306. The following provisions of this Schedule have effect for the benefit of HPU, unless otherwise agreed between the undertaker and HPU.
307. In this Schedule—
“access roads” means the access roads within the Order limits giving access to pipelines or the protected crossing;
“affected assets” means—
apparatus which would be physically affected by the relevant works;
the protected crossing where relevant works are to be carried out within 25 metres of the protected crossing; and
in relation to the exercise of an identified power, any apparatus in the protected land which would be affected by the exercise of that power;
“apparatus” means pipelines and cables owned or operated by HPU within the Order limits and includes—
any structure existing at the time when a particular action is to be taken under this Part in which apparatus is or is to be lodged or which will give access to apparatus;
any coating or special wrapping of the apparatus; and
all ancillary apparatus properly appurtenant to the pipelines, that would be treated as being associated with a pipe or systems of pipes under section 65(2) of the Pipe-Lines Act 1962(1) as if the pipelines were a “pipe-line” in section 65(1) of that Act;
“construction access plan” means a plan identifying how access will be maintained to apparatus the protected crossing and the North Tees Facilities during the proposed construction or maintenance work including—
any restrictions on general access by HPU, including the timing of restrictions;
any alternative accesses or routes of access that may be available to the undertaker using the access roads;
details of how the needs and requirements of HPU (including their needs and requirements in relation to any major works that they have notified to the other operators of the protected land as at the date when the plan is published) have been taken into account in preparing the plan;
details of how uninterrupted and unimpeded emergency access with or without vehicles will be provided at all times for HPU; and
details of how reasonable access with or without vehicles will be retained or an alternative provided for HPU to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the pipelines and the protected crossing;
“construction or maintenance works” means any works to construct, maintain, or decommission the authorised development;
“damage” includes all damage including in relation to a pipeline leakage and the weakening of the mechanical strength of a pipeline;
“engineer” means an engineer appointed by HPU for the purposes of this Order;
“HPU” means Huntsman Polyurethanes (UK) Limited (company number 03767067) whose registered office is Concordia House Glenarm Road, Wynyard Business Park, Billingham, United Kingdom, TS22 5FB;
“major works” means works by HPU requiring the closure, diversion or regulation of any roads serving the North Tees Facilities;
“North Tees Facilities” means the site of facilities at North Tees connected to or supplying HPU’s apparatus;
“operator” means any person who is responsible for the construction, operation, use, maintenance or renewal of any pipeline;
“owner” means—
in relation to the pipeline corridor, any person—
with an interest in a pipeline in the pipeline corridor;
with rights in, on, under or over the pipeline corridor in respect of a pipeline; or
with a pipeline or proposed pipeline in, on, under or over the pipeline corridor;
in relation to the access roads, any person—
with an interest in the access roads; or
with private rights of way on or over the access roads;
in relation to the protected crossing, any person—
with an interest in the protected crossing;
with rights in relation to the protected crossing; or
with pipelines in or comprising the protected crossing; and
in relation to protected land means any person falling within paragraphs (a) to (c) above;
“pipeline corridor” means the land identified as the pipeline corridor on the Sembcorp Pipeline Corridor protective provisions supporting plans;
“pipelines” means any apparatus owned or operated by HPU located in the pipeline corridor or in or comprising the protected crossing at the time the pipeline survey is carried out or as may be added between the date of the pipeline survey and the commencement of the authorised development, providing that any such additions are notified to the undertaker as soon as reasonably practicable;
“pipeline survey” means a survey of the pipeline corridor and the protected crossing to establish (if not known)—
the precise location of the pipelines and the protected crossing;
the specification of the pipelines and protected crossing including, where relevant, their composition, diameter, pressure and the products they are used to convey; and
any special requirements or conditions relating to the pipelines which differ from the requirements or conditions applying to standard pipelines of that type;
“protected crossing” means the tunnel which carries pipelines under the River Tees known as Tunnel 2;
“protected land” means such parts of the Order land as fall within—
the access roads;
the pipeline corridor; or
the protected crossing;
“relevant work” means a work which may have an effect on the operation, maintenance, abandonment of or access to any pipeline or the protected crossing;
“Sembcorp Pipeline Corridor protective provisions supporting plan” means the plan certified as the Sembcorp Pipeline Corridor protective provisions supporting plan by the Secretary of State under article 45 (certification of plans etc) for the purposes of this Order;
