The West Midlands Rail Freight Interchange Order 2020

SCHEDULES

Articles 42 and 43

SCHEDULE 13 PROTECTIVE PROVISIONS

PART 1 FOR PROTECTION OF RAILWAY INTERESTS

1.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 15 of this Part of this Schedule, any other person on whom rights or obligations are conferred by that paragraph.

2.  In this Part of this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” are to be construed accordingly;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise powers under section 8 (licences) of the Railways Act 1993(1);

“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited 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(2)) 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;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

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

“railway property” means any railway belonging to Network Rail and—

(a)

any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and

(b)

any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment; and

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

3.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent 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.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b) use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

4.—(1) The undertaker must not exercise the powers conferred by articles 22 (authority to survey and investigate the land), 24 (compulsory acquisition of land), 25 (compulsory acquisition of rights), 27 (power to override easements and other rights), 34 (temporary use of land for carrying out the authorised development) and 35 (temporary use of land for maintaining the authorised development) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

(2) The undertaker must not, in the exercise of the powers conferred by this Order, prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(3) The undertaker must not exercise the powers conferred by sections 271 or 272(3) of the 1990 Act or article 32 (statutory undertakers and operators of the electronic communications code network), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(4) The undertaker must not, under the powers of this Order, acquire or use, or acquire new rights over, any railway property except with the consent of Network Rail.

(5) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article 47 (arbitration).

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated his disapproval of those plans and the grounds of his disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate his approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated his approval or disapproval, he is deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying his approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in his opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation, de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to his reasonable satisfaction.

6.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) of this Part of this Schedule must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c) in such manner as to cause as little damage as is possible to railway property; and

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

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

7.  The undertaker must—

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

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

8.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

9.—(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 5(3) of this Part of this Schedule, pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) of this Part of this Schedule provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

10.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 5(3) of this Part of this Schedule or in constructing any protective works under the provisions of paragraph 5(4) of this Part of this Schedule including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;

(c) in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

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

(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

11.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) of this Part of this Schedule for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1) of this Part of this Schedule) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

(c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 5(1) of this Part of this Schedule has effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning operations comprised in the authorised development and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a) the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

(b) Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI; and

(c) Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI.

(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

(a) Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

(b) such modifications must be carried out and completed by the undertaker in accordance with paragraph 6 of this Part of this Schedule.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) of this Part of this Schedule applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 10(a) of this Part of this Schedule any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 47 (arbitration) to the Institution of Civil Engineers is to be read as a reference to the Institution of Electrical Engineers.

12.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

13.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

14.  Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

15.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail—

(a) by reason of the construction or maintenance of a specified work or the failure thereof; or

(b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission; and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) is to include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 (licences) of the Railways Act 1993.

16.  Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 15 of this Part of this Schedule) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

17.  In the assessment of any sums payable to Network Rail under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

18.  The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a) any railway property shown on the works and land plans and described in the book of reference;

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

(c) any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

19.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.

20.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 7 (benefit of order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

(a) the nature of the application to be made;

(b) the extent of the geographical area to which the application relates; and

(c) the name and address of the person acting for the Secretary of State to whom the application is to be made.

21.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 45 (certification of plans and documents) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.

PART 2 FOR THE PROTECTION OF HIGHWAYS ENGLAND

Application

1.  The provisions of this Part of this Schedule have effect, and apply to the trunk road works, unless otherwise agreed in writing between the undertaker and Highways England.

Interpretation

2.—(1) The terms used in this Part of this Schedule are as defined in article 2 (interpretation) of this Order save where inconsistent with sub-paragraph (2) which will prevail.

(2) In this Part of this Schedule—

“as built information” means one digital copy of the following information where applicable to the phase in question—

(a)

as constructed drawings in both PDF and AutoCAD DWG formats for anything designed by the undertaker in compliance with Interim Advice Note 184 or any successor document;

(b)

list of suppliers and materials used;

(c)

product data sheets and technical specifications for all materials used;

(d)

as constructed information for any utilities discovered or moved during the works;

(e)

method statements for works carried out;

(f)

in relation to road lighting, signs and traffic signals any information required by Series 1400 of the Specification for Highway Works;

(g)

organisation and methods manuals for all products used in the construction of the trunk road works;

(h)

as constructed programme;

(i)

test results and records as required by the detailed design information and during the construction phase of the trunk road works;

(j)

RSA 3 and exceptions agreed;

(k)

health and safety file; and

(l)

other such information as is necessary to enable Highways England to update all relevant databases and to ensure compliance with the Highways England Asset Data Management Manual as in operation at the relevant time including CCTV surveys.

“the bond sum” means the sum equal to 120% of the cost of the carrying out of the phase of the trunk road works concerned (to include all costs including the commuted sum) or such other sum agreed between the undertaker and Highways England;

“the cash surety” means the sum of £150,000 or such other sum agreed between the undertaker and Highways England;

“commuted sum” means such sum as calculated for each phase as provided for in paragraph 10 of this Part of this Schedule to be used to fund the future cost of maintaining the trunk road works;

“contractor” means any contractor or sub-contractor appointed by the undertaker to carry out the trunk road works or any phase of the trunk road works and approved by Highways England in accordance with paragraph 3(3) of this Part of this Schedule;

“county highway works” means those parts of works Nos. 4 and 7 shown coloured pink and yellow on the future highway maintenance plans the general arrangement of which is shown on the highways general arrangement plans and any ancillary works thereto;

“detailed design information” means drawings, specifications and calculations as appropriate for the following, and in accordance with the general arrangements of the trunk road works shown on the highway general arrangement plans unless otherwise agreed between Highways England and the undertaker—

(a)

site clearance details;

(b)

boundary, environmental and mitigation fencing;

(c)

road restraints systems and supporting Road Restraint Risk Appraisal Process assessment (RRRAP);

(d)

drainage and ducting as required by Series 500 of the Specification for Highway Works, HD43/04, IAN 147/12 and SD15 Parts 1-6 inclusive;

(e)

earthworks including supporting geotechnical assessments required by HD22/08 and any required Strengthened Earthworks Appraisal Form certification;

(f)

pavement, pavement foundations, kerbs, footways and paved areas;

(g)

traffic signs and road markings;

(h)

traffic signal equipment and associated signal phasing and timing detail;

(i)

road lighting (including columns and brackets);

(j)

electrical work for road lighting, traffic signs and signals;

(k)

highway structures and any required structural approval in principle (AIP);

(l)

landscaping;

(m)

agreed departures from the Designs Manual for Roads and Bridges standards;

(n)

a report of walking, cycling and horse riding carried out in accordance with the Design Manual for Roads and Bridges Standard KD42/17 or any successor document;

(o)

Stage 2 Road Safety Audit and exceptions agreed, and in the event that any works are not commenced within five years of the date of the Stage 1 Road Safety Audit a further Stage 1 Road Safety Audit and exceptions agreed;

(p)

utilities diversions;

(q)

topographical survey;

(r)

maintenance and repair strategy in accordance with Designing for Maintenance Interim Advice Note 69/15 or any successor document; and

(s)

health and safety information including any asbestos survey required by GD05/16 or any successor document,

where relevant to the Phase concerned;

“dilapidation survey” means a survey of the condition of the roads, bridges and retaining walls which will be the subject of the physical works comprised in the phase concerned;

“estimated costs” means the estimated costs in respect of each phase agreed in accordance with paragraph 5(1)(b) to (d) and (5) of this Part of this Schedule;

“the excess” means the amount by which Highways England estimates that the costs referred to in paragraph 5(1)(b) to (d) of this Part of this Schedule will exceed the estimated costs in accordance with paragraph 5(5)(b);

“nominated persons” means the undertaker’s representatives or the contractors’ representatives on site during the carrying out of the trunk road works as notified to Highways England from time to time;

“phase” means that part of the trunk road works which is to be carried out in separate phases within the area identified separately as Works Nos. 7 on the works plans such phasing arrangements to be as agreed with Highways England;

“programme of works” means a document setting out the sequence and timetabling of the phase of the trunk road works in question;

“Road Safety Audit” means an audit carried out in accordance with the Road Safety Audit Standard, and the approved audit team will include a member of Highways England West Midlands Asset Delivery Road Safety Team;

“Road Safety Audit Standard” means the Design Manual for Roads and Bridges Standard HD 19/15 or any successor document;

“trunk road works” means that part of Works Nos. 4 or 7 shown coloured green and blue on the future highway maintenance plans, the general arrangement of which is shown on the relevant highway general arrangement plans and any ancillary works thereto;

“utilities” means any pipes, wires, cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act; and

“winter maintenance” means maintenance of the road surface to deal with snow and ice.

Prior Approvals and Security

3.—(1) No work must commence on any phase of the trunk road works until the detailed design information and a programme of works in respect of that phase has been submitted to and approved by Highways England.

(2) Highways England must nominate a person who will be a single point of contact on behalf of Highways England for consideration of the detailed design information and who will co-ordinate the Highways England response to the details submitted.

(3) No works must commence on any phase of the trunk road works other than by a contractor employed by the undertaker for that phase but first approved by Highways England.

(4) No work must commence on any phase of the trunk road works until Highways England has agreed the bond sum for that phase and the undertaker has provided security for the carrying out of those works as provided for in paragraph 9 of this Part of this Schedule or some other form of security acceptable to Highways England.

(5) No work must commence on any phase of the trunk road works until Stage 1 and Stage 2 Road Safety Audits have been carried out in respect of that phase and all recommendations raised incorporated into an amended design approved by Highways England or secured by agreement with Highways England pursuant to article 20 (arrangements with highway authorities) or any relevant exceptions approved by Highways England.

(6) No work must commence on any phase of the trunk road works until the undertaker demonstrates to the satisfaction of Highways England that the walking, cycling and horse riding assessment and review process for that phase has been adhered to in accordance with the Design Manual for Roads and Bridges Standard HD 42/17 or any successor document.

(7) No work must commence on any phase of the trunk road works until a scheme of traffic management has been submitted by the undertaker and approved by Highways England for that phase, such scheme to be capable of amendment by agreement between the undertaker and Highways England from time to time.

(8) No work must commence on any phase of the trunk road works until stakeholder liaison has taken place for that phase in accordance with a scheme for such liaison agreed between the undertaker and Highways England.

(9) No work must commence on any phase of the trunk road works until Highways England has approved the audit brief and CVs for all road safety audits and exceptions to items raised if appropriate for that phase in accordance with the Road Safety Audit Standard.

(10) No work must commence on any phase of the trunk road works until the undertaker has agreed the commuted sum for that phase with Highways England to be calculated in accordance with paragraph 10 of this Part of this Schedule.

(11) No work must commence on any phase of the trunk road works until a dilapidation survey for that phase has been carried out by the undertaker and has been submitted to and approved in writing by Highways England.

(12) No work must commence on any phase of the trunk road works until the scope of all routine maintenance to be carried out by the undertaker during the construction of the phase concerned has been agreed in writing by Highways England, such maintenance only to include winter maintenance of the phase concerned when—

(a) access to carry out such maintenance by Highways England is not available by virtue of the works being carried out at that phase; and

(b) any winter maintenance is needed immediately prior to the opening of any carriageway to traffic when that carriageway had been closed for the purposes of the carrying out of the phase concerned.

Carrying out of works

4.—(1) The undertaker must prior to commencement of each phase of the trunk road works give Highways England 28 days’ notice in writing of the date on which that phase will start unless otherwise agreed by Highways England.

(2) The undertaker must comply with Highways England’s usual road space booking procedures prior to and during the carrying out of each phase of the trunk road works and no trunk road works for which a road space booking is required is to commence without a road space booking having first been secured such road space booking not to be unreasonably withheld or delayed.

(3) Each phase of the trunk road works must be carried out to the satisfaction of Highways England in accordance with—

(a) the relevant detailed design information and a programme of works approved pursuant to paragraph 3(1) of this Part of this Schedule or as subsequently varied by agreement between the undertaker and Highways England;

(b) the Design Manual for Roads and Bridges, the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works), all relevant interim advice notes, the Traffic Signs Manual and Traffic Signs Regulations and General Directions 2016(4) and any amendment to or replacement thereof for the time being in force save to the extent that they are inconsistent with the general arrangement of the trunk road works as shown on the highways general arrangement plans or a departure from such standards has been approved by Highways England;

(c) such approvals or requirements of Highways England that are required by the provisions of paragraph 3 of this Part of this Schedule to be in place prior to the relevant phase of the trunk road works being undertaken; and

(d) all aspects of the Construction (Design and Management) Regulations 2015(5) and in particular the undertaker, as client, must ensure that all client duties (as defined in those regulations) are undertaken to the satisfaction of Highways England.

