a list of issues to be addressed by the expert(s);

(b) If more than one expert is called, they will jointly confer and produce a joint report or reports within 14 days of the issues being provided; and

(c) The form and content of a joint report shall be as directed by the Arbitrator and must be provided at least 7 days before the hearing.

Commencement Information

I130 Sch. 13 para. 15 in force at 3.4.2019, see art. 1

16.  Within 14 days of a Hearing or a decision by the Arbitrator that no hearing is to be held the Parties may by way of exchange provide the Arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The Arbitrator shall take these submissions into account in the Award. E+W+S

Commencement Information

I131 Sch. 13 para. 16 in force at 3.4.2019, see art. 1

17.  The Arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within 4 months of the date on which he/she is appointed, unless both parties otherwise agree to an extension to the date for the award. E+W+S

Commencement Information

I132 Sch. 13 para. 17 in force at 3.4.2019, see art. 1

18.  If a party fails to comply with the timetable, procedure or any other direction then the Arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before him/her attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction. E+W+S

Commencement Information

I133 Sch. 13 para. 18 in force at 3.4.2019, see art. 1

19.  The Arbitrator's award shall include reasons. The parties shall accept that the extent to which reasons are given shall be proportionate to the issues in dispute and the time available to the Arbitrator to deliver the award. E+W+S

Commencement Information

I134 Sch. 13 para. 19 in force at 3.4.2019, see art. 1

Arbitrator's Powers E+W+S

20.  The Arbitrator has all the powers of the Arbitration Act 1996, including the non-mandatory sections, save where modified by these Rules.

Commencement Information

I135 Sch. 13 para. 20 in force at 3.4.2019, see art. 1

21.  There shall be no discovery or disclosure, except that the Arbitrator shall have the power to order the parties to produce such documents as are reasonably requested by another party no later than the Statement of Reply, or by the Arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing. E+W+S

Commencement Information

I136 Sch. 13 para. 21 in force at 3.4.2019, see art. 1

22.  Any time limits fixed in accordance with this procedure or by the Arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the Arbitrator. In the absence of agreement, the Arbitrator may vary the timescales and/or procedure: E+W+S

(a) if the Arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;

(b) only for such a period that is necessary to achieve fairness between the parties.

Commencement Information

I137 Sch. 13 para. 22 in force at 3.4.2019, see art. 1

23.  On the date the award is made, the Arbitrator will notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the Arbitrator's fees and expenses. E+W+S

Commencement Information

I138 Sch. 13 para. 23 in force at 3.4.2019, see art. 1

Costs E+W+S

24.  The costs of the Arbitration shall include the fees and expenses of the Arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the Arbitration.

Commencement Information

I139 Sch. 13 para. 24 in force at 3.4.2019, see art. 1

25.  Where the difference involves connected/interrelated issues, the Arbitrator will consider the relevant costs collectively. E+W+S

Commencement Information

I140 Sch. 13 para. 25 in force at 3.4.2019, see art. 1

26.  The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties. E+W+S

Commencement Information

I141 Sch. 13 para. 26 in force at 3.4.2019, see art. 1

27.  The Arbitrator will award recoverable costs on the general principle that costs follow the event, having regard to all material circumstances, including such matters as exaggerated claims and/or defences, the degree of success for different elements of the claims, claims that have incurred substantial costs, the conduct of the parties and the degree of success of a party. E+W+S

Commencement Information

I142 Sch. 13 para. 27 in force at 3.4.2019, see art. 1

Confidentiality E+W+S

28.  The parties agree that any hearings in this Arbitration shall take place in private.

Commencement Information

I143 Sch. 13 para. 28 in force at 3.4.2019, see art. 1

29.  The parties and Arbitrator agree that any matters, materials, documents, awards, expert reports and the like are confidential and shall not be disclosed to any third party without prior written consent of the other party, save for any application to the Courts. E+W+S

Commencement Information

I144 Sch. 13 para. 29 in force at 3.4.2019, see art. 1

Article 38

SCHEDULE 14 E+W+S DOCUMENTS AND PLANS TO BE CERTIFIED

Commencement Information

I145 Sch. 14 in force at 3.4.2019, see art. 1

[F14 Table 11

(1)Document name	(2)Document reference	(3)Revision number	(4)Date
access road visibility splay plan (contained in appendix 2.1 of appendix 12.1 of the environmental statement)	Drawing reference 31116/2001/008	B	April 2018
book of reference	4.3	3	August 2018
design principles statement	10.2	0	October 2017
environmental statement, Main statement	6.1	0	October 2017
Appendix Volume A: 1.1 Glossary	6.2	0	October 2017
Appendix Volume B: 1.2 Scoping Report and Scoping Opinion	6.2	0	October 2017
Appendix Volume C: 2.6-2.14 Legislation and Policy	6.2	0	October 2017
Appendix Volume D: 3.1 Mitigation Roadmap	6.2	0	October 2017
Appendix Volume E: 3.2 Outline CEMP	6.2	2	July 2018
Appendix Volume F: 5.1 CHP Statement	6.2	0	October 2017
Appendix Volume G: 6.1-6.3 Air Quality	6.2	0	October 2017
Appendix Volume H: 7.1 Noise	6.2	0	October 2017
Appendix Volume H: 7.2 and 7.3 Noise	6.2	1	April 2018
Appendix Volume I: 8.1-8.5 Ecology	6.2	0	October 2017
Appendix Volume J: 10.1 Ground Conditions	6.2	0	October 2017
Appendix Volume K: 11.1 and 11.2 LVIA	6.2	0	October 2017
Appendix Volume K: 11.3 LVIA	6.2	1	April 2018
Appendix Volume L: 12.1 TA (save in respect of Appendix 2.1)	6.2	0	October 2017
Appendix Volume L: Appendix 2.1 of the TA	6.2 Drawing reference 31116/2001/0008	B	April 2018
Appendix Volume M: 13.1-13.3 Historic Environment	6.2	0	October 2017
Appendix Volume N: 15.1 Electric and Magnetic Fields Assessment Report	6.2	0	October 2017
Figures (save in respect of Figure 11.1)	6.3	0	October 2017
Figure 11.1	6.3	1	April 2018
Non-technical summary	6.4	0	October 2017
the indicative site layout plans	2.3	2	June 2019
land plans	2.5	2	June 2019
the low level restoration scheme baseline works plan	Drawing reference: J0008128-409	0	April 2018
the outline construction environment management plan (contained in appendix 3.2 of the environmental statement)	6.2	2	July 2018
the outline construction traffic management measures (contained in the outline construction environment management plan and appendices 5.2 to 5.5 of appendix 12.1 of the environmental statement)	6.2	0	October 2017
the outline landscape and ecological mitigation and management strategy (contained in appendix 11.2 of the environmental statement)	6.2	2	June 2019
the outline lighting strategy (contained in appendix 11.3 of the environmental statement)	6.2	0	October 2017
the outline travel plan (contained in appendix 12.1 of the environmental statement)	6.2	0	October 2017
the rights of way, streets and access plan	2.7	3	June 2019
Works plans	2.6	2	June 2019]

Textual Amendments

F14 Sch. 14 Table 11 substituted (9.4.2020) by The Millbrook Gas Fired Generating Station (Amendment) Order 2020 (S.I. 2020/413), arts. 1, 9, Sch. 6