“specified persons” means the Operations Manager, Huntsman Polyurethanes, PO Box 99, Wilton, Redcar, TS10 4YA in relation to Huntsman Polyurethanes (UK) Limited, or such other person as they may notify to the undertaker in writing; and
“works details” means the following—
a description of the proposed works together with plans and sections of the proposed works where such plans and sections are reasonably required to describe the works concerned or their location;
details of methods and locations of any piling proposed to be undertaken under paragraph 314;
details of methods of excavation and any zones of influence the undertaker has calculated under paragraph 315;
details of methods and locations of any compaction of backfill proposed to be undertaken under paragraph 316;
details of the location of any pipelines affected by the oversailing provisions in paragraph 317, including details of the proposed clearance;
details of the method location and extent of any dredging, a technical assessment of the likely effect of the dredging on the protected crossing and any mitigation measures which are proposed to be put in place to prevent damage to the protected crossing;
details of the undertaker and their principal contractors’ management of change procedures;
details of the traffic management plan, which plan must include details of vehicle access routes for construction and operational traffic and which must assess the risk from vehicle movements and include safeguards to address identified risks;
details of the lifting study during the construction phase, which must include a technical assessment of the protection of underground assets and which study must provide for individual lift plans;
details of the lifting study during the operational phase, which must include a technical assessment of the protection of underground assets and which study must provide for individual lift plans;
details of the emergency response plan as prepared in consultation with local emergency services and the pipeline operators; and
any further particulars provided in accordance with paragraph 308(2).
308.—(1) Before commencing any part of the authorised development in the pipeline corridor or which may affect a protected crossing the undertaker must—
(a)carry out and complete the pipeline survey; and
(b)comply with sub-paragraph (3) below.
(2) The pipeline survey must be undertaken by an appropriately qualified person with at least 10 years’ experience of such surveys.
(3) When the pipeline survey has been completed the undertaker must serve a copy of the pipeline survey on HPU and invite HPU to advise the undertaker within 28 days of receipt of the survey if HPU considers that the pipeline survey is incomplete or inaccurate and if so in what respect following which the undertaker must finalise its pipeline survey.
309.—(1) Before commencing any part of a relevant work the undertaker must submit to HPU the works details in respect of any affected asset and obtain a written acknowledgement of receipt of those works details from the specified persons in relation to the affected asset concerned.
(2) The undertaker must as soon as reasonably practicable provide such further particulars as HPU may, within 30 days (or such longer period as is agreed between the parties) from the receipt of the works details under sub-paragraph (1), reasonably require.
310. No part of a relevant work is to be commenced until one of the following conditions has been satisfied—
(a)the works details supplied in respect of that relevant work under paragraph 308 have been authorised by HPU; or
(b)the works details supplied in respect of that relevant work under paragraph 308 have been authorised by an arbitrator under paragraph 311(2); or
(c)authorisation is deemed to have been given in accordance with paragraph 311(1).
311.—(1) Any authorisation by HPU required under paragraph 309(a) must not be unreasonably withheld but may be given subject to such reasonable conditions as HPU may require to be made for—
(a)the continuing safety and operation or viability of the affected asset; and
(b)the requirement for HPU to have—
(i)uninterrupted and unimpeded emergency access with or without vehicles to the affected asset at all times; and
(ii)reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the affected asset.
(2) The authorised development must be carried out in accordance with the works details authorised under paragraph 309 and any conditions imposed on the authorisation under paragraph (1).
(3) Where there has been a reference to arbitration in accordance with paragraph 311(2) and the arbitrator gives authorisation, the authorised development must be carried out in accordance with the authorisation and conditions contained in the award of the arbitrator under paragraph 311(3).
312.—(1) In the event that—
(a)no response has been received to the submission of the works details under paragraph 308 within 45 days of the undertaker obtaining a written acknowledgment of receipt from a specified person under paragraph 308(1) and no further particulars have been requested under paragraph 308(2); or
(b)authorisation has not been given within 30 days of the undertaker obtaining a written acknowledgment of receipt from a specified person of the further particulars supplied under paragraph 308(2),
approval of the works details is to be deemed to be given and the relevant works may commence.