(4) The undertaker must permit and require the contractor to permit at all reasonable times persons authorised by Highways England (whose identity must be previously notified to the undertaker by Highways England) to gain access to the trunk road works and county highway works for the purposes of inspection and supervision and the undertaker must provide to Highways England contact details of the nominated persons with whom Highways England should liaise during the carrying out of the trunk road works.

(5) At any time during the carrying out of the trunk road works the nominated persons must act upon any reasonable request made by Highways England in relation to the carrying out of the trunk road works as soon as practicable following such request being made to the nominated persons save to the extent that the contents of such request are inconsistent with or fall outside the contractor’s obligations under its contract with the undertaker or the undertaker’s obligations in this Order.

(6) If at any time the undertaker does not comply with any of the terms of this Part of this Schedule in respect of any phase of the trunk road works having been given notice of an alleged breach and an adequate opportunity to remedy it by Highways England then Highways England on giving the undertaker 14 days’ notice in writing to that effect be entitled to—

(a) (carry out and complete that phase of the trunk road works and any maintenance works which the undertaker would have been responsible for on the undertaker’s behalf; or

(b) carry out such necessary works of reinstatement of the highway and other land and premises of Highways England,

and in either case the undertaker must within 28 days of receipt of the itemised costs pay to Highways England the costs so incurred by Highways England.

(7) If at any time the undertaker in carrying out the authorised development causes any damage or disruption to the strategic road network not hereby authorised then Highways England is to give notice of such damage or disruption and allow the undertaker 14 days to remedy the problem. Should the undertaker fail to adequately remedy the problem to the satisfaction of Highways England. Highways England, on giving to the undertaker 7 days’ notice in writing to that effect, is entitled to carry out such necessary works as Highways England acting reasonably deem appropriate to remedy the damage or disruption, and the undertaker must within 28 days of receipt of the itemised costs pay to Highways England the costs so incurred by Highways England.

(8) Nothing in this Part of this Schedule prevents Highways England from carrying out any work or taking such action as deemed appropriate, without prior notice to the undertaker, in the event of an emergency or danger to the public. The cost to Highways England of such work or action being chargeable to and recoverable from the undertaker if the need for such action arises from the carrying out of the authorised development. This provision applies to all areas of the authorised development including any area of traffic management deployed under the traffic management plan approved pursuant to paragraph 3(7) of this Part of this Schedule to facilitate delivery of the authorised development.

(9) The undertaker in carrying out each phase of the trunk road works must at its own expense divert or protect all utilities as may be necessary to enable the trunk road works to be properly carried out and all agreed alterations to existing services must be carried out to the reasonable satisfaction of Highways England.

(10) During the construction of each phase of the trunk road works the undertaker is responsible for all routine maintenance at its cost within that phase (including winter maintenance when required to be undertaken by the undertaker in accordance with paragraph 3(12) of this Part of this Schedule). All routine maintenance must be carried out in accordance with the scope of routine maintenance operations agreed by Highways England in accordance with paragraph 3(12).

Payments

5.—(1) The undertaker must fund the whole of the cost of the trunk road works and all costs incidental to the trunk road works and must also pay to Highways England in respect of each phase of the trunk road works a sum equal to the whole of any costs and expenses which Highways England incur including costs and expenses for using external staff and resources as well as costs and expenses of using in-house staff and resources in relation to the trunk road works and arising out of them and their implementation, including—

(a) the checking and approval of all design work carried out by or on behalf of the undertaker for that phase;

(b) costs in relation to agreeing the programme of works for that phase;

(c) the carrying out of supervision of that phase; and

(d) all administrative costs in relation to paragraphs (a) and (b),

together comprising “the estimated costs”.

(2) The sums referred to in sub-paragraph (1) do not include any sums payable from the undertaker to the contractor but do include any value added tax which is payable by Highways England in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs.

(3) The undertaker must pay to Highways England upon demand and prior to such costs being incurred the total costs that Highways England believe will be properly and necessarily incurred by Highways England in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the trunk road works provided that this paragraph does not apply to the making of any orders which duplicate orders contained in this Order.

(4) The undertaker must make the payments of the estimated costs as follows—

(a) the undertaker must pay a sum equal to the anticipated cost of the tasks referred to in sub-paragraph (1)(a), (b) and (d) to Highways England prior to Highways England undertaking those tasks;

(b) the undertaker must pay a sum equal to the anticipated cost of the tasks referred to in sub-paragraph (1)(c) prior to commencing that phase;

(c) if at any time after the payment in respect of a phase referred to in sub-paragraph (4)(a) and (b) has become payable and Highways England reasonably estimates that the costs in respect of that phase referred to in sub-paragraph (1) will exceed the estimated costs for that phase it may give notice to the undertaker of the amount by which it then reasonably estimates those costs will exceed the estimated costs (“the excess”) and the undertaker must pay to Highways England within 28 days of the date of that notice a sum equal to the excess.

(5) Within 91 days of the issue of the handover certificate for each phase of the trunk road works in accordance with paragraph 7 of this Part of this Schedule, Highways England must give the undertaker a final account of the costs referred to in sub-paragraph (1) and within 28 days from the expiry of the 91-day period—

(a) if the account shows a further sum as due to Highways England the undertaker must pay to Highways England the sum shown due to it in that final account; and

(b) if the account shows that the payment or payments previously made have exceeded those costs Highways England must refund the difference to the undertaker.

(6) If any payment due under any of the provisions of this Part of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the rate payable in respect of compensation under section 32 (rate of interest after entry on land) of the 1961 Act for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate

6.—(1) As soon as—

(a) each phase of the trunk road works has been completed; and

(b) a Stage 3 Road Safety Audit for that phase has been carried out and any resulting recommendations complied with Highways England and any exceptions agreed,

Highways England must issue a provisional certificate of completion in respect of that phase, such certificate not to be unreasonably withheld or delayed.

Handover certificate and defects period

7.—(1) As soon as, in respect of a phase—

(a) the undertaker has carried out a dilapidation survey in accordance with paragraph 3(11) of this Part of this Schedule and completed any remedial works necessary to bring that area into as good a condition as when it was originally surveyed, such works to be first agreed with Highways England;

(b) the undertaker has provided a plan clearly identifying the extent of any land which is to become highway maintainable at public expense together with any ancillary equipment that will become the responsibility of Highways England; and

(c) the as built information has been provided to Highways England,

Highways England must forthwith issue a handover certificate in respect of that phase such certificate not to be unreasonably withheld or delayed.

(2) The undertaker must at its own expense remedy any defects in any phase of the trunk road works as are reasonably required to be remedied by Highways England during a period of 12 months from the date of the handover certificate in respect of that phase. All identified defects are to be remedied in accordance with the following timescales—

(a) in respect of matters of urgency, within 24 hours of receiving notification (urgency to be determined at the absolute discretion of Highways England);

(b) in respect of matters which Highways England consider to be serious defects or faults, within 14 days of receiving notification or, if a road space booking is required at the time when the road space is available, whichever is the later; and

(c) in respect of all other defects notified to the undertaker, within 4 weeks of receiving notification or, if a road space booking is required, at the time when the road space is available, whichever is the later.

(3) Following the issue of the handover certificate in respect of a phase, Highways England is to be responsible for the trunk road works within that phase which will thereafter be maintained by and at the expense of Highways England.

(4) The undertaker must submit Stage 4 Road Safety Audits for each phase as required by and in line with the timescales stipulated in the Road Safety Audit Standard. The undertaker must comply with the findings of the Stage 4 Road Safety Audits and be responsible for all costs of and incidental to such.

Final certificate

8.  Highways England must issue the final certificate in respect of each phase at the expiration of the 12-month period in respect of that phase referred to in paragraph 7(2) of this Part of this Schedule or if later on the date on which any defects or damage arising from defects during that period have been made good to the reasonable satisfaction of Highways England such certificate not to be unreasonably withheld or delayed.

Security

9.—(1) Subject to paragraph 3(4) of this Part of this Schedule the undertaker must provide security for the carrying out of the trunk road works as follows—

(a) prior to the commencement of each phase, the trunk road works within that phase must be secured by a bond from a bondsman first approved by Highways England drafted substantially as detailed in Form 1 contained in paragraph 17 of this Part of this Schedule, or such other form that may be agreed between the undertaker and Highways England, to indemnify Highways England against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of that phase under the provisions of this Part of this Schedule provided that the maximum liability of the bond does not exceed the bond sum relating to that phase; and

(b) prior to the commencement of the trunk road works the undertaker must provide the cash surety which may be utilised by Highways England in the event of the undertaker failing to meet its obligations to make payments under paragraph 5 of this Part of this Schedule or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker (which will be a single cash surety for the entirety of the trunk road works).

(2) Each bond sum and the cash surety (the latter in respect of the final phase only) must be progressively reduced as follows—

(a) on receipt of written confirmation (including receipt of receipted invoices evidencing payments made by the undertaker to the contractors) from the undertaker of the payments made from time to time to the contractor Highways England must in writing authorise the reduction of the bond sum by such proportion of the bond sum as amounts to 80% of those payments provided that an evaluation of the trunk road works completed and remaining has been carried out by the undertaker and audited and agreed by Highways England to ensure that the stage of completion of the works is relative to the payments made by the undertaker to the contractors. Highways England will only be required to provide the said authorisation if it is satisfied that the monies remaining secured by the bond sum will be sufficient to cover all remaining costs and liabilities anticipated to be incurred in completing the trunk road works plus an additional 20%;

(b) within 20 working days of completion of each phase of the trunk road works (as evidenced by the issuing of the provisional certificate in respect of that phase in accordance with paragraph 6(1) of this Part of this Schedule) Highways England must in writing release the bond provider from its obligations in respect of 80% of the bond sum relating to that phase (“the revised bond sum”) save insofar as any claim or claims have been made against the bond and/or liability on its part has arisen prior to that date in which case Highways England will retain a sufficient sum to meet all necessary costs; and

(c) within 20 working days of the issue of the final certificate for each phase of the trunk road works referred to in paragraph 8 of this part of this Schedule, Highways England must in writing release the bond provider from its obligations in respect of the revised bond sum relating to that phase and (in respect of the final phase) release the remainder of the cash surety to the undertaker save insofar as any claim or claims have been made against the bond or liability on its part has arisen prior to that date in which case Highways England will retain a sufficient sum to meet all necessary costs.

Commuted sums

10.  The undertaker must pay to Highways England the commuted sum for the relevant phase calculated in accordance with FS Guidance S278 Commuted Lump Sum Calculation dated 18th January 2010 within 28 days of the date of that phase of the trunk road works becomes maintainable by Highways England in accordance with paragraph 7(3) of this Part of this Schedule.

Insurance

11.  The undertaker must prior to commencement of the trunk road works effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the trunk road works or any part thereof by the undertaker.

Indemnification

12.—(1) The undertaker must in relation to the carrying out of the trunk road works take such precautions for the protection of the public and private interest as would be incumbent upon it if it were the highway authority and must indemnify Highways England from and against all costs expenses damages losses and liabilities arising from or in connection with or ancillary to any claim demand action or proceedings resulting from the design and carrying out of the trunk road works provided that—

(a) the foregoing indemnity does not extend to any costs, expenses, liabilities and damages caused by or arising out of the neglect or default of Highways England or its officers, servants, agents or contractors or any person or body for whom it is responsible;

(b) Highways England must notify the undertaker immediately upon receipt of any claim; and

(c) Highways England must, following the acceptance of any claim, notify the quantum to the undertaker in writing and the undertaker must within 14 days of the receipt of such notification pay to Highways England the amount specified as the quantum of such claim.

(2) The undertaker must notify Highways England of the intended date of opening of each phase to public traffic not less than 14 days in advance of the intended date and the undertaker must notify Highways England of the actual date that each phase is open to public traffic on each occasion within 14 days of that occurrence.

