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Articles 17 and 58
1. In this Part of this Schedule—
“authorised works” means any work, operation or activity that the Undertaker is authorised by this Order to construct or carry out;
“environmental document” means—
the environment statement prepared for the purposes of the application for this Order together with any supplementary environmental information or other document so prepared by way of clarification or amplification of the environmental statement; and
any other document containing environmental information provided by the undertaker to the Statutory Conservancy and Navigation Authority or Trinity House in connection with any direction under article 49 (provision against danger to navigation), article 50 (lights on tidal works during construction) or article 51 (permanent light on tidal works); and
“the river” means the River Humber.
2.—(1) The provisions of this Part of this Schedule, unless otherwise agreed in writing between the undertaker and the Statutory Conservancy and Navigation Authority, have effect until the commencement of the operation of the authorised development, for the protection of the Statutory Conservancy and Navigation Authority and the users of the river.
(2) For the purposes of this Part of this Schedule, the definition of “tidal work” is taken to include—
(a)any projection over the river outside the area of jurisdiction by booms, cranes and similar plant or machinery, whether or not situated within the area of jurisdiction; and
(b)any authorised work which affects the river or any functions of the Statutory Conservancy and Navigation Authority, whether or not that authorised work is within the limits of the Statutory Conservancy and Navigation Authority.
3.—(1) Prior to the commencement of the authorised development in the marine environment the undertaker must submit to the Statutory Conservancy and Navigation Authority plans (including method statements) and sections of the tidal works or operation and such further particulars as the Statutory Conservancy and Navigation Authority may, within 28 days from the day on which plans and sections are submitted under this sub-paragraph, reasonably require.
(2) Any approval of the Statutory Conservancy and Navigation Authority required under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1) and must not be unreasonably withheld but may be given subject to such reasonable requirements as the Statutory Conservancy and Navigation Authority may make for the protection of—
(a)traffic in, or the flow or regime of, the river;
(b)the use of its operational land or the river for the purposes of performing its functions; or
(c)the performance of any of its functions connected with environmental protection.
(3) Requirements made under sub-paragraph (2) may include conditions as to—
(a)the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the tidal work; and
(b)the expiry of the approval if the undertaker does not commence construction of the tidal work approved within a prescribed period.
(4) Whenever the undertaker provides the Secretary of State with an environmental document it must at the same time send a copy to the Statutory Conservancy and Navigation Authority.
4. Any operations for the construction of any tidal work approved in accordance with this Order, once commenced, must be carried out by the undertaker without unnecessary delay and to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority so that river traffic, the flow or regime of the river and the exercise of the Statutory Conservancy and Navigation Authority’s functions do not suffer more interference than is reasonably practicable, and an authorised officer of the Statutory Conservancy and Navigation Authority is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.
5.—(1) The undertaker must not without the Consent of the Statutory Conservancy and Navigation Authority—
(a)deposit in or allow to fall or be washed into the river any gravel, soil or other material; or
(b)discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise.
(2) Any consent of the Statutory Conservancy and Navigation Authority under this paragraph must not be unreasonably withheld but may be given subject to such terms and conditions as the Statutory Conservancy and Navigation Authority may reasonably impose.
(3) Any such approval is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 28 days of the day on which the request for consent is submitted under sub-paragraph (1).
(4) In its application to the discharge of water into the river, article 18 (discharge of water) has effect subject to the terms of any conditions attached to a consent given under this paragraph.
(5) The undertaker must not, in exercise of the powers conferred by article 18 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved as a tidal work under this Order or is otherwise approved in writing by the Statutory Conservancy and Navigation Authority.
6. If any pile, stump or other obstruction to navigation becomes exposed in the course of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker, as soon as reasonably practicable after the receipt of notice in writing from the Statutory Conservancy and Navigation Authority requiring such action, must remove it from the river or, if it is not reasonably practicable to remove it—
(a)cut the obstruction off at such level below the bed of the river as the Statutory Conservancy and Navigation Authority may reasonably direct; or
(b)take such other steps to make the obstruction safe as the Statutory Conservancy and Navigation Authority may reasonably require.
7. If—
(a)by reason of the construction of any tidal work it is reasonably necessary for the Statutory Conservancy and Navigation Authority to incur reasonable costs in temporarily or permanently altering, removing, resiting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Statutory Conservancy and Navigation Authority, or laying down and removing substituted moorings or buoys, or carrying out dredging operations for any such purpose, not being costs which it would have incurred for any other reason; and
(b)the Statutory Conservancy and Navigation Authority gives to the undertaker not less than 28 days’ notice of its intention to incur such costs, and takes into account any representations which the undertaker may make in response to the notice within 14 days of the receipt of the notice,
the undertaker must pay the costs reasonably so incurred by the Statutory Conservancy and Navigation Authority.
8. In addition to any requirement set out in articles 50 (lights on tidal works during construction) and 51 (permanent light on tidal works) the undertaker, at or near every tidal work, and any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level forming part of the River Humber), must exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Statutory Conservancy and Navigation Authority may from time to time reasonably require.