(2) In the event that—
(a)the undertaker considers that HPU has unreasonably withheld its authorisation under paragraph 310(1); or
(b)the undertaker considers that HPU has given its authorisation under paragraph 310(1) subject to unreasonable conditions,
the undertaker may refer the matter to an arbitrator for determination under paragraph 330.
(3) Where the matter is referred to arbitration under paragraph (2) the arbitrator is to determine whether or not authorisation should be given and, if so the conditions which should reasonably be attached to the authorisation under sub-paragraph (a) and (b) of paragraph 310(1).
313. The undertaker must provide to HPU a minimum of 28 days’ notice prior to commencing any relevant work in order that an engineer can be made available to observe the relevant works and, when required, advise on the necessary safety precautions.
314. No explosives are to be used within the protected land.
315.—(1) All piling within 1.5 metres of the centreline of a pipeline must be non-percussive.
(2) Where piling is required within 50 metres of the centreline of a pipeline or which could have an effect on the operation or maintenance of a pipeline or access to a pipeline, details of the proposed method for and location of the piling must be provided to HPU for approval in accordance with paragraph 308.
316.—(1) Where excavation of trenches (including excavation by dredging) adjacent to a pipeline affects its support, the pipeline must be supported in a manner approved by HPU.
(2) Where the undertaker proposes to carry out excavations which might affect above ground structures such as pipeline supports in the pipeline corridor, the undertaker must calculate the zone of influence of those excavations and provide those calculations to HPU under paragraph 308.
317.—(1) Where a trench is excavated across or parallel to the line of a pipeline, the backfill must be adequately compacted to prevent any settlement which could subsequently cause damage to the pipeline.
(2) Proposed methods and locations of compacting must be notified to HPU in accordance with paragraph 308.
(3) Compaction testing must be carried out once back filling is completed to establish whether the backfill has been adequately compacted as referred to in sub-paragraph (1) and what further works may be necessary, and the results of such testing must be supplied to HPU.
(4) Where it is shown by the testing under sub-paragraph (3) to be necessary, the undertaker must carry out further compaction testing under sub-paragraph (1) and sub-paragraphs (1), (2) and (3) continue to apply until such time as the backfill has been adequately compacted.
(5) In the event that it is necessary to provide permanent support to a pipeline which has been exposed over the length of the excavation before backfilling and reinstatement is carried out, the undertaker must pay to HPU a capitalised sum representing the increase of the costs (if any which may be expected to be reasonably incurred in maintaining, working and, when necessary, renewing any such alterations or additions.
(6) In the event of a dispute as to—
(a)whether or not backfill has been adequately compacted under sub-paragraphs (1) to (4); or
(b)the amount of any payment under sub-paragraph (5),
the undertaker or HPU may refer the matter for arbitration under paragraph 330.
318.—(1) A minimum clearance of 1500 millimetres must be maintained between any part of the authorised development and any affected asset (whether that part of the authorised development is parallel to or crosses the pipeline) unless otherwise agreed with HPU.
(2) No manholes or chambers are to be built over or round the pipelines.
319.—(1) When carrying out the relevant work the undertaker must monitor the relevant affected assets within the Order limits to establish whether damage has occurred.
(2) Where any damage occurs to an affected asset as a result of the relevant work, the undertaker must immediately cease all work in the vicinity of the damage and must notify HPU to enable repairs to be carried out to the reasonable satisfaction of HPU.
(3) If damage has occurred to an affected asset as a result of relevant work the undertaker will, at the request and election of HPU—
(a)afford HPU all reasonable facilities to enable it to fully and properly repair and test the affected asset and pay to HPU its costs incurred in doing so including the costs of testing the effectiveness of the repairs and any further works or testing shown by that testing to be reasonably necessary; or
(b)fully and properly repair the affected asset as soon as reasonably practicable, in which case the repairs must be properly tested by the undertaker and be shown to the satisfaction of HPU to have effectively repaired the affected asset before any backfilling takes place.