Warranties

13.  The undertaker must procure warranties from the contractor and designer of each phase to the effect that all reasonable skill care and due diligence will be exercised in designing and constructing that phase including the selection of materials, goods, equipment and plant such warranties to be provided to Highways England before that phase commences.

Land transfer

14.—(1) Following the issuing of the final certificates for all the trunk road works Highways England may serve notice on the undertaker that it wishes to take a freehold transfer of land within the then extent of highway land which is not in the ownership of Highways England but has been acquired by the undertaker for the purposes of carrying out the trunk road works.

(2) If the undertaker receives a notice under sub-paragraph (1), the undertaker must co-operate in a freehold transfer of the land which is the subject of the notice and complete such transfer as soon as reasonably practicable at no cost to Highways England which includes the undertaker being responsible for the reasonable legal costs incurred by Highways England in connection with such transfer.

Approvals

15.—(1) Any approvals, certificates, consents or agreements required of or sought from or with Highways England in accordance with the provisions of this Part of this Schedule must not be unreasonably withheld or delayed and must be given in writing.

(2) If Highways England fail to notify the undertaker of its decision in respect of any approval, consent or agreement in accordance with the provisions of this Part of this Schedule within 28 days of the specified day, the undertaker may serve upon Highways England written notice requiring Highways England to give their decision within a further 28 days beginning on the date upon which Highways England received written notice from the undertaker. Subject to sub-paragraph (3), if by the expiry of the further 28 days Highways England has failed to notify the undertaker of its decision, Highways England is deemed to have given the relevant approval, consent or agreement.

(3) Any further notice given by the undertaker to Highways England under sub-paragraph (2) must include a written statement that the provisions of sub-paragraph (2) apply to the relevant approval, consent or agreement.

(4) In this paragraph “specified day” means—

(a) the day on which particulars of the matter are submitted to Highways England under the provisions of this Part of this Schedule; or

(b) the day on which the undertaker provides Highways England with any further particulars of the matter that have been reasonably requested by Highways England within 14 days of the date in sub-paragraph (2)(a),

whichever is the later.

Expert Determination

16.—(1) Article 47 (arbitration) does not apply to this Part of this Schedule except in respect of sub-paragraph (5).

(2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 21 days of the notification of the dispute.

(4) The expert must—

(a) invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

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

(d) give reasons for the decision.

(5) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

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

Bond form

17.  Form 1 as referred to in paragraph 9—

PART 3 FOR THE PROTECTION OF THE LOCAL HIGHWAY AUTHORITY

Application

1.  The provisions of this Part of this Schedule have effect, and apply to the county highway works, unless otherwise agreed in writing between the undertaker and the local highway authority.

Interpretation

2.—(1) The terms used in this Schedule are as defined in article 2 (interpretation) of this Order save where inconsistent with sub-paragraph (2) which will prevail.

(2) In this Schedule—

“approval in principle” means the document, which records the agreed basis and criteria for the detailed design or assessment of a highway structure.

“as built information” means one electronic copy of the following information where applicable to the phase in question—

(a)

as constructed drawings in both PDF AutoCAD DWG, MX and GIS formats for anything designed by the undertaker;

(b)

list of suppliers and materials, test results and CCTV surveys;

(c)

product data sheets, technical specifications for all materials used;

(d)

as constructed information for any utilities discovered or moved during the works

(e)

method statements for works carried out;

(f)

in relation to road lighting, signs and traffic signals any information required by Series 1400 of the Specification for Highway Works;

(g)

organisation and methods manuals for all products used;

(h)

as constructed programme;

(i)

health and safety file under the Construction (Design and Management) Regulations 2015;

(j)

test results and records; and

(k)

other such information as is readily available to the undertaker and may be reasonably required by the local highway authority to be used to update any relevant databases;

“bond” means a bond from a surety approved by the local highway authority for the bond sum drafted substantially as detailed in Form 2 contained in paragraph 15 of this Part of this Schedule;

“the bond sum” means the sum equal to 120% of the estimated costs of the carrying out of the phase of the county highway works concerned or such other sum agreed between the undertaker and the local highway authority;

“commuted sum” means such sum as calculated by the local highway authority in accordance with paragraph 7(2)(c) of this Part of this Schedule for any structure within each phase to be used to fund the future cost of maintaining such structures;

“contractor” means any contractor or sub-contractor appointed by the undertaker to carry out the county highway works or any phase of the county highway works and approved by the local highway authority in accordance with paragraph 3(2) of this Part of this Schedule;

“county highway works” means those parts of Works Nos. 4 and 7 coloured pink and yellow on the future highway maintenance plans the general arrangement of which is shown on the highway general arrangement plans and any ancillary works;

“defects period” means a period of twelve months from the date of the provisional certificate or longer period if agreed between the undertaker and the local highway authority in which all defects arising from the county highway works must be rectified by the undertaker;

“detailed design information” means the following drawings, specifications and other information which must be in accordance with the general arrangements shown on the highway general arrangements plans unless otherwise agreed between the local highway authority and the undertaker—

(a)

site clearance details;

(b)

boundary environmental and mitigation fencing;

(c)

road restraint systems (vehicle and pedestrian) and supporting Road Restraint Risk Assessment Process assessment (RRRAP);

(d)

drainage and ducting;

(e)

earthworks including supporting geotechnical assessments required by HD22/08 and any required Strengthened Earthworks Appraisal Form certification;

(f)

kerbs, footways and paved areas;

(g)

traffic signs, signals and road markings;

(h)

road lighting (including columns, brackets and bat hop-overs);

(i)

electrical work for road lighting and traffic signs;

(j)

highway structures and any required certification in accordance with BD2/12;

(k)

agreed departures from Standard;

(l)

landscaping;

(m)

utilities diversions; and

(n)

wildlife crossings,

where relevant to the phase concerned;

“estimated costs” means the estimated costs in respect of each phase agreed in accordance with paragraph 5(1) of this Part of this Schedule;

“the excess” means the amount by which the county highway authority estimates that the costs referred to in paragraph 5(1) of this Part of this Schedule will exceed the estimated costs in accordance with paragraph 5(5)(b) of this Part of this Schedule;

“final certificate” means the certificate issued by the local highway authority to the undertaker for each phase to certify that the defects period has been completed to the satisfaction of the local highway authority;

“nominated persons” means the undertaker’s representatives or the contractors’ representatives on site during the carrying out of the county highway works;

“phase” means a phase of the county highway works which are to be carried out in separate phases such phases to be agreed with the local highway authority;

“programme of works” means a document setting out the sequence and timetabling of works for the phase in question;

“provisional certificate” means the certificate issued by the local highway authority to the undertaker for each phase of the county highway works to certify that in the opinion of the local highway authority the county highway works perform the function for which they were intended and are complete except for minor items not affecting safety;

“Road Safety Audit” means an audit carried out in accordance with the Road Safety Audit Standard;

“Road Safety Audit Standard” means the Design Manual for Roads and Bridges Standard GG119 or any successor document;

“satisfaction of the local highway authority” means the normal standards of the local highway authority in approving the design construction and/or rectification of defects of equivalent highway works applied elsewhere within their administrative area; and

“technical approval authority” means the organisation responsible for agreeing the approval in principle and subsequently accepting the relevant certificates for all highway structures; and

“utilities” means any pipes wires cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act.

Prior Approvals and Security

3.—(1) The local highway authority is the technical approval authority in respect of all highway structures included in the county highway works, including the bridge which will carry the A5/A449 link road over the railway and canal, and the approval in principle for all such highway structures must be submitted to the local highway authority prior to any work commencing on the detailed design for any such highway structure.

(2) No work must commence on any phase until the detailed design information and a programme of works in respect of that phase has been submitted to and approved by the local highway authority.

(3) No works must commence on any phase other than by a contractor employed by the undertaker but first approved by the local highway authority.

(4) No work must commence on any phase until the undertaker has provided security for the carrying out of those works as provided for in paragraph 9 of this Part of this Schedule or some other form of security acceptable to the local highway authority.

(5) No work must commence on any phase until a Stage 2 Road Safety Audit has been carried out in respect of that phase and as necessary all issues raised incorporated into an amended design approved by the local highway authority or any relevant exceptions approved by the local highway authority.

(6) No work must commence on any phase until traffic management provisions have been agreed with the local highway authority.

(7) No work must commence on any phase until any land within that phase not within the public highway which will become public highway as a result of the authorised works is in the ownership of the undertaker.

Carrying out of works

4.—(1) The undertaker must prior to commencement of each phase give the local highway authority 14 days’ notice in writing of the proposed date on which that phase will start.

(2) The undertaker must give the local highway authority 14 days’ notice of the road space required for the carrying out of each phase.

(3) Each phase must be carried out to the satisfaction of the local highway authority in accordance with—

(a) the relevant detailed design information and a programme of works approved pursuant to paragraph 3(1) of this Part of this Schedule or as subsequently varied by agreement between the undertaker and the local highway authority;

(b) the Design Manual for Roads and Bridges, the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works) and any amendment to or replacement thereof for the time being in force save to the extent that they are inconsistent with the Highway General Arrangement Plans (Documents 2.9A – 2.9K) or a departure from such standards has been approved by the local highway authority or such approvals or requirements of the local highway authority in paragraph 3 of this Part of this Schedule that need to be in place prior to the works being undertaken; and

(c) all aspects of the Construction (Design and Management) Regulations 2015 and in particular the undertaker must ensure that all client duties (as defined in those regulations) are satisfied.

(4) The undertaker must permit and require the contractor to permit at all reasonable times persons authorised by the local highway authority (whose identity must have been previously notified to the undertaker by the local highway authority) to gain access to the county highway works for the purposes of inspection and supervision and the undertaker must provide to the local highway authority contact details of the nominated persons with whom the local highway authority should liaise during the carrying out of the county highway works.

(5) The undertaker must permit attendance by representatives of the local highway authority at all pre-contract and progress meetings held in relation to each phase.

(6) The undertaker must provide shared working facilities including access to welfare and office facilities for the local highway authority for the duration of each phase including the defects period unless otherwise agreed.

(7) The undertaker must during the period in which the county highway works are carried out maintain the flow of traffic and safeguard the passage of pedestrians along any street on which the county highway works are being carried out and maintain, or provide temporary alternative for all accesses (including, for the avoidance of doubt, private accesses) affected thereby or in the vicinity thereof.

(8) At any time during the carrying out of the county highway works the nominated persons must act upon any reasonable request made by the local highway authority in relation to the carrying out of the county highway works as soon as practicable following such request being made to the nominated persons save to the extent that the contents of such request are inconsistent with or fall outside the contractor’s obligations under its contract with the undertaker or the undertakers’ obligations in this Order.

(9) If at any time the undertaker does not comply with any of the terms of this Part of this Schedule in respect of any phase having been given one month’s notice of an alleged breach by the local highway authority, then the undertaker must within 14 days of receipt of a demand by the local highway authority pay to the county highway authority the sum of the local highway authority’s proper estimate of completing that phase and any maintenance works which the undertaker would have been responsible for, and if the undertaker fails to pay the demand from the local highway authority within 14 days, the local highway authority is entitled to use the bond to meet the cost of completing the county highway works on behalf of the undertaker.

(10) Nothing in this Part of this Schedule prevents the local highway authority from carrying out any work or taking such action as deemed appropriate, without prior notice to the undertaker, in the event of an emergency or danger to the public. The cost to the local highway authority of such work or action being chargeable to and recoverable from the undertaker if the need for such action arises from the carrying out of the county highway works, and the local highway authority is entitled to utilise the bond should the undertaker fail to pay any costs arising from this sub-paragraph within 14 days of a demand for such costs being made by the local highway authority.

(11) The undertaker in carrying out each phase must at its own expense divert or protect all utilities as may be necessary to enable the local highway works to be properly carried out and all agreed alterations to existing services must be carried out to the satisfaction of the local highway authority acting reasonably.

Payments

5.—(1) The undertaker must fund the whole of the cost of the county highway works and all costs incidental to the county highway works and must also pay to the local highway authority in respect of each phase in accordance with sub-paragraph (4) a sum equal to the whole of any costs and expenses which the local highway authority incur, including costs and expenses for using external staff and resources as well as costs and expenses of using in-house staff and resources in relation to the county highway works and arising out of them and their implementation including—

(a) the checking and approval of all design work carried out by or on behalf of the undertaker for that phase;

(b) costs in relation to agreeing the programme of works for that phase;

(c) the carrying out of supervision of that phase; and

(d) all legal and administrative costs in relation to paragraphs (a) and (b),

together comprising “the estimated costs”.