9. On completion of the construction of any part of a permanent authorised work, the undertaker must as soon as practicable remove—
(a)any temporary tidal work carried out only for the purposes of that part of the permanent work; and
(b)any materials, plant and equipment used for such construction,
and must make good the site to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority.
10.—(1) If any tidal work—
(a)is constructed otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph (3) (approval of detailed design of tidal works) or
(b)during construction gives rise to sedimentation, scouring, currents or wave action detrimental to traffic in, or the flow or regime of, the river,
then the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.
(2) The requirements that may be specified in a notice given under sub-paragraph (1) are—
(a)in the case of a tidal work to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—
(i)this Part of this Schedule; or
(ii)the condition that has been breached; or
(b)in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river.
(3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so, the Statutory Conservancy and Navigation Authority may in writing require the undertaker to—
(a)remove, alter or pull down the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to its former condition; or
(b)take such other action as the Statutory Conservancy and Navigation Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.
(4) If a tidal work gives rise to environmental impacts over and above those anticipated by any environmental document, the undertaker, in compliance with its duties under any enactment and, in particular, under section 48A of the Harbours Act 1964(1), must take such action as is necessary to prevent or mitigate those environmental impacts and in doing so must consult and seek to agree the necessary measures with the Statutory Conservancy and Navigation Authority.
(5) If the Statutory Conservancy and Navigation Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by any environmental document, the Statutory Conservancy and Navigation Authority must notify the undertaker of that environmental impact, the reasons why the Statutory Conservancy and Navigation Authority believes that the environmental impact is being caused by the tidal work and of measures that the Statutory Conservancy and Navigation Authority reasonably believes are necessary to counter or mitigate that environmental impact.
(6) The undertaker must implement the measures that the Statutory Conservancy and Navigation Authority has notified to the undertaker or must implement such other measures as the undertaker believes are necessary to counter the environmental impact identified, giving reasons to the Statutory Conservancy and Navigation Authority as to why it has implemented such other measures.
11.—(1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level) is abandoned or falls into decay, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.
(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—
(a)to repair and restore the work or part of it; or
(b)if the undertaker so elects, to remove the tidal work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.
(3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Statutory Conservancy and Navigation Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.
12.—(1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river without the agreement of the Statutory Conservancy and Navigation Authority and must ensure that access to such aids remains available during and following construction of any tidal works.
(2) The undertaker must provide at any tidal works, or must afford reasonable facilities at such works (including an electricity supply) for the Statutory Conservancy and Navigation Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation of users of the river in general as the Statutory Conservancy and Navigation Authority may deem necessary by reason of the construction of any tidal works, and must ensure that access remains available to apparatus during and following construction of such works.
(3) The undertaker must comply with the directions of the harbour master from time to time with regard to the lighting on the tidal works or within the harbour, or the screening of such lighting, so as to ensure safe navigation on the river.
13.—(1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which—
(a)is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and
(b)the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the Statutory Conservancy and Navigation Authority be removed or made good.
(2) The undertaker must either—
(a)pay to the Statutory Conservancy and Navigation Authority any additional expense to which the Statutory Conservancy and Navigation Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or
(b)carry out the necessary dredging at its own expense and subject to the prior approval of the Statutory Conservancy and Navigation Authority, such prior approval not to be unreasonably withheld or delayed;
and the reasonable expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Statutory Conservancy and Navigation Authority in carrying out surveys or studies in connection with the implementation of this paragraph.
14.—(1) The undertaker is responsible for and must make good to the Statutory Conservancy and Navigation Authority all reasonable financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Statutory Conservancy and Navigation Authority by reason of—
(a)the construction or operation of the authorised works or the failure of the authorised works;
(b)anything done in relation to a mooring or buoy under paragraph 8 (navigational lights, buoys, etc.); or
(c)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works,
and the undertaker must indemnify the Statutory Conservancy and Navigation Authority from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.
(2) The fact that any act or thing may have been done—
(a)by the Statutory Conservancy and Navigation Authority on behalf of the undertaker; or
(b)by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Statutory Conservancy and Navigation Authority, or in a manner approved by the Statutory Conservancy and Navigation Authority, or under its supervision or the supervision of its duly authorised representative,
does not (if it was done or required without negligence on the part of the Statutory Conservancy and Navigation Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.
(3) The Statutory Conservancy and Navigation Authority must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand is to be made without the prior consent of the undertaker.
15.—(1) Subject to the modification of any enactments in this Order and this paragraph, any function of the undertaker or any officer of the undertaker, whether conferred by or under this Order or any other enactment, is subject to—
(a)any enactment relating to the Statutory Conservancy and Navigation Authority;
(b)any byelaw, direction or other requirement made by the Statutory Conservancy and Navigation Authority or the harbour master under any enactment;
(c)any other exercise by the Statutory Conservancy and Navigation Authority or the harbour master of any function conferred by or under any enactment.
(2) The undertaker must not take any action in the river outside the area of jurisdiction under sections 57 and 65 of the 1847 Act as incorporated by article 4 (incorporation of the Act of 1847) except with the consent of the harbour master, which must not be unreasonably withheld.
