The A47 Wansford to Sutton Development Consent Order 2023

PART 4 E+W+S FOR THE PROTECTION OF NGG AS GAS UNDERTAKER

Application E+W+S

34.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid.

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and NGG, where the benefit of this Order is transferred or granted to another person under article 10 (consent to transfer benefit of Order)—

(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between NGG and the transferee or grantee (as the case may be); and

(b) written notice of the transfer or grant must be given to NGG on or before the date of that transfer or grant.

(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to NGG (but see paragraph 44(3)(b)).

Commencement Information

I1 Sch. 9 para. 34 in force at 10.3.2023, see art. 1

Interpretation E+W+S

35.  In this Part of this Schedule—

“1991 Act” means the New Roads and Street Works Act 1991;

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

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

“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) (interpretation) of this 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 Schedule;

“commence” and “commencement” in paragraph 42 (retained apparatus: protection of gas undertaker) of this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment,

“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 or replace existing easements, agreements, 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 NGG (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, requires the undertaker to submit for NGG’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 NGG 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;

“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 40(2) (removal of apparatus) or otherwise; or

(b)

may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 40(2) or otherwise.

Commencement Information

I2 Sch. 9 para. 35 in force at 10.3.2023, see art. 1

36.  Except for paragraphs 37 (apparatus of NGG in stopped up streets), 42 (retained apparatus: protection of gas undertaker), 43 (expenses) and 44 (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 NGG, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and NGG are regulated by the provisions of Part 3 of the 1991 Act.

Commencement Information

I3 Sch. 9 para. 36 in force at 10.3.2023, see art. 1

Apparatus of NGG in stopped up streets E+W+S

37.—(1) Where any street is stopped up under article 17 (permanent stopping up and restriction of use of streets and private means of access), if NGG has any apparatus in the street or accessed via that street NGG has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to NGG, or procure the granting to NGG of, legal easements reasonably satisfactory to NGG in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or NGG to require the removal of that apparatus under paragraph 40 (removal of apparatus) or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 42 (retained apparatus: protection of gas undertaker).

(2) Notwithstanding the temporary alteration, diversion or restriction of any highway under the powers of article 16 (temporary stopping up and restriction of use of streets), NGG will be at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the alteration, diversion or restriction was in that street.

Commencement Information

I4 Sch. 9 para. 37 in force at 10.3.2023, see art. 1

Protective works to buildings E+W+S

38.  The undertaker must exercise the powers conferred by article 22 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of NGG (such consent not to be unreasonably withheld).

Commencement Information

I5 Sch. 9 para. 38 in force at 10.3.2023, see art. 1

Acquisition of land E+W+S

39.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any interest in land or apparatus or override any easement or other interest of NGG otherwise than by agreement.

(2) As a condition of an 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 NGG and the undertaker) that is 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 NGG or affect the provisions of any enactment or agreement regulating the relations between NGG and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as NGG reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between NGG and the undertaker acting reasonably and which must be no less favourable on the whole to NGG unless otherwise agreed by NGG, and it will be the responsibility of the undertaker to procure and 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) The undertaker and NGG agree that 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 but not limited to 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 NGG or other enactments relied upon by NGG as of right or other use in relation to the apparatus, then the provisions in this Schedule prevail.

(4) Any agreement or consent granted by NGG under paragraph 42 (retained apparatus: protection of gas undertaker) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Commencement Information

I6 Sch. 9 para. 39 in force at 10.3.2023, see art. 1

Removal of apparatus E+W+S

40.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of NGG 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 NGG 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 NGG 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 NGG reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to NGG to its reasonable satisfaction (taking into account paragraph 41(1)) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of, or 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, NGG must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for NGG 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 NGG and the undertaker.

(5) NGG must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to NGG of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

Commencement Information

I7 Sch. 9 para. 40 in force at 10.3.2023, see art. 1

Facilities and rights for alternative apparatus E+W+S

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

(2) If the facilities and rights to be afforded by the undertaker under sub-paragraph (1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to NGG 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 matter may be referred to arbitration in accordance with paragraph 48 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to NGG as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Commencement Information

I8 Sch. 9 para. 41 in force at 10.3.2023, see art. 1

Retained apparatus: protection of gas undertaker E+W+S

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

(2) The plan to be submitted to NGG 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 specified works until NGG has given written approval of the plan so submitted.