(2) The undertaker must pay to the local highway authority upon demand the total costs properly and necessarily incurred by the local highway authority in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the county highway works provided that this paragraph does not apply to the making of any orders which duplicate orders contained in this Order.

(3) The undertaker and the local highway authority must agree a schedule of the estimated costs to be incurred pursuant to sub-paragraph (1) in respect of each phase prior to the commencement of that phase.

(4) The undertaker must make the payments referred to in sub-paragraph (1) as follows—

(a) the undertaker must pay a sum equal to the agreed estimated costs in respect of a phase prior to commencing that phase; and

(b) if at any time or times after the payment in respect of a phase referred to in sub-paragraph (4)(a) has become payable the local highway authority reasonably estimates that the costs in respect of that phase referred to in sub-paragraph (1) will exceed the estimated costs for that phase it may give notice to the undertaker of the amount by which it then reasonably estimates those costs will exceed the estimated costs (“the excess”) and the undertaker must pay to the local highway authority within 28 days of the date of that notice a sum equal to the excess.

(5) If the local highway authority has received the as built information within 91 days of the issue of the final certificate for the final phase of the A5/A449 link road pursuant to paragraph 7 of this Part of this Schedule, or for each phase pursuant to paragraph 8 of this Part of this Schedule, as the case may be, the local highway authority must give the undertaker a final account of the costs referred to in sub-paragraph (1) and within 28 days from the expiry of the 91-day period—

(a) if the account shows a further sum as due to the local highway authority the undertaker must pay to the local highway authority the sum shown due to it in that final account; and

(b) if the account shows that the payment or payments previously made have exceeded those costs the local highway authority must refund the difference to the undertaker.

(6) If any payment due under any of the provisions of this Part of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the Base Rate of Lloyds Bank Plc for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate and defects period

6.—(1) As soon as each phase has been completed and a Stage 3 Road Safety Audit for that phase has been carried out and any resulting recommendations complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a provisional certificate of completion in respect of that phase, such certificate not to be unreasonably withheld or delayed.

(2) The undertaker must at its own expense remedy any defects in that phase identified by the local highway authority to the satisfaction of the local highway authority acting reasonably during the defects period in respect of that phase.

(3) The undertaker must submit Stage 4(a) (12 months after completion of each phase) and Stage 4(b) (36 months after completion of each phase) Road Safety Audits as required by and in line with the timescales stipulated in the Road Safety Audit Standard. The undertaker must at its own expense comply with the findings of the Stage 4(a) and 4(b) Road Safety Audits to the satisfaction of the local highway authority acting reasonably.

(4) The local highway authority must approve the audit brief and CVs for all Road Safety Audits and exceptions to items raised if appropriate in accordance with the Road Safety Audit Standard.

Final certificate – except for A5/A449 link road

7.—(1) The provisions of this paragraph apply to all the county highway works with the exception of the A5/A449 link road.

(2) The undertaker must apply to the local highway authority for the issue of the final certificate in respect of each phase of the works to which this paragraph applies at the expiration of the defects period in respect of that phase) or if later on the date on which any defects or damage arising from defects during the defects period have been made good to the satisfaction of the local highway authority acting reasonably, and when making such application the undertaker must submit to the local highway authority—

(a) as built information of the relevant phase; and

(b) a plan, for approval, clearly identifying the extent of any land which is to be highway maintainable at public expense by the local highway authority which must be in accordance with the detailed design information but reflecting the as built outcome.

(3) If the provisions of paragraph 7(2) of this Part of this Schedule are complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a final certificate for the phase concerned, such certificate not to be unreasonably withheld or delayed.

Final certificate – A5/A449 link road

8.—(1) The provisions of this paragraph apply only to the A5/A449 link road.

(2) The undertaker must apply to the local highway authority for the issue of the final certificate in respect of the entirety of the A5/A449 link road at the expiration of the defects period of the last phase of the A5/A449 link road to be constructed or if later on the date on which any defects or damage arising from defects during the defects period of the last phase of the A5/A449 link road to be constructed have been made good to the satisfaction of the local highway authority acting reasonably, and when making such application the undertaker must—

(a) submit to the local highway authority as built information of the relevant phase;

(b) submit to the local highway authority a plan clearly identifying the extent of any land which is to be highway maintainable at public expense by the county highway authority which must be in accordance with the detailed design information but reflecting the as built outcome; and

(c) pay to the local highway authority the commuted sum calculated in accordance with the versions of the ADEPT Commuted Sums Calculator and the ADEPT Bridge Sums Guidance in force at the date on which the commuted sum is calculated.

(3) If the provisions of paragraph 9(2) of this Part of this Schedule are complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a final certificate for the entirety of the A5/A449 link road, such certificate not to be unreasonably withheld or delayed.

Security

9.—(1) Prior to the commencement of each phase the county highway works within that phase must be secured by a bond or such other form of bond or other security that may be agreed between the undertaker and the local highway authority to indemnify the local highway authority against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of that phase under the provisions of this Part of this Schedule provided that the maximum liability of the bond or other form of security does not exceed the bond sum relating to that phase.

(2) In respect of all the county highway works, with the exception of the A5/A449 link road, each bond sum must be automatically reduced as follows—

(a) on the issue of the provisional certificate for each phase the bond sum must automatically reduce by 80% of the bond sum relating to that phase save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date; and

(b) on the issue of the final certificate for each phase the bond/security provider must automatically be released from all its obligations in respect of the bond or other form of security relating to that phase save insofar as any claim or claims have been made against the Bond or other form of security or liability on its part has arisen prior to that date.

(3) In respect of the A5/A449 link road the bond sum for each phase of the A5/A449 link road must be reduced as follows—

(a) in respect of any phase which includes any part of the new bridge to be provided over the railway and canal on the issue of the provisional certificate for that phase the bond sum must be reduced by such percentage as the undertaker and the local highway authority agree save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date;

(b) in respect of all phases of the A5/A449 link road to which paragraph (a) does not apply, on the issue of the provisional certificate for that phase the bond sum must be reduced by such percentage as the undertaker and the local highway authority agree subject to a minimum reduction to 50% of the bond sum save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date; and

(c) on the issue of the final certificate for the A5/A449 link road in accordance with paragraph 8 of this Part of this Schedule the bond/security provider must automatically be released from all its obligations in respect of all bonds or other form of security relating to the A5/A449 link road save insofar as any claim or claims have been made against the bond or other form of security or liability on its part has arisen prior to that date.

Insurance

10.  The undertaker must prior to commencement of the county highway works effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the county highway works or any part thereof by the undertaker.

Indemnification

11.—(1) The undertaker must in relation to the carrying out of the county highway works take such precautions for the protection of the public and private interest as would be incumbent upon it if it were the highway authority and must indemnify the local highway authority from and against all costs, expenses, damages, losses and liabilities arising from or in connection with or ancillary to any claim, demand, action or proceedings resulting from the design and carrying out of the county highway works prior to the issue of each defects certificate provided that the foregoing indemnity does not extend to any costs, expenses, liabilities and damages caused by or arising out of the neglect or default of the local highway authority or its officers, servants, agents or contractors or any person or body for whom it is responsible.

(2) The undertaker must pay to the local highway authority each sum (if any) that is due to the local highway authority and certified as correct by the local highway authority arising from paragraph 12 of this Part of this Schedule within 28 days of receiving written notice from the local highway authority to do so and where payment is overdue interest will be payable calculated on a daily basis at a rate of 1% above the Base Rate of Lloyds Bank Plc.

(3) The undertaker must notify the local highway authority of the intended date of opening of each phase to public traffic not less than 14 days in advance of the intended date.

(4) The undertaker must notify the local highway authority of the actual date that each phase is open to public traffic on each occasion within 14 days of that occurrence.

Warranties

12.  The undertaker must procure warranties from the contractor and designer of each phase to the effect that all reasonable skill, care and due diligence will be exercised in designing and constructing that phase including the selection of materials, goods, equipment and plant, such warranties to be provided to the local highway authority before that phase commences.

Approvals

13.—(1) Any approvals, certificates, consents or agreements required of, or sought from or with the local highway authority pursuant to the provisions of this Schedule must not be unreasonably withheld or delayed and must be given in writing save that any such approval, certificate, consent or agreement is deemed to have been given if it is neither given nor refused within 42 days of the specified day.

(2) In this paragraph “specified day” means—

(a) the day on which particulars of the matter are submitted to the local highway authority under the provisions of this Part of this Schedule; or

(b) the day on which the undertaker provides the local highway authority with any further particulars of the matter that have been reasonably requested by the local highway authority within 28 days of the date in paragraph (a),

whichever is the later.

Expert Determination

14.—(1) Article 47 (arbitration) does not apply to this Part of this Schedule except in respect of sub-paragraph (7).

(2) Any difference under this Part of this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

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

(5) The expert must—

(a) invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

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

(e) in respect of decisions on the level of the reductions of the bond sums pursuant to paragraph 9(3)(a) and (b) of this Part of this Schedule the need to ensure that the financial risk to the local highway authority is no greater than that which would ordinarily be accepted in relation to highway improvements required to facilitate private developments in which the local highway authority is carrying out its statutory duty as local highway authority, but having regard to any specific circumstances relating to the A5/A449 link road; and

(f) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

Bond form

15.  Form 2 as referred to in paragraph 2—

PART 4 FOR THE PROTECTION OF WESTERN POWER DISTRIBUTION LIMITED

1.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and WPD.

2.  In this Part of this Schedule—

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

“alternative rights” means all necessary legal easements, consents or permissions required by WPD to permit a diversion of apparatus or to authorise the construction of alternative apparatus;

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

“functions” includes powers and duties;

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

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

“specified work” means so much of any of the authorised development that is carried out within 6 metres of any apparatus; and

“WPD” means Western Power Distribution Limited (West Midlands) Plc (Company Registration Number 03600574) whose registered office is at Avonbank, Feeder Road, Bristol, BS2 0TB.

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

4.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any apparatus otherwise than by agreement.

5.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that WPD’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of WPD to maintain that apparatus in that land or gain access to it must not be extinguished without the prior consent of WPD until alternative apparatus has been constructed and is in operation and access to it has been provided if necessary all to the reasonable satisfaction of WPD.

(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, it must give to WPD written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order WPD reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (6), afford to WPD the necessary facilities and rights for the construction of alternative apparatus in other land owned or controlled by the undertaker and subsequently for the maintenance of that apparatus.

(3) If, for the purpose of executing any works, the undertaker requires to remove or divert any apparatus placed within the Order land, and alternative apparatus or any part of such alternative apparatus is to be constructed in land other than the Order land as a consequence of the removal or diversion of apparatus, then the undertaker must use reasonable endeavours to obtain alternative facilities and rights in other land in which the alternative apparatus is to be constructed.

(4) Should the undertaker not be able to obtain the alternative rights required under sub-paragraph (3) then the undertaker and WPD must use reasonable endeavours to agree a reasonably practicable and mutually agreeable alternative engineering solution which does not require alternative apparatus to be constructed in land other than Order land and does not require alternative rights.

(5) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker and the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (3) and an alternative engineering solution cannot be agreed in accordance with sub-paragraph (4), WPD must on receipt of written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to a requirement on WPD to use its compulsory purchase powers to this end unless WPD elects to do so.

(6) Any alternative apparatus required pursuant to sub-paragraphs (2) or (3) must be constructed in such manner and in such line or situation as may be agreed between WPD and the undertaker or in default of agreement settled in accordance with paragraph 10 of this Part of this Schedule.

(7) WPD must, after the alternative apparatus to be provided or constructed has been agreed or settled pursuant to paragraph 10 of this Part of this Schedule, and after the grant to WPD of any such facilities and rights as are referred to in sub-paragraphs (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.

(8) Regardless of anything in sub-paragraph (7), if the undertaker gives notice in writing to WPD that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by WPD, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of WPD.

(9) Nothing in sub-paragraph (8) 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 600 millimetres of the apparatus.

6.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to WPD facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and WPD or in default of agreement settled in accordance with paragraph 10 of this Part of this Schedule.

(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, the expert must—

(a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in the land for which the alternative apparatus is to be substituted.