(3) The dock master must not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 4 (incorporation of the Act of 1847), if to do so would conflict with a special direction given to the same vessel by the harbour master.
(4) The Statutory Conservancy and Navigation Authority must consult the undertaker before making any byelaw which directly applies to or which could directly affect the construction, operation or maintenance of the authorised development.
(5) The Statutory Conservancy and Navigation Authority or the harbour master (as appropriate) must consult the undertaker before giving any general direction which directly affects the construction, operation or maintenance of the authorised development.
16. Before commencing marine commercial operations, the undertaker must submit to the harbour master for approval a written statement of proposed safe operating procedures for access to and egress from the authorised development and must operate the authorised development only in accordance with such procedure as is approved, including any approved alteration made from time to time.
17.—(1) Before exercising any power under section 252 of the Merchant Shipping Act 1995 or under section 56 of the 1847 Act, the dock master must notify the harbour master.
(2) The dock master must comply with any reasonable instructions that the harbour master may give in relation to the exercise of the powers referred to in sub-paragraph .
18. The undertaker must consult the harbour master before submitting any oil pollution emergency plan to the Maritime and Coastguard Agency and must ensure that any such plan is compatible with the Statutory Conservancy and Navigation Authority’s existing plan known as “Humber Clean” or such other plan as supersedes “Humber Clean”.
19. The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.
20. In this Part of this Schedule—
“Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” are to be construed accordingly;
“drainage work” means—
any main river;
any land which provides or is expected to provide flood storage capacity for any main river;
any bank, wall, embankment or other structure or any appliance (in each aforementioned case) constructed or used for land drainage, flood defence or tidal monitoring in connection with a main river;
“emergency” means an occurrence which presents a risk of—
serious flooding
serious detrimental impact on drainage
serious harm to the environment
“fishery” means any waters containing fish and fish in, or mitigating to or from, such waters and the spawn, spawning ground, habitat or food or such fish;
“Habrough Marsh Drain outfall channel” means the naturally scoured channel over the intertidal area fronting the outfall structure marked ‘Structure A’, being the Habrough Marsh Drain, on the plan of Habrough Marsh Drain and Stallingborough North Beck which provides passive gravity drainage during favourable tidal conditions;
“licences” means—
the licence with reference 35/Licence/10300 granted by the British Transport Docks Board to Anglian Water Authority on 18 January 1980;
the licence with reference 35/Licence/10406 granted by the Company to the Agency on 26 November 1999; and
the licence with reference 35/Licence/10408 granted by the Company to the Agency on 26 November 1999;
“main river” has the same meaning given in section 113 of the Water Resources Act 1991;
“non-tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2016;
“the plan of Habrough Marsh Drain and Stallingborough North Beck” means the plan of that name identified in the table at Schedule 15 (documents and plans to be certified) and which is certified by the Secretary of State as the plan of Habrough Marsh Drain and Stallingborough North Beck for the purposes of the Order;
“plans” includes plans, sections, elevations, drawings, specifications, programmes, proposals, calculations, method statements and descriptions;
“protected site” means a site of special scientific interest, a special area of conservation, a special protection area, a Ramsar wetland or a marine conservation zone or legal equivalent;
“remote defence” means any berm, wall or embankment that is constructed for the purposes of preventing or alleviating flooding from, or in connection with, any main river;
“sea defence” means any bank, wall, embankment (any berm, counterwall or cross-wall connected to any such bank, wall or embankment), barrier, tidal sluice and other defence, whether natural or artificial, against the inundation of land by sea water or tidal water, including natural or artificial high ground which forms part of or makes a contribution to the efficiency of the defences of the Agency’s area against flooding, but excludes any sea defence works which are for the time being maintained by a coast protection authority under the provisions of the Coast Protection Act 1949 or by any local authority or any navigation, harbour or conservancy authority;
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within—
16 metres of the base of a sea defence which is likely to—
endanger the stability of, cause damage or reduce the effectiveness of that sea defence; or
interfere with the Agency’s access to or along that sea defence;
8 metres of the base of a remote defence which is likely to—
endanger the stability of, cause damage or reduce the effectiveness of that remote defence; or
interfere with the Agency’s access to or along that remote defence;
16 metres of a drainage work involving a tidal main river;
8 metres of a drainage work involving a non-tidal main river;
any distance of a drainage work and is otherwise likely to—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
cause obstruction to the free passage of fish or damage to the fishery;
affect the conservation, distribution or use of water resources; or
affect the conservation value of the main river and habitats in its immediate vicinity;
or which involves—
(a)an activity that includes dredging, raising or taking of any sand, silt, ballast, clay, gravel or other materials from or off the bed or banks of a drainage work (or causing such materials to be dredged, raised or taken), including hydrodynamic dredging or desilting; and
(b)any quarrying or excavation within 16 metres of a drainage work which is likely to cause damage to or endanger the stability of the banks or structure of that drainage work;
“tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the Environmental Permitting (England and Wales) Regulations 2016;
“Stallingborough North Beck outfall channel” means the naturally scoured channel over the intertidal area fronting the outfall structure marked ‘Structure B’, being the Stallingborough North Beck, on the plan of Habrough Marsh Drain and Stallingborough North Beck which provides passive gravity drainage during favourable tidal conditions; and
“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, basins, sewers and passages through which water flows except a public sewer.