(4) Any approval of NGG 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) NGG 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 for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must only be executed in accordance with—

(a) the plan, submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and NGG; and

(b) such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by NGG for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and NGG will be entitled to watch and inspect the execution of those works.

(7) Where under sub-paragraph (6) NGG requires any protective works to be carried out by itself or by the undertaker such protective works (whether of a temporary or permanent nature) must be carried out to NGG’s satisfaction prior to the commencement of any specified works for which protective works are required and NGG must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) If NGG 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, paragraphs 34 to 36 and 39 to 41 apply as if the removal of the apparatus had been required by the undertaker under paragraph 40(2) (removal of apparatus).

(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 specified 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) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works—

(a) the undertaker must implement an appropriate ground mitigation scheme; and

(b) NGG 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 43 (expenses).

(11) The undertaker is not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to NGG notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11), “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Commencement Information

I9 Sch. 9 para. 42 in force at 10.3.2023, see art. 1

Expenses E+W+S

43.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to NGG within 30 days of receipt of an itemised invoice or claim from NGG all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by NGG 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 including without limitation—

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

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 40(3) (removal of apparatus); or

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

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(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 paragraph 48 (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 NGG by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that 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) Any amount which apart from this sub-paragraph would be payable to NGG 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 NGG any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Commencement Information

I10 Sch. 9 para. 43 in force at 10.3.2023, see art. 1

Indemnity E+W+S

44.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any 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 NGG, or there is any interruption in any service provided, or in the supply of any goods, by NGG, or NGG becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from NGG the cost reasonably and properly incurred by NGG in making good such damage or restoring the supply; and

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

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

(b) any part of the authorised works carried out by NGG in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 10 (consent to transfer benefit of Order).

(4) NGG must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability 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.

(5) NGG must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) NGG must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within NGG’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of NGG’s control and if reasonably requested to do so by the undertaker NGG must provide an explanation of how the claim has been minimised, where relevant.

Commencement Information

I11 Sch. 9 para. 44 in force at 10.3.2023, see art. 1

Enactments and agreements E+W+S

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

Commencement Information

I12 Sch. 9 para. 45 in force at 10.3.2023, see art. 1

Co-operation E+W+S

46.—(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or NGG requires the removal of apparatus under paragraph 40(2) (removal of apparatus) or NGG makes requirements for the protection or alteration of apparatus under paragraph 42 (retained apparatus: protection of gas undertaker), 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 works and taking into account the need to ensure the safe and efficient operation of NGG’s undertaking and NGG must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the undertaker’s or NGG’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this schedule, or agreement is required to be reached between the parties under this schedule, it must not be unreasonably withheld or delayed.

Commencement Information

I13 Sch. 9 para. 46 in force at 10.3.2023, see art. 1

Access E+W+S

47.  If in consequence of the agreement reached in accordance with paragraph 39(1) (acquisition of land) 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 NGG to maintain or use the apparatus no less effectively than was possible before such obstruction.

Commencement Information

I14 Sch. 9 para. 47 in force at 10.3.2023, see art. 1

Arbitration E+W+S

48.  Save for differences or disputes arising under [F1 paragraphs 40 (removal of apparatus) and 41] (facilities and rights for alternative apparatus), any difference or dispute arising between the undertaker and NGG under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and NGG, be determined by arbitration in accordance with article 49 (arbitration).

Textual Amendments

F1 Words in Sch. 9 para. 48 substituted (17.6.2023) by The A47 Wansford to Sutton (Corrections) Order 2023 (S.I. 2023/667), art. 1, Sch.

Commencement Information

I15 Sch. 9 para. 48 in force at 10.3.2023, see art. 1

Notices E+W+S

49.  Notwithstanding article 48 (service of notices), any plans submitted to NGG by the undertaker pursuant to paragraph 42 (retained apparatus: protection of gas undertaker) must be sent to https://lsbud.co.uk/ and National Grid Plant Protection at [e-mail] or such other address as NGG may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Commencement Information

I16 Sch. 9 para. 49 in force at 10.3.2023, see art. 1