(3) 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 expert less favourable on the whole to WPD than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the expert must make provision for the payment of compensation by the undertaker to WPD as appears to the expert to be reasonable having regard to all the circumstances of the particular case.

7.—(1) Not less than 60 days before the undertaker intends to start the execution of any specified work, the undertaker must submit to WPD a plan, section and description of the works to be executed. Any submission must note the time limits imposed on WPD under sub-paragraph (3).

(2) Subject to sub-paragraph (3) the undertaker must not commence any works to which sub-paragraph (1) applies until WPD has given written approval of the submitted plan, and identified any reasonable requirements it has in relation to the carrying out of the works, such approval not to be unreasonably withheld or delayed.

(3) If by the expiry of 60 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted WPD has not advised the undertaker in writing of its approval or disapproval of the plans and any reasonable requirements for the alteration or otherwise for the protection of the apparatus, or for securing access to it, it is deemed to have approved the plans, sections or descriptions as submitted.

(4) The works referred to in sub-paragraph (1) must be executed in accordance with the plan, section and description approved under sub-paragraph (3) and in accordance with any reasonable requirements as may be notified in accordance with sub-paragraph (2) by WPD, and WPD is entitled to watch and inspect the execution of those works.

(5) At all times when carrying out any works authorised under the Order the undertaker must comply with WPD’s “Avoidance of Danger from Electricity Overhead Lines and Underground Cables” (2014), the Energy Network Association’s “A Guide to the Safe Use of Mechanical Plant in the Vicinity of Electricity Overhead Lines” (undated), the Health and Safety Executive’s GS6 “Avoiding Danger from Overhead Power Lines” and the Health and Safety Executive’s “HSG47 Avoiding Danger from Underground Services” (3rd edition, 2014) as the same may be replaced from time to time.

(6) If in consequence of the works proposed by the undertaker, WPD reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement in accordance with sub-paragraph (2), the provisions of this paragraphs apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2) of this Part of this Schedule.

(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 60 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(8) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to WPD notice as soon as is reasonably practicable, submit a plan, section and description of those works to WPD as soon as reasonably practicable subsequently and comply with sub-paragraph (4) in so far as is reasonably practicable in the circumstances.

8.  The undertaker must repay to WPD the reasonable expenses incurred by WPD in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new connection arising as a result of the powers conferred upon the undertaker pursuant to this Order.

9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any specified work, any damage is caused to any apparatus (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 WPD, or there is any interruption in any service provided, or in the supply of any goods by, WPD, the undertaker is to—

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

(b) make reasonable compensation to WPD for any other expenses, loss, damages, penalty or costs incurred by WPD, by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (l) 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 WPD, its officers, servants, contractors or agents.

(3) WPD 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, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Expert determination

10.—(1) Subject to sub-paragraph (7), article 47 (arbitration) does not apply to this Part of this Schedule.

(2) Any difference under this Part of this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

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

(5) The expert must—

(a) invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

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

(e) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

PART 5 FOR THE PROTECTION OF USERS OF THE GAILEY PARK ROUNDABOUT

1.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the parties individually.

2.  In this Part of this Schedule—

“Gailey Park roundabout” means the roundabout which is to be altered as part of Works No. 10b over which the parties have rights of access;

“Gravelly Way” means that part of Gravelly Way to be permanently stopped up as identified in Part 1 of Schedule 4 (streets to be permanently stopped up);

“new access road” means the new private road to connect the Gailey Park roundabout and the A5/A449 link road;

“parties” means the parties identified in paragraph 13 of this Part of this Schedule who have a right of way over the Gailey Park roundabout and such other persons who may acquire such interest, and “party” is to be construed accordingly;

“parties’ premises” means the premises owned or occupied by the parties whose access is wholly or partly reliant on the Gailey Park roundabout; and

“vehicular access” means access for any type of vehicle which is able to access the parties’ premises at the time this Order was made.

Maintaining access rights

3.—(1) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access at any time to any part of the parties’ premises nor materially hinder or materially affect the standard, type and extent of access to the parties’ premises without the consent of the party concerned, except in the case of emergency (and in the event of such emergency the undertaker must ensure that such prevention is minimised in scope and duration so far as is reasonably practicable).

(2) The undertaker must at all times maintain vehicular and pedestrian access for the parties and those wishing to visit the parties’ premises from the public highway at any time through the Gailey Park roundabout either utilising the existing Gravelly Way or from the A5/A449 link road or a temporary alternative suitable for such purpose (and in the event that a temporary alternative is to be provided, the undertaker must ensure that such temporary alternative is provided for the minimum duration reasonably practicable).

(3) The undertaker must not in the exercise of the powers conferred by this Order open the new access road unless and until the section of the A5/A449 link road between the new access road and the A449 has been practically completed and opened to the public.

Design details

4.—(1) The undertaker must before commencing Works No. 10b provide a copy of the detailed plans and specifications of the new access road, the Gailey Park roundabout, any permanent and/or temporary accesses to the parties’ premises, all existing and proposed service media affected by Works No. 10b and all proposed traffic management arrangements to the parties in draft and allow the parties 28 days to comment on them, and following receipt of all information reasonably required by the parties the undertaker must have regard to any reasonable comments made by the parties in respect of the detailed design of the new access road, the Gailey Park roundabout, any permanent and/or temporary accesses to the parties’ premises, all proposed service media affected by Works No, 10b and all proposed traffic management arrangements.

(2) The undertaker must repay to the parties the reasonable and proper fees, costs, charges and expenses reasonably incurred by the parties in respect of their review of the details submitted by the undertaker pursuant to sub-paragraph (1) and any subsequent discussions regarding the specification of the new access road within 28 days of written demand.

5.  The undertaker will procure warranties in favour of the parties from all main contractors, any sub-contractors with a design responsibility and any designers of the new access road, the Gailey Park roundabout, and accesses to the parties’ premises and any associated temporary works to the effect that all reasonable skill, care and diligence will be exercised in designing and constructing those works to the standard as would reasonably be expected in respect of a similar roadway including the selection of materials, goods, equipment and plant, such warranties to be provided to the parties before commencing Works No. 10b.

6.  The undertaker must provide as part of the works signage to direct that the new access road and Gailey Park roundabout are not to be used by construction or operational traffic of the authorised development.

7.  The undertaker must not in the exercise of powers conferred by this Order extinguish any rights currently enjoyed by any party to install, connect into, repair, maintain, replace, move or remove or otherwise use service media, nor prevent the installation, connection, repair, maintenance, replacement, movement, removal, decommissioning or use of such services without the relevant party’s consent (such consent not to be unreasonably withheld or delayed) or until the diversion of or provision of a reasonably suitable alternative to those services has been provided and rights have been granted to the parties to install, connect into, repair, maintain, replace or use such diverted or alternative service media and such diversion, alternative and rights must be no less beneficial to the parties than those currently enjoyed by those parties.

New access rights

8.—(1) Following the completion of the construction of the new access road the undertaker must grant to each party rights of access for pedestrians and vehicles over the new access road and the Gailey Park roundabout in order to enable that party and all those authorised by it to have pedestrian and vehicular access to and egress from its premises at any time from the A5/A449 link road via the new access road and such rights of access and egress must be on terms which are no less beneficial to the party’s premises and which impose no greater liability (but which will include maintenance of the length of the new access road) in respect of the parties’ premises than those enjoyed by or imposed upon that party at the time this Order was made.

(2) The undertaker must, prior to the grant of the rights required under sub-paragraph (1), consult each party on the form of the rights that party requires having regard to that party’s need to have access to and egress from any part of its premises and such rights must be on terms which are no less beneficial and which impose no greater liability (but which will include maintenance of the length of the new access road) in respect of the parties’ premises than those currently enjoyed by or imposed upon that party over the Gailey Park roundabout via Gravelly Way from the public highway and the undertaker must have regard to the reasonable comments of the parties in relation to the rights granted.

(3) Following the completion of any temporary alternative access to the parties’ premises the undertaker must grant to the parties concerned rights for pedestrian access and vehicular access over such temporary alternative access as necessary in order that the parties and all those authorised by them can have pedestrian and vehicular access to and egress from their premises at any time from the A5/A449 link road via such temporary alternative access and such rights of access must be no less beneficial to the parties’ premises than those rights of access enjoyed by the parties at the time this Order was made.

(4) The undertaker must, prior to the grant of the rights required under sub-paragraph (3), consult each party on the form of the rights they require having regard to the need to access any part of their premises which must be no less beneficial to the parties’ premises than those rights currently enjoyed by those parties over the Gailey Park roundabout via Gravelly Way to the public highway and the undertaker must have due regard to the reasonable comments of the parties in relation to the rights granted.

Maintenance

9.—(1) Following the completion of the new access road and the Gailey Park roundabout in order that each party and all those authorised by it are able to have access to and egress from any part of the relevant party’s premises, the undertaker must at its own expense remedy any material defects in those works as reasonably and properly required to be remedied as are identified by the parties or any of them within a period of 12 months from and including the date of such completion. Such remedial work must be carried out to the satisfaction of the party concerned acting reasonably and, provided that the defects in those works have been identified by the parties or any of them within the period of 12 months from the date of completion of the new access road and the Gailey Park roundabout, the undertaker’s obligation to carry out the remedial works continues beyond that 12 month period until the works have been completed to the satisfaction of the party or parties concerned acting reasonably.

(2) The undertaker must maintain the new access road and the Gailey Park roundabout as necessary in order that each party and all those authorised by it can gain access to and egress from any part of the party’s premises following completion of the works until alternative maintenance arrangements are agreed or until the transfer of the works to a management company pursuant to paragraph 10 of this Part of this Schedule.

10.  The undertaker and the parties may enter into, and carry into effect, an agreement for the transfer to a management company of the land comprised in the new access road.

Indemnity

11.  If any material damage to the parties’ premises or any of them is caused by the construction or maintenance (where the undertaker is responsible for such maintenance and not the management company) of the new access road, the Gailey Park roundabout, any accesses to the parties’ premises, any associated service media works or any associated temporary works, the undertaker must make good such damage and must pay to the party concerned all reasonable and proper costs, charges, damages, expenses and losses that it may incur by reason of such damage and must indemnify and keep indemnified the parties from and against all third party claims and demands arising out of or in connection with any of the matters referred to in this paragraph provided that the foregoing indemnity does not extend to any costs, charges, expenses, losses, liabilities or damages caused by or arising out of the actions, omissions or default of the party concerned or its officers, servants, agents or contractors or any person or body for whom it is responsible.

Expert determination

12.—(1) Subject to sub-paragraph (7), article 47 (arbitration) does not apply to this Part of this Schedule.

(2) Any difference under this Part of this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

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

(5) The expert must—

(a) invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

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

(e) any other important and relevant consideration; and

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

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

13.  The parties referred to in the definition of “parties” in paragraph 2 are—

• Air Liquide (Homecare) Limited

• Bericote Four Ashes Limited;

• British Telecommunications plc;

• Carver (Wolverhampton) Limited;

• Energetics Electricity Limited;

• Gravelly Way Management Ltd;

• Gestamp Tallent Limited;

• Haulotte UK Limited;

• Hoppe (U.K.) Limited;

• LU UK II Sarl;

• Mancot Limited;

• Alan Monckton;

• Camilla Monckton;

• Oliver Monckton;

• South Staffordshire Water plc;

• Sky UK Limited;

• Tritax Acquisition 28 Limited; and

• Tritax Big Box plc.

PART 6 FOR THE PROTECTION OF THE SI GROUP

1.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and SI Group.

2.  In this Part of this Schedule and notwithstanding the definitions contained in article 2 (interpretation)—

“environmental permit” means the permit issued by the Environment Agency to SI Group under reference EPR/BS47071B (as varied) in respect of the SI facility and the SI land;

“Four Ashes Limited” means Four Ashes Limited whose company number is 09747871 and whose registered office is 4th floor, 7/10 Chandos Street, Cavendish Square, London, W1G 9DQ;

“permits” means the environmental permit and a licence to abstract groundwater under reference number MD/028/0003/002 which inter alia govern the abstraction of contaminated groundwater and discharge to a wastewater treatment plant at the SI facility;

“SI facility” means the land edged blue for indicative purposes only on the SI facility plan;

“SI facility plan” means the plan referred to as such in Schedule 15 (certification documents) and certified as the SI facility plan by the Secretary of State for the purposes of this Order;

“SI land” means the land within the Order limits which is owned by the SI Group for so long as it is owned by it; and

“written agreement of SI” means—

(a)

the agreement dated 3 August 2018 between the SI Group and Four Ashes Limited; or

(b)

such other written agreement made between the SI Group and Four Ashes Limited from time to time.