21. The Agency agrees that development comprised in Work No. 1 may go up and over the sea defences (and may be part of the same structure as any sea defences) within the area shown on the works plans for Work No. 1 subject always to the terms of this Part of this Schedule.
22.—(1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of receipt of the plans reasonably request.
(2) Any submission made by the undertaker under sub-paragraph (1) and any approval given bythe Agency under this paragraph, may be in respect of all or part of a specified work.
(3) Any specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency under this paragraph or determined under paragraph 32 (disputes).
(4) Any approval of the Agency required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)subject to sub-paragraph (6), is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been reasonably requested by the Agency for approval; and
(c)may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources or for the prevention of flooding or pollution or for nature conservation in the discharge of its environmental duties.
(5) The Agency must use its reasonable endeavours to approve or refuse approval pursuant to the submission of any plans under this paragraph before the expiration of the period mentioned in sub-paragraph (4)(b).
(6) Where the plans or any further particulars submitted to the Agency for approval under sub-paragraph (1) relate to activities which are situated within or might otherwise affect a protected site the period of time specified in sub-paragraph (4)(b) is extended to 3 months to allow the Agency to consult Natural England before responding to the request for approval and the Agency’s response to that request for approval must take into account any comments received from Natural England.
(7) In the case of a refusal, the Agency must provide a written statement of the reasons for the grounds of refusal.
(8) In the event that the Agency gives an approval under this paragraph in respect of a specified work, or part of it, that specified work, or the relevant part of it, may be constructed, maintained, used, operated or decommissioned by the undertaker in accordance with the plans and particulars approved by the Agency or determined under paragraph 32 (disputes) notwithstanding anything in the licences.
23. Without limiting paragraph 22, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a)to safeguard any drainage work against damage; or
(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,
(in each case) by reason of any specified work.
24.—(1) Subject to sub-paragraphs (2) and (3), once the construction of any specified work, and any protective work required by the Agency under paragraph 23 (construction of protective works), has begun it must be constructed—
(a)without unreasonable delay in accordance with the plans and particulars approved under this Part of this Schedule by the Agency or determined under paragraph 32 (disputes); and
(b)to the reasonable satisfaction of the Agency,
and the Agency is entitled by its officer to watch and inspect the construction of such works.
(2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to begin construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it has been completed.
(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work to which the protective works relate.
25.—(1) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with this Part of this Schedule and where the Agency acting reasonably considers it necessary to avoid any of the risks specified in sub-paragraph (2) arising from the absence of such consent or from such non-compliance, the Agency may serve written notice requiring the undertaker to immediately cease all or part of the specified works to which the consent or conditions relate, as the same may be specified within the notice served, and the undertaker must immediately cease constructing such specified works or part of them until such time as it has obtained the consent or complied with the condition specified within the notice served unless the undertaker concludes, acting reasonably, that immediate cessation of the specified works or part of them would cause greater environmental damage than proceeding with the work in question and in those circumstances the undertaker must immediately serve a counter-notice on the Agency specifying its reasoning for reaching that conclusion.
(2) The risks specified in sub-paragraph (1) are—
(a)risk of flooding;
(b)risk of harm to the environment; and
(c)risk of detrimental impact on drainage.
(3) If any part of a specified work, or any protective work required by the Agency pursuant to this Part of this Schedule, is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker, at the undertaker’s own expense, to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(4) Subject to sub-paragraph (5) if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (3) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(5) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in the case of an emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined in accordance with paragraph 32 (disputes).
26.—(1) Notwithstanding anything in the licences, the undertaker must during the construction of any specified works maintain in good repair and condition and free from obstruction any drainage work to which all of the following paragraphs apply, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence—
(a)The drainage work is within the Order limits;
(b)The drainage work is one to which the specified works in question relate or which they affect (in each case) in the manner set out in the meaning given to “specified works” in paragraph 19; and
(c)The drainage work in question falls within a temporary construction compound under the control of the undertaker.
(2) If a drainage work to which sub-paragraph (1) refers is not maintained to the reasonable satisfaction of the Agency on the terms of that sub-paragraph, the Agency may by notice in writing require the undertaker to repair and restore it, or any part of it, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove the drainage work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) Subject to sub-paragraph (4) if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of a drainage work to which sub-paragraph (1) refers is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (3) the Agency must not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 32 (disputes).
(5) This paragraph does not apply to any obstruction of a drainage work expressly authorised in plans or particulars approved in writing by the Agency or determined under paragraph 32 (disputes) and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.
27. If by reason of the construction of any specified work or of the failure of any such work, the efficiency for flood defence purposes of any drainage work within the Order limits is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the impairment or damage and recover any expenditure incurred by the Agency in so doing from the undertaker.