(4) Where testing has taken place under sub-paragraph (3)(b), the undertaker must (except where HPU agrees otherwise in writing) provide it with a copy of the results of such testing prior to any backfilling.
(5) Following the completion of a relevant work if damage is found to have occurred to an affected asset as a result of the relevant work, sub-paragraphs (2) to (4) of this paragraph apply to that damage.
(6) In the event that the undertaker does not carry out necessary remedial work in a timely manner then HPU is entitled, but not obliged, to undertake the necessary remedial work and recover the cost of doing so from the undertaker.
320.—(1) If any damage occurs to a pipeline causing a leakage or escape from a pipeline, all work in the vicinity must cease and HPU must be notified immediately.
(2) Where there is leakage or escape of gas or any other substance, the undertaker must immediately—
(a)remove all personnel from the immediate vicinity of the leak;
(b)inform HPU;
(c)prevent any approach by the public, extinguish all naked flames and other sources of ignition for at least 350 metres from the leakage; and
(d)assist emergency services as may be requested.
321.—(1) Subject to sub-paragraph (2), in undertaking any works in relation to the protected land or exercising any rights relating to or affecting owners of the protected land, the undertaker must comply with such conditions, requirements or regulations relating to health, safety, security and welfare as are operated in relation to access to or activities in the protected land.
(2) The undertaker is not bound by any condition, requirement or regulation that is—
(a)introduced after the date on which notice of the works was given under paragraph 312; or
(b)determined by arbitration following a determination under paragraph 330 to unreasonably—
(i)create significant engineering, technical or programming difficulties; or
(ii)materially increase the cost of carrying out the works.
(3) Sub-paragraph (2) does not apply if the condition, requirement or regulation was introduced by way of legislation, direction or policy of the government, a relevant government agency, a local authority (exercising its public functions) or the police.
322.—(1) Before carrying out any construction or maintenance works affecting HPU’s access rights over the access roads, the undertaker must prepare a draft construction access plan and consult on the draft construction access plan with HPU.
(2) The undertaker must take account of the responses to any consultation referred to in sub-paragraph (1) before approving the construction access plan.
323.—(1) In preparing a construction access plan under paragraph 321 the undertaker must—
(a)establish the programme for HPU’s major works in the pipeline corridor and the North Tees Facilities and plan the construction or maintenance works to prevent or (if such conflict cannot be reasonably prevented) to minimise any conflict between the construction or maintenance works and the programmed major works; and
(b)establish where HPU’s access to the protected land, or any pipeline or the North Tees Facilities has a reasonable expectation to exercise access rights over particular access roads in respect of which rights are proposed to be restricted or extinguished, establish the purpose of that expectation and provide an alternative or replacement means of access whereby that expectation can be met.
(2) Where a reference is made to arbitration under paragraph 330 in relation to any disagreement about a construction access plan the arbitrator must have regard to—
(a)whether major works were, at the date of the consultation already programmed to take place;
(b)the extent to which the authorised development can be accommodated simultaneously with the programmed major works;
(c)the usual practice in respect of conditions or requirements subject to which authorisation to close or divert the access roads is given by the owner of the access roads;
(d)the undertaker’s programme in respect of the authorised development and the extent to which it is reasonable for it to carry out the authorised development at a different time;
(e)the availability (or non-availability) of other times during which the authorised development could be carried out;
(f)the programme in respect of the major works and the extent to which it is reasonable for HPU to carry out the major works at a different time; and
(g)the financial consequences of the decision on the undertaker and on HPU.
(3) In this paragraph, “programmed”, in relation to works, means works in respect of which the owner of the access roads has been notified of the specific dates between which the works are programmed to be carried out provided that the period covered by such dates must be length of time the works are programmed to be carried out and not a period within part of which the works are to be carried out.
324.—(1) No works affecting access rights over the access roads are to commence until 30 days after a copy of the approved construction access plan is served on HPU.
(2) Where HPU or the undertaker refers the construction access plan to arbitration for determination under paragraph 330, no works affecting access rights over the access roads may commence until that determination has been provided.
(3) In carrying out construction or maintenance works the undertaker must at all times comply with the construction access plan.