3.  Subject to paragraph 7(1) of this Part of this Schedule the undertaker must not exercise any powers in accordance with this Order or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of the SI Group’s interests in the SI land or SI facility, or those interests which benefit those interests, including all rights, wayleaves and easements enjoyed by the SI Group in relation to the SI land and/or SI facility pursuant to—

(a) article 13 (accesses);

(b) article 21 (discharge of water);

(c) article 22 (authority to survey and investigate the land);

(d) article 24 (compulsory acquisition of land);

(e) article 25 (compulsory acquisition of rights);

(f) article 28 (private rights);

(g) article 29 (power to override easements and other rights);

(h) article 33 (rights under and over streets);

(i) article 34 (temporary use of land for carrying out the authorised development);

(j) article 35 (temporary use of land for maintaining the authorised development); and/or

(k) article 41 (felling or lopping trees and removal of hedgerows),

unless the exercise of such powers is in accordance with the written agreement of SI.

4.  The undertaker must not take any steps in accordance with this Order or otherwise that give rise to SI Group being in breach of any permits.

5.  The undertaker must not carry out any of the authorised development on any part of the SI land where that land remains encompassed within the site boundary regulated by and referred to in the environmental permit save as in accordance with the written agreement of SI.

6.  The undertaker must not, save as in accordance with the written agreement of SI., interfere with or obstruct the free, uninterrupted and safe use of any vehicular access to the SI facility.

7.  A power referred to in paragraphs 3, 5 and 6 of this Part of this Schedule may be exercised notwithstanding those paragraphs where the written agreement with SI to which they refer provides that the power is permitted to be exercised.

PART 7 FOR THE PROTECTION OF THE CANAL & RIVER TRUST

1.  The provisions of this Part of this Schedule are to have effect unless otherwise agreed in writing between the undertaker and the Canal & River Trust.

2.  In this Part of this Schedule—

“canal” means that part of the Staffordshire and Worcestershire Canal located within the Order limits;

“construction” includes execution, placing, alteration and reconstruction, and “construct” and “constructed” are to be construed accordingly;

“Trust” means the Canal & River Trust acting as a trustee of the Waterways Infrastructure Trust or any successor body performing the same functions and which holds any waterways within the order limits;

“code of practice” means the Code of Practice for Works Affecting the Trust (April 2017) as amended from time to time;

“detriment” means any damage to the waterway or any other property of the Trust caused by the presence of the authorised works and includes—

(a)

any effect on the stability of the waterway or the safe operation and navigation of any waterway;

(b)

any obstruction of, or interference with, or hindrance or damage to, navigation or to any use of the waterway (including towing paths);

(c)

the erosion of the bed or banks of the waterway, or the impairment of the stability of any works, lands or premises forming part of the waterway;

(d)

the deposit of materials or the siltation of the waterway so as to damage the waterway;

(e)

the pollution of the waterway;

(f)

any significant alteration in the water level of the waterway, or significant interference with the supply of water thereto, or drainage of water therefrom;

(g)

any harm to the ecology of the waterway (including any adverse impact on any site of special scientific interest comprised in the Trust network); and

(h)

any interference with the exercise by any person of rights over the Trust’s network;

“the engineer” means an engineer appointed by the Trust for the purpose in question;

“plans” includes sections, designs, design data, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), programmes and details of the extent, timing and duration of any proposed use and/or occupation of the waterway;

“protective works” means works carried out pursuant to the provisions of paragraph 4(4) of this Part of this Schedule

“specified work” means so much of the authorised development as is situated upon, across, under, over or within 15 metres of the waterway; and

“waterway” means the canal, Calf Heath Reservoir and two feeder channels and any other property of the Trust (including fibre optic cabling within the towpath) and includes any works, services, apparatus, equipment, lands (including subsoil) or premises belonging to or under the control of the Trust and held or used by it in connection with its statutory functions.

Powers requiring consent of the Trust

3.—(1) Where under this Part of this Schedule or anywhere else under this Order the Trust (or the engineer) is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that the Trust must observe the provisions of its code of practice for works affecting waterways and where the code of practice is adhered to and its provisions observed, such consent must not be unreasonably withheld or delayed. Any consent may be issued subject to reasonable conditions including any condition which requires compliance with the code of practice or any applicable part and any condition which requires the payment of such charges/fees/costs as are typically charged by the Trust and in respect of article 21 (discharge of water), it is reasonable to impose the following conditions—

(a) requiring the payment of such charges as are typically charged by the owner of the relevant waterway;

(b) specifying the maximum volume of water which may be discharged in any period; and

(c) authorising the Trust on giving reasonable notice (except in an emergency, when the Trust may require immediate suspension) to the undertaker to require the undertaker to suspend the discharge of water or reduce the flow of water where this is necessary by reason of any operational or environmental requirement of the Trust.

(2) In so far as any specified work or the acquisition of rights under and/or over or use of the waterway is or may be subject to the code of practice, the Trust must—

(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from that code or any other reasonable requirements of the Trust or the engineer; and

(b) use its reasonable endeavours to avoid any conflict arising between the application of that code and the proper implementation of the authorised development pursuant to this Order.

(3) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any of the waterway, unless preventing such access is with the consent of the Trust.

(4) The undertaker must not exercise the powers conferred by sections 271 (extinguishment of rights of statutory undertakers: preliminary notices) or 272(6) (extinguishment of rights of electronic communications code network operators: preliminary notices) of the 1990 Act, or article 32 (statutory undertakers and operators of the electronic communications code network), in relation to any right of access of the Trust to the waterway, but such right of access may be diverted with the consent of the Trust .

(5) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article 21 or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Trust.

(6) The undertaker must not exercise any power conferred by article 22 (authority to survey and investigate land) or section 11(3) (powers of entry) of the 1965 Act, in relation to the waterway unless such exercise is with the written consent of the Trust.

(7) The undertaker must not exercise any power conferred by article 24 (compulsory acquisition of land) or article 25 (compulsory acquisition of rights) in respect of the Trusts interests in the waterway.

(8) The undertaker must not exercise any power conferred by article 34 (temporary use of land for carrying out the authorised development) or article 35 (temporary use of land for maintaining the authorised development) in respect of the waterway unless such exercise is with the consent of the Trust.

(9) The undertaker must not exercise any power conferred by this Order to construct a bridge spanning the waterway without the consent of the Trust with the exception of the powers of acquisition of rights over those interests held by third parties required to facilitate the construction of a bridge over the canal.

(10) The undertaker must not exercise any power conferred by this Order to construct a culvert under the waterway without the consent of the Trust.

(11) The undertaker must not exercise the power conferred by article 4 (parameters of authorised development) in respect of any bridges over the waterway without the consent of the Trust.

(12) The undertaker must not exercise any power conferred by article 41 (felling or lopping of trees and removal of hedgerows) in respect of tree, shrub or hedgerow within an area of the specified work unless such power is exercised with the consent of the Trust.

(13) The undertaker must not demolish the canal crossings (as identified on the parameter plans (Document 2.5)) without first agreeing with the Trust the timescales and methodology of the demolition and the demolition must thereafter be carried out in accordance with the agreed methodology and timescale.

(14) The undertaker must not exercise any power conferred by this Order to stop up any public rights of navigation on the canal other than with the consent of the Trust.

(15) Where the Trust is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld or delayed but may be given subject to reasonable conditions.

(16) Where the undertaker is required to obtain the Trust’s consent in accordance with this Order, such consent must be obtained in writing.

(17) The undertaker must consult and have regard to representations made by the Trust in relation to any details submitted to the local planning authority for approval under any of the requirements relating to so much of the authorised development as is situated upon, across, under, over or within 150 metres of, or may in any way affect, the waterway; this includes requirements 3, 4(2)(b), (c), (e), (h) and (n), 4(4), 6, 12, 13, 16, 17, 18, 20, 26, 27 and 30.

(18) Article 21(9) does not apply in relation to the Trust and accordingly there can be no deemed approval in respect of the discharge of any water into the waterway.

Approval of plans

4.—(1) The undertaker must before commencing construction of any specified work or carrying out any works on the waterway whatsoever supply to the Trust proper and sufficient plans of that work, the form(s) and application fee which is ordinarily required by the Trust’s engineers in accordance with the code of practice and such further particulars available to it as the Trust may within 28 days of the submission of the plans reasonably require for the reasonable approval (having regard to the undertaker’s timetable for the construction of the authorised development) of the Trust, and the specified work must not be commenced until the plans of that work have been approved in writing by the engineer or settled by expert determination pursuant to paragraph 25 of this Part of this Schedule. The approval of the engineer may be subject to any reasonable requirement that the specified work is undertaken at a time specified by the engineer.

(2) If—

(a) at the expiry of the period of 35 days—

(i) from receipt by the Trust of the proper and sufficient plans of the work, the form(s) and application fee which is ordinarily required by the Trust’s engineers in accordance with the code of practice as referred to in sub-paragraph (1); or

(ii) if any other particulars are reasonably required by the Trust under sub-paragraph (1), from receipt by the Trust of that further information for; and

(b) the Trust has not served—

(i) notice of refusal of those plans; and

(ii) the grounds for refusal of those plans,

the Trust is deemed to have approved the plans as submitted provided that all information specified in sub-paragraph (1) has been supplied to the Trust together with any ordinarily applicable application fee.

(3) If by the end of the period of 35 days beginning with the date on which written notice was received by the engineer under sub-paragraph (1), the Trust gives notice to the undertaker that the Trust desires itself to construct any part of a specified work which in the opinion of the engineer may or will cause any detriment in respect of the waterway or the safe operation of the waterway, then if the undertaker requires such part of such specified work to be constructed the Trust must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision of the undertaker; and the undertaker must reimburse the Trust in respect of all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

(4) When signifying its approval of the plans, the Trust may specify any protective works (whether temporary or permanent) which in its opinion should be carried out before commencement of the construction of a specified work to prevent any detriment and such protective works (which for the avoidance of doubt may include requirements to fence any proposed works in order to separate the same from the waterway either on a permanent or temporary basis) as may be reasonably necessary to prevent detriment must be constructed by the undertaker, as agreed between the parties or settled by expert determination in accordance with paragraph 25 of this Part of this Schedule and such protective works must be carried out at the expense of the undertaker with all reasonable dispatch and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that any protective works have been completed to the engineer’s reasonable satisfaction.

(5) The undertaker must pay to the Trust a capitalised sum representing the reasonably increased or additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph (4) above, and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order but if the cost of maintaining the waterway, or of works of renewals of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving must be set off against any sum payable by the undertaker to the Trust under this paragraph.

(6) In the event that the undertaker fails to complete the construction of, or part of, the specified works or protective works the Trust may, if reasonably required in order to avoid detriment, serve on the undertaker a notice in writing requesting that construction be completed. Any notice served under this sub-paragraph must state the works that are to be completed by the undertaker and lay out a timetable for the works’ completion. If the undertaker fails to comply with this notice within 35 days, the Trust may construct any of the specified works or protective works, or part of such works (together with any adjoining works) in order to complete the construction of, or part of, the specified works and/or protective works and the undertaker must reimburse the Trust all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

Vehicles

5.  The undertaker must not use any of the waterway for the passage or siting of vehicles, plant and machinery employed in the construction of the specified works other than—

(a) with the consent in writing of the Trust whose consent must not be unreasonably withheld; and

(b) subject to compliance with such reasonable requirements as the Trust may from time to time specify—

(i) for the prevention of the detriment; or

(ii) in order to avoid or reduce any inconvenience to the Trust, its officers and agents and all other persons lawfully on such land or property, but nothing in this paragraph applies in relation to anything done in accordance with any approval given by the Trust under paragraph 4 of this Part of this Schedule provided that such approval is given with the knowledge of the use of any land or property of the Trust or the waterway for this purpose.

Survey of waterway

6.—(1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works the undertaker must bear the reasonable cost of the carrying out by a qualified engineer (“the surveyor”), to be approved by the Trust and the undertaker, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works.