28.—(1) If by reason of construction of any specified work or the failure of such work, the Agency’s access within the Order limits to any flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must notify the Agency immediately and provide suitable alternative means of access within the Order limits that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction occurred and such alternative access must be made available as soon as reasonably practicable after the undertaker becoming aware of such obstruction, except in the case of an emergency in which case the undertaker must provide such alternative means of access on demand.
(2) Sub-paragraph (1) does not apply to the extent that an alternative access arrangement has been agreed in writing between the undertaker and the Agency or determined in accordance with paragraph 32 (disputes).
29.—(1) The undertaker must during the construction of any specified work take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery by reason of the construction of the specified work in question.
(2) If by reason of—
(a)the construction of any specified work; or
(b)the failure of such work;
damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.
(3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and any expenditure properly and reasonably incurred by the Agency in so doing is recoverable from the undertaker.
(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any expenditure properly and reasonably incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced taking, the steps specified in the notice.
30.—(1) The undertaker must, unless otherwise agreed in writing by the Agency, for a period of 10 years beginning with the date on which any part of the authorised project within the UK marine area is begun (within the meaning given in section 155 (when development begins) of the 2008 Act monitor the paths of each of the Habrough Marsh Drain outfall channel and the Stallingborough North Beck outfall channel and report to the Agency annually whether any substantial changes to the flow or path of either such outfall channel have occurred as a result of the authorised project, such monitoring to be based on appropriate methods.
(2) In the event that, during the period of 10 years to which subparagraph (1) refers, as a direct result of the construction or operation of the authorised project either of the Habrough Marsh Drain outfall channel or the Stallingborough North Beck outfall channel have been obstructed or impaired and either—
(a)the obstruction or impairment has the potential to impede or affect the flow of water from the outfall channel into the River Humber; or
(b)the efficiency of any ordinary watercourse for flood defence or land drainage purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action,
the undertaker must as soon as reasonably practicable (and in any event within 28 days, unless otherwise agreed with the Agency in writing) set out in writing for approval by the Agency the steps it proposes for making good such obstruction or impairment to the outfall channel and the timescales for it doing so.
(3) The undertaker must carry out the steps approved by the Agency within the timescales it has approved (in each case) pursuant to sub-paragraph (2) to the reasonable satisfaction of the Agency and, if the undertaker fails to do so, the Agency may carry them out and recover from the undertaker the expense reasonably incurred by it in so doing.
31.—(1) The undertaker must repay the Agency all proper and reasonable costs, charges and expenses which the Agency reasonably incurs—
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and
(c)in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works or any protective works,
and, for the avoidance of doubt, sub-paragraph (2) does not apply to the costs, charges and expenses to which this sub-paragraph refers.
(2) Subject to sub-paragraphs (3) to (7), the undertaker is responsible for and indemnifies the Agency against all costs and losses, liabilities, claims and demands not otherwise provided for in this Schedule which may be reasonably incurred or suffered by the Agency by reason of, or arising out of—
(a)the construction, operation or maintenance of any specified works comprised within the authorised development or the failure of any such works comprised within them; or
(b)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised development or dealing with any failure of the authorised development.
(3) For the avoidance of doubt, but subject to sub-paragraphs (4) to (7), in sub-paragraph (2)—
(a)“costs” includes—
(i)expenses and charges;
(ii)staff costs and overheads;
(iii)legal costs;
(b)“losses” includes physical damage.
(c)“claims” and “demands” include as applicable—
(i)costs (within the meaning of paragraph 31(3)(a) incurred in connection with any claim or demand;
(ii)any interest element of sums claimed or demanded;
(d)“liabilities” includes—
(i)contractual liabilities;
(ii)tortious liabilities (including liabilities for negligence or nuisance);
(iii)liabilities to pay statutory compensation or for breach of statutory duty; and
(iv)liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).
(4) The Agency must give to the undertaker reasonable notice of any such costs or losses, liabilities, claims or demands and must not settle or compromise any of them without the agreement of the undertaker and that agreement must not be unreasonably withheld or delayed.
(5) The Agency must at all times take all reasonable steps to prevent and mitigate any such claims, demands, proceedings, liabilities, costs, damages, expenses or losses.
(6) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under the provisions of this Part of this Schedule.
(7) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any costs or losses, liabilities, claims or demands to the extent that they are attributable to the neglect, default or wilful misconduct of the Agency, its officers, servants, contractors or agents.
32. Any dispute arising between the undertaker and the Agency under this Part of this Schedule must, if the parties agree, be determined by arbitration under article 61 (arbitration), but failing agreement be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Transport or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other.
33. For the protection of Northern Powergrid, unless otherwise agreed in writing between the undertaker and Northern Powergrid, the following provisions have effect for the duration of the construction of the authorised works, including—
(a)where a diversion or replacement of Northern Powergrid’s apparatus directly related to the authorised project is required during the construction phase of this Order and is undertaken pursuant to this Order (or any related correction or non-material amendment order); and
(b)where decommissioning works of Northern Powergrid’s apparatus directly related to the authorised project are required and are undertaken pursuant to this Order (or any related correction or non-material amendment order),
the following provisions have effect for as long as it takes for the diversion, replacement or decommissioning to be completed.
