35.—(1) In this paragraph—
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Nexus apparatus generated by the operation of the development where such interference is of a level which adversely affects the safe operation of Nexus’s apparatus; and
“Nexus’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the development) which are owned or used by Nexus 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 Nexus’s apparatus carried out after approval of plans under paragraph 29(1) for the relevant part of the development giving rise to EMI (unless the Council 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 Council must in the design and construction of the development take all measures necessary to prevent EMI and must establish with Nexus (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the Council’s compliance with sub-paragraph (3)—
(a)the Council must consult with Nexus as early as reasonably practicable to identify all Nexus’s apparatus which may be at risk of EMI, and must continue to consult with Nexus (both before and after formal submission of plans under paragraph 29(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)Nexus must make available to the Council all information in the possession of Nexus reasonably requested by the Council in respect of Nexus’s apparatus identified under sub-paragraph (a); and
(c)Nexus must allow the Council reasonable facilities for the inspection of Nexus’s apparatus identified under sub-paragraph (a).
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Nexus’s apparatus, Nexus must not withhold its consent unreasonably to modifications of Nexus’s apparatus, but the means of prevention and the method of their execution may be selected at the reasonable discretion of Nexus, and in relation to such modifications paragraph 29(1) has effect subject to this sub-paragraph.
(6) If at any time prior to the completion of the development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the development causes EMI then the Council must immediately upon receipt of notification by Nexus 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) cease to use (or procure the cessation of use of) the Council’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 Nexus’s apparatus.
(7) In the event of EMI having occurred—
(a)the Council must afford reasonable facilities to Nexus for access to the Council’s apparatus in the investigation of such EMI;
(b)Nexus must afford reasonable facilities to the Council for access to Nexus’s apparatus in the investigation of such EMI; and
(c)Nexus must make available to the Council any additional material information in its possession reasonably requested by the Council in respect of Nexus’s apparatus or such EMI.
(8) Where Nexus approves modifications to Nexus’s apparatus under sub-paragraphs (5) or (6)—
(a)Nexus must allow the Council reasonable facilities for the inspection of the relevant part of Nexus’s apparatus; and
(b)any modifications to Nexus’s apparatus approved under those sub-paragraphs must be carried out and completed by the Council in accordance with paragraph 30.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 39(1) applies to the costs and expenses reasonably incurred or losses suffered by Nexus 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 Nexus’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 34(a) any modifications to Nexus’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 366 (arbitration) to a single arbitrator to be agreed between the parties is to be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.