(2) For the purposes of the survey the undertaker must—

(a) on being given reasonable notice (save in case of emergency, when immediate access must be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of the undertaker which may provide support for the waterways as will or may be affected by the specified works; and

(b) supply the surveyor as soon as reasonably practicable with all such information as he may reasonably require with regard to such existing works of the undertaker and to the specified works or the method of their construction.

(3) The reasonable costs of the survey must include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this Part of this Schedule apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works

(4) Copies of the survey must be provided to both the Trust and the undertaker at no cost to the Trust.

Design of works

7.—(1) Without prejudice to its obligations under the provisions of this Part of this Schedule the undertaker must consult, collaborate and respond constructively to any approach, suggestion, proposal or initiative made by the Trust in relation to—

(a) the design and appearance of the specified works (or any works authorised by this Order so far as such works may affect the waterway or the setting of the waterway), including the materials to be used for their construction; and

(b) the environmental effects of those works,

and must have regard to such views as may be expressed by the Trust in response to such consultation pursuant in particular to the requirements imposed on the Trust by section 22 (general environmental and recreational duties) of the British Waterways Act 1995(7) and to the interest of the Trust in preserving and enhancing the environment of its waterways.

Construction of specified works

8.—(1) Any specified work and any protective works to be constructed must, when commenced, be constructed—

(a) with all reasonable dispatch (having regard to the undertaker’s timetable for construction of the authorised development) in accordance with the plans approved or deemed to have been approved or settled under paragraph 4 of this Part of this Schedule and with any requirements made under paragraph 7 of this Part of this Schedule;

(b) under the supervision (if given) and to the reasonable satisfaction of the engineer;

(c) in such manner as to cause as little detriment as possible to the waterway;

(d) in such a manner to ensure that no materials are discharged or deposited into the waterway forming part of the Trust property otherwise than in accordance with article 21 (discharge of water);

(e) in such a manner as to cause as little inconvenience as is reasonably practicable to the Trust, its officers and agents and all other persons lawfully using the waterway, except to the extent that temporary obstruction has otherwise been agreed by the Trust; and

(f) in compliance with the code of practice if relevant.

(2) If any damage or detriment to the waterway is caused by the carrying out of, or in consequence of the construction of a specified work or protective work, the undertaker must make good such damage or detriment and must pay to the Trust all reasonable and proper expenses that the Trust may incur or may be put and reasonable and proper compensation for any loss which it may sustain by reason of such damage, detriment, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligent act or default of the Trust or its servants, contractors or agents or any liability on the Trust with respect of any damage, costs, expenses or loss attributable to the negligent act or default of the undertaker or its servants, contractors or agents.

(4) Nothing in this Order authorises the undertaker to make or maintain any permanent work in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Trust is required by section 105(1)(b) and (2) (maintenance of waterways) of the Transport Act 1968(8) to maintain the waterway.

(5) Following the completion of the construction of the specified works the undertaker must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works unless otherwise agreed between the undertaker and the Trust.

Notice of works and access to works

9.—(1) The undertaker must give to the Trust 30 days’ notice of its intention to commence the construction of any of the specified or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Trust may where appropriate arrange for the publication of notices bringing those works to the attention of users of the Trust’s network.

(2) The undertaker must—

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

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

(3) In relation to any proposed closure of the canal or towpath or proposed temporary stopping up of public rights of navigation in respect of the canal, the undertaker must comply with the notification requirements and the procedure set out in the code of practice.

Lighting

10.  The undertaker must provide and maintain at its own expense in the vicinity of the specified or protective works such temporary lighting and such signal lights for the control of navigation as the Trust may reasonably require during the construction or failure of the specified or protective works.

Access to works

11.  The Trust, on being given reasonable notice, must use reasonable endeavours to afford reasonable facilities to the undertaker and its agents for access to any works carried out by the Trust under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them and the undertaker must reimburse the Trust’s reasonable costs in relation to the supply of such information.

Prevention of pollution

12.  The undertaker must not in the course of constructing a specified work or protective works or otherwise in connection therewith (or in connection with any works authorised by this Order) do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must comply with any statutory requirements and take such steps as the Trust may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Repayment of the Trust’s fees

13.  The undertaker must repay to the Trust all reasonable and proper fees, costs, charges and expenses reasonably incurred by the Trust in accordance with the code of practice in respect of—

(a) its approval of plans submitted by the undertaker;

(b) the supervision by the Trust of the construction of a specified work or protective works;

(c) in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchmen and other person whom it is reasonably necessary to appoint for inspecting, watching and lighting any waterway and for preventing, so far as may be reasonably practicable, the interference, obstruction, danger or accident arising from the construction or failure of the specified works and any protective works; and

(d) in bringing the specified works or any protective works to the notice of users of the Trust’s network.

Maintenance of works

14.  If at any time during or after the completion of a specified work or protective works, the Trust gives notice to the undertaker informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not to cause such detriment.

Compensation and indemnity

15.—(1) The undertaker must pay to the Trust all reasonable and proper costs, charges, damages, expenses and losses not otherwise provided for in this Part of this Schedule which may be occasioned to and reasonably incurred by the Trust—

(a) by reason of the existence, construction or maintenance of a specified work or protective works or the failure of such work; or

(b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or protective work,

and the undertaker must indemnify and keep indemnified the Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in this sub-paragraph. The fact that any act or thing may have been done by the Trust on behalf of the undertaker or in accordance with plans approved by the Trust or in accordance with any requirement of the Trust or under the Trust’s supervisions or in accordance with any directions or awards following expert determination is not (if it was done without negligence on the part of the Trust or any person in its employ or of its contractors or agents) to relieve the undertaker from any liability under the provision of this sub-paragraph.

(2) The Trust must give the undertaker reasonable notice of any such claim or demand and save as such conduct would be contrary to law no settlement or compromise of such a claim or demand must be made without the prior written consent of the undertaker, such consent not to be unreasonably withheld or delayed.

16.  The Trust must, on receipt of a written request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim or to be made pursuant to this Part of this Schedule.

17.  In the assessment of any sums payable to the Trust under this Part of this Schedule, there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the Trust if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

18.  The undertaker and the Trust may enter into, and carry into effect, agreement for the transfer to the undertaker of—

(a) any waterway shown on the works and/or land plans and described in the book of reference;

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

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

and the Trust may seek to require the undertaker to pay a commercial rate/cost/fee to the Trust.

19.  The undertaker must repay to the Trust in accordance with the Trust’s code of practice all reasonable fees, costs, charges and expenses reasonably incurred by the Trust—

(a) in constructing any part of a specified work on behalf of the undertaker or in constructing any protective works including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the Trust of plans submitted by the undertaker and the supervision by it of the construction of a specified work or any protective works;

(c) in respect of the employment or procurement of the services of any persons whom it must be reasonably necessary to appoint for inspecting, signalling, watching and lighting the waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or incident arising from the construction or failure of a specified work or any protective works;

(d) in respect of any additional temporary lighting of the waterway in the vicinity of the specified works or any protective works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work or protective work;

(e) in bringing the specified works or any protective works to the notice of users of the Trust’s network; and

(f) in constructing and/or carrying out any measures relating to the authorised development which are reasonably required by the Trust to ensure the safe navigation of the waterway save that nothing shall require the Trust to construct and/or carry out such measures.

20.—(1) If any permanent or temporary alterations or additions to the waterway are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of the waterway, the continued safe operation of the waterway or the prevention of a detriment such alterations and additions may be carried out by the Trust upon the giving of reasonable notice to the undertaker and the undertaker must pay to the Trust the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Trust in maintaining, working and, when necessary, renewing any such alternations or additions.

(2) If during the construction of a specified work by the undertaker, the Trust gives notice to the undertaker that the Trust desires itself to construct that part of the specified work which in the opinion of the Trust is endangering the stability of the waterway or the safe operation of any waterway then, if the undertaker decided that part of the specified work is to be constructed, the Trust shall assume construction of that part of the specified work under paragraph 4(3) of this Part of this Schedule and the undertaker must pay to the Trust all reasonable expenses to which the Trust may be put and compensation for any loss which it may suffer by reason of the execution by the Trust of that specified work.

(3) The Trust must, in respect of the capitalised sums referred to in this paragraph and the other provisions of this Part of this Schedule, provide such details of the formula by which those sums have been calculated as the undertaker may reasonably request in writing within 14 days of Trust notifying the undertaker of the amount of the capitalised sums.

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

Costs of alterations

21.  Any additional expenses which the Trust may reasonably incur in altering, reconstructing or maintaining the waterway under any powers existing at the date when this Order was made by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be paid by the undertaker to the Trust.

22.—(1) The fact that any act or thing may have been done by the Trust on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision or in accordance with any directions or awards of an arbitrator does not (if it was done without negligence on the part of the Trust or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this paragraph.

(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 neglect or wilful default of the Trust, its officers, servants, contractors or agents.

Fencing

23.  Where so reasonably required by the engineer the undertaker must to the reasonable satisfaction of the engineer fence off a specified work or protective works or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or protective works from the waterway, whether on a temporary or permanent basis or both.

Capitalised sums

24.  Any capitalised sum which is required to be paid under this Part of this Schedule must be calculated by multiplying the cost of the maintenance or renewal works to the waterway necessitated as a result of the operation of the authorised development by the number of times that the maintenance or renewal works will be required during the operation of the authorised development.

Expert determination

25.—(1) Article 47 (arbitration) does not apply to this Part of this Schedule except in respect of sub-paragraph (7).

(2) Any difference under this Part of this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the undertaker and the Trust or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

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

(5) The expert must—

(a) invite the parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

(c) the status of the Trust as a registered charity;

(d) the requirement for the Trust to comply with its statutory duties and responsibilities;

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

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

(g) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

PART 8 FOR THE PROTECTION OF CADENT GAS LIMITED AS GAS UNDERTAKER

Application

1.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and Cadent.

Interpretation

2.  In this Part of this Schedule—

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

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protection, cables or other apparatus belonging to or maintained by Cadent for the purpose of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of Cadent for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to the apparatus;

“authorised works” has the same meaning as is given to the term “authorised development” in article 2 (interpretation) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;

“Cadent” means Cadent Gas Limited (Company Number 10080864) whose registered office is situated at Ashbrook Court, Prologis Park, Central Boulevard, Coventry, CV7 8EP and any successor in title or assignee including any successor to their license as a gas transporter under Part 1 of the Gas Act 1986(9);

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary and/or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by the undertaker (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, will require the undertaker to submit for Cadent’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;

“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Cadent including construct, use, repair, alter, inspect, renew or remove the apparatus;

“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; and

“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

(a)

will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 6(2) of this Part of this Schedule or otherwise; or

(b)

include any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 Cadent 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/SSW/22”.

On Street Apparatus

3.—(1) Except for paragraphs 4 (apparatus of Cadent in stopped up streets), 6 (removal of apparatus) and 7 (facilities and rights for alternative apparatus) (in so far as sub-paragraph (2) applies), 8 (retained apparatus: protection), 9 (expenses) and 10 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of the undertaker, and subject to sub-paragraph (2), the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 of the 1991 Act.

(2) Notwithstanding sub-paragraph (1), paragraphs 6 and 7 of this Part of this Schedule apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within existing adopted public highway.

(3) Notwithstanding article 33(5) (rights under or over streets) and article 35(7) (temporary use of land for maintaining the authorised development) or any other powers in the Order generally, section 85 (sharing cost of necessary measures) of the 1991 Act, and the regulations made thereunder, do not apply in relation to any diversion of apparatus of Cadent under the 1991 Act.

Apparatus of Cadent in stopped up streets

4.—(1) Without prejudice to the generality of any other protection afforded to Cadent elsewhere in the Order, where any street is stopped up under article 10 (permanent stopping up of streets), if Cadent has any apparatus in the street or accessed via that street Cadent will be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker will grant to Cadent, or will procure the granting to Cadent, legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street but nothing is this paragraph affects any right of the undertaker or Cadent to require removal of the apparatus under paragraph 6 of this Part of this Schedule.

(2) Notwithstanding the temporary stopping up or diversion of any street under the powers of article 11 (temporary stopping up of streets), Cadent will be at liberty at all times to take all necessary access across any such stopped up 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 stopping up or diversion was in that street.