34. In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable Northern Powergrid to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by Northern Powergrid and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“authorised works” means so much of the works authorised by this Order which affect existing Northern Powergrid’s apparatus within the Order limits;
“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;
“Northern Powergrid” means Northern Powergrid (Yorkshire) PLC (Company Number 04112320) whose registered address is Lloyds Court, 78 Grey Street, Newcastle upon Tyne NE1 6AF; and
“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 and must include measures proposed by the undertaker to ensure the grant of sufficient land or rights in land necessary to mitigate the impacts of the works on Northern Powergrid’s undertaking.
35. Regardless of any provision in this Order or anything shown on the land plans the undertaker must not acquire any apparatus or override any easement or other interest of Northern Powergrid otherwise than by agreement with Northern Powergrid, such agreement not to be unreasonably withheld or delayed.
36.—(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 Northern Powergrid’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Northern Powergrid to maintain that apparatus in that land and gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided pursuant to a completed easement which must include rights to retain and subsequently maintain the apparatus being replaced or diverted and any access rights to it for the lifetime of that alternative apparatus all to the reasonable satisfaction of Northern Powergrid in accordance with sub-paragraphs (2) to (5).
(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, the undertaker must give to Northern Powergrid 42 days’ advance 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 Northern Powergrid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Northern Powergrid 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.
(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 Northern Powergrid must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible and at the cost of the undertaker (subject to prior approval by the undertaker of its estimate of costs of doing so) use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed. For the avoidance of doubt this sub-paragraph only applies in relation to the voluntary acquisition of the other land or rights and does not include or require the use of Northern Powergrid’s compulsory purchase powers.
(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 Northern Powergrid and the undertaker or in default of agreement settled by arbitration in accordance with article 61 (arbitration).
(5) Northern Powergrid must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 61, and after the grant to Northern Powergrid 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.
37.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Northern Powergrid 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 Northern Powergrid or in default of agreement settled by arbitration in accordance with article 61 (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 Northern Powergrid 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 Northern Powergrid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
38.—(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 (including conducting any activities whether intentionally or unintentionally, through for example ground or machinery collapse, which may affect Northern Powergrid’s apparatus or encroach on safety distances to live equipment), or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 36 (removal of apparatus), the undertaker must submit to Northern Powergrid a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by Northern Powergrid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Northern Powergrid is entitled to watch and inspect the execution of those works.
(3) Any requirements made by Northern Powergrid under sub-paragraph (2) must be made within a period of 42 days beginning with the date on which a plan, section and description under sub-paragraph (1) is submitted to it.
(4) If Northern Powergrid 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, paragraph 36 (removal of apparatus) and 37 (facilities and rights for alternative apparatus) apply as if the removal of the apparatus had been required by the undertaker under paragraph 36.
(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 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.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to Northern Powergrid notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
39.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to Northern Powergrid within 50 days of receipt of a valid VAT invoice all reasonable and proper expenses costs or charges incurred by Northern Powergrid—
(a)in, or in connection with, the inspection, removal, 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 36(3) including without limitation—
(i)any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that it is agreed Northern Powergrid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 36(4) all costs reasonably incurred as a result of such action;
(ii)in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
(iii)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(iv)the approval of plans;
(v)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(vi)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); and
(b)in assessing and preparing a design for its apparatus to address and accommodate the proposals of the undertaker whether or not the undertaker proceeds to implement those proposals or alternative or none at all,
provided that if it so prefers Northern Powergrid may abandon apparatus that the undertaker does not seek to remove in accordance with paragraph 36(2) having first decommissioned such apparatus.
(2) Where any payment falls due pursuant to sub-paragraph (1) Northern Powergrid—
(a)must provide an itemised invoice or reasonable expenses claim to the undertaker; and
(b)must provide ‘reminder letters’ to the undertaker for payment to be made within the 50 days on the following days after the invoice or reasonable expenses claim to the undertaker—
(i)15 days (‘reminder letter 1’);
(ii)29 days (‘reminder letter 2’);
(iii)43 days (‘reminder letter 3’); and
(c)may commence debt proceedings to recover any unpaid itemised invoice or reasonable expenses claim on the fifty first day of receipt of the same where payment has not been made.
(3) Nothing in sub-paragraph (1) requires the undertaker to repay any expense cost or charge for which Northern Powergrid is liable to the undertaker or a third party as a consequence of any default, negligence or omission by Northern Powergrid, its officers, employees, servants, contractors or agents.
(4) There is to 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 that value being calculated after removal and for the avoidance of doubt, if the apparatus removed under the provisions of this Part of this Schedule has nil value, no sum will be deducted from the amount payable under sub-paragraph (1) 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, 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 61 (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 Northern Powergrid by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible on account of project time limits and/or supply issues to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs must be borne by the undertaker.
