The West Midlands Rail Freight Interchange Order 2020

PART 5 U.K. 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. U.K.

2.  In this Part of this Schedule— U.K.

“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 U.K.

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 U.K.

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. U.K.

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. U.K.

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. U.K.

New access rights U.K.

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 U.K.

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. U.K.

Indemnity U.K.

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 U.K.

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— U.K.

• — 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.