(3) The protective provisions in this Part of this Schedule apply and take precedence over article 36(2) to (7) (apparatus and rights of statutory undertakers in stopped up streets) of the Order which do not apply to Cadent.

Acquisition of land

5.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker may not acquire any land interest or apparatus or acquire, extinguish, interfere with or otherwise override any easement and/or other interest or right of Cadent otherwise than by agreement.

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between Cadent and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Cadent or affects the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

(3) Where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent or other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.

(4) Any agreement or consent granted by Cadent under paragraph 8, or any other paragraph, of this Part of this Schedule, is not be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

6.—(1) If, in the exercise of the agreement reached in accordance with paragraph 5 of this Part of this Schedule 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 Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of Cadent in accordance with sub-paragraphs (2) to (5).

(2) If, for the purpose of executing any works 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 Cadent 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 Cadent reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Cadent to its satisfaction (taking into account paragraph 8(1) of this Part of this Schedule) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of or land secured by 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 or land secured by 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, Cadent 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, with the undertaker’s assistance if required by Cadent, save that this obligation does not extend to the requirement for Cadent 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 or land secured by 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 Cadent and the undertaker.

(5) Cadent must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to Cadent of any such facilities and rights as are referred to in sub-paragraph (2) or (3), then 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.

Facilities and rights for alternative apparatus

7.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Cadent facilities and rights in land for the construction, use, maintenance and protection 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 Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by Cadent.

(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) 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 Cadent 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 will be referred to arbitration in accordance with paragraph 14 of this Part of this Schedule and the arbitrator is to make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

8.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to the undertaker under sub-paragraph (1) must include a method statement and describe—

(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; and

(f) any intended maintenance regimes.

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

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

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

(b) must not be unreasonably withheld or delayed.

(5) In relation to any work to which sub-paragraph (1) applies, Cadent may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus 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 to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (5), as approved or as amended from time to time by agreement between the undertaker and Cadent and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by Cadent for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Cadent will be entitled to watch and inspect the execution of those works.

(7) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required and the Cadent must give 56 days’ notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) If Cadent in accordance with sub-paragraphs (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, sub-paragraphs (1) to (3) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2) of this Part of this Schedule.

(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the authorised works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(10) The undertaker will 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 Cadent notice as soon as is reasonably practicable and a plan of those works and must—

(a) comply with sub-paragraphs (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 the undertaker must comply with the Cadent 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 HSE’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 must implement an appropriate ground mitigation scheme save that Cadent 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 9 of this Part of this Schedule.

Expenses

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

(a) any costs reasonably incurred by or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by Cadent as a consequence of Cadent—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 6(3); or

(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting Cadent

(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 Part of this Schedule.

(2) There will 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 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, is not determined by arbitration in accordance with article 47 (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 Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will 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 will 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 will 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 Cadent in respect of works by virtue of sub-paragraph (1) will, 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 Cadent 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.

Indemnity

10.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works 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 Part of 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 the authorised works) or property of Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will—

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

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

(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workmanlike manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph (1) imposes 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 Cadent, its officers, servants, contractors or agents; and

(b) any authorised works and/or any other works authorised by this Part of this Schedule carried out by Cadent as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 (benefit of order granting development consent ) of the 2008 Act subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this paragraph (b) will be subject to the full terms of this Part of this Schedule including this paragraph 10.

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

Enactments and agreements

11.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between Cadent and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to Cadent on the date on which this Order is made.

Co-operation

12.—(1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 6(2) of this part of this Schedule Cadent makes requirements for the protection or alteration of apparatus under paragraph 8 of this Part of this Schedule, the undertaker must use its best endeavours to co-ordinate the execution of the works 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 Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose.

(2) Whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.

Access

13.  If in consequence of the agreement reached in accordance with paragraph 5(1) of this Part of this Schedule or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

14.  Any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 47 (arbitration).

Notices

15.  The plan and scheme submitted to the undertaker by Cadent pursuant to paragraph 8(1) of this Part of this Schedule must be sent to Cadent Gas Limited Plant Protection at [e-mail] or such other address as the undertaker may from time to time appoint instead for that purpose and notify to the undertaker.

PART 9 FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the operator.

2.  In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003(10);

“electronic communications apparatus” has the same meaning as in the electronic communications code(11);

“the electronic communications code” has the same meaning as in section 106(1)(12) (application of the electronic communications code) of the 2003 Act;

“electronic communications code network” means—

(a)

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

(b)

an electronic communications network which the undertaker is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;

“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(2) of that code; and

“operator” means the operator of an electronic communications code network.

3.  The exercise of the powers conferred by article 32 (statutory undertakers and operators of the electronic communications code network) is subject to Part 10 of the electronic communications code.

4.—(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—

(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 who, if withholding 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 47 (arbitration).

(5) This Part of this Schedule does not apply to—

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

(b) any damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.

(6) 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.

PART 10 FOR THE PROTECTION OF WATER AND SEWERAGE UNDERTAKERS

1.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

2.  In this Part of this Schedule—

“alternative apparatus” means any temporary or permanent alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means—

(a)

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

(b)

in the case of a sewerage undertaker—

(i)

any drain or works vested in that undertaker under the Water Industry Act 1991(13); and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4)(14) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104(15) (agreements to adopt sewer, drain or sewage disposal works, at future date) 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;

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

“utility undertaker” means—

(a)

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

(b)

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

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

On street apparatus

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 of the 1991 Act.

Apparatus in stopped up streets

4.—(1) Where any street is stopped up under article 10 (permanent stopping up of streets), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 6 of this Part of this Schedule or the power of the undertaker to carry out works under paragraph 8 of this Part of this Schedule.

(2) Regardless of the temporary stopping up or diversion of any street under the powers conferred by article 11 (temporary stopping up of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up 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 stopping up or diversion was in that street.

Acquisition of land

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.

Removal of apparatus

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 requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed, diverted or otherwise altered under this Part of this Schedule, and/or any right of a utility undertaker to maintain apparatus in that land must not be extinguished, or made incapable of being exercised unless—

(a) it is in the reasonable opinion of the undertaker necessary for the purpose of carrying out the authorised development;

(b) any alternative, diverted or relocated apparatus required by the utility undertaker (acting reasonably) has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6);

(c) any rights required by the utility undertaker (acting reasonably) including to install, access, retain, replace, divert, relocate and maintain any apparatus or alternative apparatus have been granted to the reasonable satisfaction of the utility undertaker; and

(d) any of the apparatus or alternative apparatus referred to in paragraph (b) or rights required and referred to in paragraph (c) do not in the reasonable opinion of the utility undertaker cause a material increase in the time, resources of and costs to the utility undertaker in using, operating or maintaining its apparatus unless agreed otherwise by the utility undertaker.

(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, diversion or alteration of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ 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 an undertaker reasonably needs to remove any 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, and the utility undertaker may elect to leave in situ any apparatus that the undertaker requires to be removed provided that it permits the undertaker to remove the apparatus and at its own cost in place of the utility undertaker.

(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 must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best 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 47 (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 47, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), and in accordance with a timetable to be agreed with the undertaker (both parties acting reasonably) such timetable to have due and proper regard to the utility undertaker’s statutory obligations with regard to its apparatus and undertaking including its obligation to maintain the supply of clean water at all times, proceed without unnecessary delay to construct and bring into operation the alternative apparatus and, subject to the provisions of sub-paragraph (2) of this paragraph, 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 the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of 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 of disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is lain in a trench) within 300 millimetres of apparatus which is not being removed, diverted or altered without the consent of the utility undertaker (such consent not to be unreasonably withheld or delayed).

Facilities and rights for alternative apparatus

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 are to 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 47 (arbitration).

(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.

Retained apparatus

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, diversion or alteration of which has not been required by the undertaker under paragraph 6(2) of this Part of this Schedule, the undertaker must submit to the utility undertaker in question for approval (such approval not to be unreasonably withheld or delayed and in any event within 17 working days) a plan, section and description of the works to be executed including (where appropriate) the proposed details of and location of alternative apparatus.

(2) Those works must be executed only in accordance with the plan approved 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 of the works necessary for the protection of 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 17 working days beginning with the date on which a plan, section and/or description of the works under sub-paragraph (1) is 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 3 and 6 to 8 of this Part of this Schedule 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 for approval of the utility undertaker (such approval not to be unreasonably withheld or delayed and in any event within 17 working days) instead of the plan, section or 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 must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and it must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances and it must not under any circumstances interfere with the apparatus of the utility undertaker or do anything that would interfere with or prevent the use of that apparatus without the express permission of the utility undertaker.

(7) The utility undertaker must acknowledge any notice received from the undertaker pursuant to sub-paragraph (6) without delay and within not more than 24 hours of receipt of such notice and it must agree with the undertaker as soon as reasonably possible exercising all reasonable endeavours a scheme of works necessary to address the emergency and which works may at the utility undertaker’s absolute discretion be carried out by the undertaker, and the utility undertaker must without delay co-operate with the undertaker to address the emergency in so far as it may interfere with the apparatus of the utility undertaker or do anything that would interfere with or prevent the use of that apparatus.

Expenses and costs

9.—(1) Subject to the sub-paragraph (2), the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the approval of plans, specification, descriptions, inspection, installation, removal, diversion, 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 8(2) of this Part of this Schedule and the reasonable costs of securing any rights which the utility undertaker requires (acting reasonably).

(2) There must be deducted from any sum payable under sub-paragraph (1) a sum, equivalent to 7.5% of the costs of any of those matters referred to in sub-paragraph (1) occasioned by the creation of new traffic islands at—

(a) the A5 between Gailey Bridge (on the Staffordshire and Worcestershire Canal) and Calf Heath Reservoir; and

(b) Junction of the A449 Stafford Road with Crateford Lane and Gravelly Lane.

10.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the exercise of any rights or powers under this Order, or construction of any such works referred to in paragraphs 6 or 8(2) of this Part of this Schedule, or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus (whether unaltered, diverted or relocated) 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 a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, or there is an increase in the cost to the utility undertaker of carrying out its statutory obligations or providing services or goods or operating or maintaining its apparatus or any omission by the undertaker or its agents causes any such matter the undertaker must—

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

(b) indemnify that utility undertaker for any other expenses, loss, proceedings, damages, claims, penalty or costs incurred by the utility undertaker, by reason or in consequence of any such damage or interruption or increase in costs or the utility undertaker becoming liable to any third party as aforesaid other than arising from any default of the utility undertaker.

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

(3) 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.

(4) 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 who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Cooperation

11.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal, diversion or alteration of apparatus under paragraph 6(2) of this Part of this Schedule or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 8 of this Part of this Schedule, the undertaker must use best endeavours to co-ordinate the execution of the works 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 utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

12.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

(1)

1993 c. 43. Section 8 was amended by section 216 of, and paragraphs 1 and 4 of Schedule 17 and Part 4 of Schedule 31 to, the Transport Act 2000 (c. 38), paragraphs 1 and 5 of Schedule 2 to the Railways and Transport Safety Act 2003 (c. 20), paragraph 3 of Schedule 1, and Part 1 of Schedule 13, to the Railways Act 2005 (c. 14) and S.I. 2015/1682.

(2)

2006 c. 46.

(3)

Section 272 was amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).

(4)

S.I. 2016/362.

(5)

S.I. 2015/51.

(6)

Section 272 was amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).

(7)

1995 c. i.

(8)

1968 c. 73. Section 105 was amended by S.I. 2012/1659.

(9)

1986 c. 44.

(10)

2003 c. 21.

(11)

See paragraph 5 of Schedule 3A (the electronic communications code) to the Communications Act 2003 (c. 21). Schedule 3A was inserted by Schedule 1 to the Digital Economy Act 2017 (c. 30).

(12)

Section 106 was amended by section 4(3) to (9) of the Digital Economy Act 2017 (c. 30).

(13)

1991 c. 56.

(14)

Section 102(4) was amended by sections 56 and 96(1)(c) to (e) of, and paragraphs 2 and 90 of Schedule 7 to, the Water Act 2014 (c. 21).

(15)

Section 104 was amended by sections 96(4) and 101(2) of, and Part 3 of Schedule 9 to, the Water Act 2003 (c. 37), section 42(3) of the Flood and Water Management Act 2010 (c. 29) and sections 11 and 56 of, and paragraphs 2 and 91 of Schedule 7 to, the Water Act 2014 (c. 21).