(5) For the purposes of sub-paragraph (4)—
(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such an extension is required in consequence of the execution of any such works as are referred to in paragraph 36(2) (removal of apparatus); and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(6) The undertaker will not be liable for any claim by Northern Powergrid for charges, costs or expenses under this paragraph 39 unless prior to Northern Powergrid undertaking the relevant works or incurring those charges, costs or expenses, the undertaker has—
(a)received an estimate of that charge, cost or expense along with all necessary supporting information required to evidence the amount and reasonableness of, and the reasonable steps taken to minimise, the charge, cost or expense and a timescale in which the undertaker will be required to make payment; and
(b)approved the estimate in writing (such approval not to be unreasonably withheld or delayed),
and Northern Powergrid must not commence any work in relation to which an estimate is submitted until it has been agreed in writing by the undertaker.
(7) The undertaker will use reasonable endeavours to agree the amount of any estimates submitted to it under sub-paragraph (6) within 15 working days of receipt, and must acknowledge as part of its approval that any estimate is only an estimate and may be subject to change.
(8) Subject to Northern Powergrid updating the undertaker by way of submission of an updated estimate for approval under sub-paragraph (6) where any charges, costs or expenses are anticipated to exceed an approved estimate, the undertaker’s approval of an estimate must in no way limits National Powergrid’s recovery under this paragraph 39, and the undertaker must pay the actual costs incurred by Northern Powergrid and submitted for payment whether such costs are above or below the estimate provided and upon making payment under this paragraph, the undertaker may—
(a)confirm to Northern Powergrid that the charge, cost or expense is accepted; or
(b)confirm to Northern Powergrid that the charge, cost or expense is not accepted and the reasons why it considers this to be the case,
and Northern Powergrid must take in to account any representations made by the undertaker in accordance with sub-paragraph (8)(b) and must following receipt of such representations confirm whether or not the requested refund, or any part thereof, is accepted or rejected, and the reasons why it considered this to be the case; and make payment of the requested refund, or part of it which is not rejected, as applicable (such confirmation or payment not to be unreasonably withheld or delayed).
(9) Either party may refer any difference or dispute arising out of sub-paragraph (8)(b) to arbitration in accordance with article 61 (arbitration) of the Order.
40.—(1) Subject to sub-paragraphs (2) to (5), if by reason or in consequence of the construction of any of the works referred to in paragraph 36(3) (removal of apparatus) or in consequence of the 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 it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Schedule any subsidence resulting from any of these works, 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 Northern Powergrid, or there is any interruption in any service provided by Northern Powergrid, or Northern Powergrid becomes liable to pay any amount to a third party as a consequence of any default, negligence or omission by the undertaker in carrying out the authorised works, the undertaker must—
(a)bear and pay the cost reasonably incurred by Northern Powergrid in making good such damage or restoring the supply; and
(b)indemnify Northern Powergrid for any other expenses, loss, damages, penalty, proceedings, claims or costs incurred by or recovered from Northern Powergrid,
by reason or in consequence of any such damage or interruption or Northern Powergrid becoming liable to any third party.
(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 Northern Powergrid, its officers, employees, servants, contractors or agents.
(3) Northern Powergrid 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, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) Northern Powergrid 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 40 applies. If requested to do so by the undertaker, Northern Powergrid must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (1). The undertaker is only liable under this paragraph 40 for claims reasonably incurred by Northern Powergrid.
(5) Where Northern Powergrid is liable to pay any amount to a third party as described in sub-paragraph (1), the total liability of the undertaker to Northern Powergrid under sub-paragraph ((1) in respect of each third party claim must be limited to the extent that Northern Powergrid has properly paid expenses, losses, demands, damages, claims, penalties, costs, interest or any other liability arising from any proceedings to such third party pursuant to—
(a)any statutory compensation scheme, obligation pursuant to its transmission license, or any agreement regulated thereby; and
(b)an award of damages by a court or a settlements or compromise of a claim, demand or proceeding provided that Northern Powergrid will not admit liability or offer to settle with a third party without the undertaker’s consent (not to be unreasonably withheld or delayed).
41. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Northern Powergrid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made; except that in the event of an inconsistency between a term of this Part of this Schedule and a term of—
(a)the wayleave between (1) Lord Worsley and (2) Yorkshire Electricity Board entered into on or around 1966;
(b)the wayleave between (1) The Right Honourable Kenneth Peter Lyle Fourth Earl of Inchape and (2) Northern Powergrid dated 26 May 2016;
(c)the licence between (1) British Transport Docks Board and (2) Yorkshire Electricity Board dated 27 November 1973;
(d)the licence between (1) British Transport Commission and (2) Yorkshire Electricity Board dated 16 October 1962;
(e)the licence between (1) Lord Worsley and (2) Yorkshire Electricity Board dated 19 July 1962;
(f)the licence between (1) Lord Worsley and (2) Yorkshire Electricity Board dated 25 October 1957; and
(g)the licence between (1) British Transport Docks Board and (2) Yorkshire Electricity Board dated 14 May 1965,
the term of this Part of this Schedule applies.