325.—(1) Before carrying out any part of the authorised development affecting HPU, the undertaker (or any contractor carrying out such works on behalf of the undertaker) must put in place a policy of insurance with a reputable insurer with the terms, cover and level of cover as may be agreed in writing between the undertaker and HPU, and evidence of that insurance must be provided on request to HPU.
(2) Not less than 30 days before carrying out any part of the authorised development on the protected land or before proposing to change the terms of the insurance policy, the undertaker must notify HPU of details of the terms or cover of the insurance policy that it proposes to put in place, including the proposed level of the cover to be provided.
(3) The undertaker (or any contractor carrying out such works on behalf of the undertaker) must maintain insurance in relation to the authorised development affecting HPU during the construction, operation, maintenance, repair and decommissioning of the authorised development in the terms and at the level of cover as may be agreed in writing between the undertaker and HPU.
326. If HPU has a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 324—
(a)HPU may refer the matter to arbitration under paragraph 330; and
(b)the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under paragraph 330 is complete, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.
327.—(1) The undertaker must repay to HPU all reasonable fees, costs, charges and expenses reasonably incurred by HPU in relation to these protective provisions in respect of—
(a)authorisation of survey details submitted by the undertaker under paragraph 307(3), authorisation of works details submitted by the undertaker under paragraph 308 and the imposition of conditions under paragraph 310;
(b)the engagement of an engineer and their observation of the authorised works affecting the pipelines and the provision of safety advice under paragraph 312;
(c)responding to the consultation on piling under paragraph 314;
(d)considering the effectiveness of any compacting which has taken place under paragraph 316, including considering and evaluating compacting testing results and the details of further compaction works under that paragraph;
(e)the repair and testing of a pipeline or protected crossing under paragraph 318;
(f)considering and responding to consultation in relation to the construction access plan under paragraph 321 and providing details of their programme for major works to the undertaker under paragraph 322; and
(g)considering the adequacy of the terms and level of cover of any insurance policy proposed or put in place by the undertaker under paragraph 324,
including the reasonable costs incurred by HPU in engaging and retaining such external experts, consultants and contractors as may be reasonably necessary to allow HPU to carry out its functions under these protective provisions.
(2) Subject to sub-paragraphs (3) and (4), if by reason or in consequence of the construction of any of the works referred to in paragraph 306, any damage is caused to the affected assets of HPU, or there is any interruption in any service provided, or in the supply of any goods, by HPU, the undertaker must—
(a)bear and pay the cost reasonably incurred by HPU in making good such damage or restoring the supply; and
(b)make reasonable compensation to HPU for any other expenses, loss, damages, penalty or costs incurred by HPU, by reason or in consequence of any such damage or interruption.
(3) Nothing in sub-paragraphs (1) or (2) 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 HPU, its officers, employees, servants, contractors or agents.
(4) HPU must give the undertaker reasonable notice of any claim or demand under sub-paragraph (2) and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(5) HPU 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 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 under this Part.
(6) In the assessment of any sums payable to HPU under this Part 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, HPU 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 or increasing the sums so payable.
(7) HPU must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, HPU must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (2). The undertaker shall only be liable under this paragraph for claims reasonably incurred by HPU.
328. The undertaker must give written notice to HPU of the terms and level of cover of any guarantee or alternative form of security put in place under article 48 (funding for compulsory acquisition compensation) and any such notice must be given no later than 28 days before any such guarantee or alternative form of security is put in place specifying the date when the guarantee or alternative form of security comes into force.
329. The undertaker, must when requested to do so by HPU, provide it with a complete set of the documents submitted to and certified by the Secretary of State in accordance with article 45 (certification of plans etc.) in electronic form.
330. Prior to the commencement of the authorised development the undertaker must prepare an emergency response plan following consultation with the local emergency services and provide a copy of that plan to HPU.
331. Any difference or dispute arising between the undertaker and HPU under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and HPU, be referred to and settled by arbitration in accordance with article 47 (arbitration).
1962 c. 58. Section 65 was amended by section 89(1) of, and paragraphs 1 and 2 of Schedule 2 to, the Energy Act 2011 (c. 16), S.I. 2000/1937 and S.I. 2011/2305.