42. Where in consequence of the proposed construction of any of the authorised development, the undertaker or Northern Powergrid requires the removal of apparatus under paragraph 36 (removal of apparatus) or otherwise or Northern Powergrid makes requirements for the protection or alteration of apparatus under paragraph 38 (retained apparatus), the undertaker must use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and the need to ensure the safe and efficient operation of Northern Powergrid’s undertaking taking into account the undertaker’s desire for the efficient and economic execution of the authorised development and the undertaker and Northern Powergrid must use all reasonable endeavours to co-operate with the undertaker for those purposes.
43. The plans submitted to Northern Powergrid by the undertaker pursuant to this Part of the Schedule must be sent to Northern Powergrid at property@northernpowergrid.com or such other address as Northern Powergrid may from time to time appoint instead for that purpose and notify to the undertaker in writing.
44. Where practicable, the undertaker and Northern Powergrid will make reasonable efforts to liaise and co-operate in respect of information that is relevant to the safe and efficient construction of the authorised development. Such liaison must be carried out where any works are—
(a)within 15 m of any above ground apparatus; or
(b)are to a depth of between 0-4 m below ground level.
45. For the protection of Anglian Water the following provisions have effect until the commencement of the operation of the authorised development, unless otherwise agreed in writing between the undertaker and Anglian Water.
46. In this Part of this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in a manner no less efficient than previously;
“Anglian Water” means Anglian Water Services Limited;
“apparatus” means—
works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage including for the avoidance of doubt any decommissioned works, mains, pipes or other apparatus;
any drain or works vested in Anglian Water under the Water Industry Act 1991(2);
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act;
any drainage system constructed for the purpose of reducing the volume of surface water entering any public sewer belonging to Anglian Water; and
includes a sludge main, disposal main 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, and for the purpose of this definition, where words are defined by section 219 of that Act, they are taken to have the same meaning;
“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.
47. The undertaker, in the case of the powers conferred by article 20 (protective works), must (unless otherwise agreed with Anglian Water in writing) exercise those powers so as not to obstruct or render less convenient the access to any apparatus.
48. 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.
49.—(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 Anglian Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Anglian Water to maintain that apparatus in that land must not be extinguished, until—
(a)alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Anglian Water in accordance with sub-paragraphs (2) to (8); and
(b)facilities and rights have been secured for that alternative apparatus in accordance with paragraph 50 (facilities and rights for alternative apparatus).
(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, the undertaker must give to Anglian Water 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 the undertaker reasonably needs to remove any of Anglian Water’s apparatus) the undertaker must, subject to sub-paragraph (3), afford to Anglian Water 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.
(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 Anglian Water 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 Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 61 (arbitration).
(5) Anglian Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 61 (arbitration), and after the grant to Anglian Water 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.
(6) Regardless of anything in sub-paragraph (5), if Anglian Water gives notice in writing to the undertaker that it desires the undertaker to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker or to the extent that Anglian Water fails to proceed with that work in accordance with sub-paragraph (5) or the undertaker and Anglian Water otherwise agree, that work, instead of being executed by Anglian Water, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Anglian Water.
(7) If Anglian Water fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved. For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which must remain the sole responsibility of Anglian Water or its contractors.
(8) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker must, before taking or requiring any further step in such substitution works, use best endeavours to comply with Anglian Water’s reasonable requests for a reasonable period of time to enable Anglian Water to—
(a)make network contingency arrangements;
(b)bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.
50.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Anglian Water 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 Anglian Water or in default of agreement settled by arbitration in accordance with article 61 (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 Anglian Water 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 Anglian Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
(3) Such facilities and rights as are set out in this paragraph are deemed to include any statutory permits granted to the undertaker in respect of the apparatus in question, whether under the Environmental Permitting (England and Wales) Regulations 2016(3) or other legislation.
51.—(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 (or any means of access to it) the removal of which has not been required by the undertaker under paragraph 49, the undertaker must submit to Anglian Water a plan of the works to be executed.
(2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Anglian Water is entitled to watch and inspect the execution of those works.
(3) Any requirements made by Anglian Water under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1)is submitted to it.
(4) If Anglian Water 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, sub-paragraphs (1) to (3), (6) and (7), apply as if the removal of the apparatus had been required by the undertaker under paragraph 49(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 instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(6) The undertaker is not required to comply with sub-paragraph in a case of emergency but in that case must give to Anglian Water notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances, using its best endeavours to keep the impact of those emergency works on Anglian Water’s apparatus, on the operation of its water and sewerage network and on end-users of the services Anglian Water provides to a minimum.
(7) For the purposes of sub-paragraph (2) and without prejudice to the generality of the principles set out in that sub-paragraph, works are deemed to be in land near Anglian Water’s apparatus (where it is a pipe) if those works fall within the following distances measured from the medial line of such apparatus—
(a)2.25 metres where the diameter of the pipe is less than 250 millimetres;
(b)3 metres where the diameter of the pipe is between 250 and 400 millimetres; and
(c)where works fall within 7 metres of pipes with a diameter exceeding 400 millimetres a distance not exceeding 7 metres to be agreed on a case by case basis (both parties acting reasonably) and before the submission of the plan under sub-paragraph (1).
52.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to Anglian Water all expenses reasonably incurred by Anglian Water in, or in connection with, the inspection, removal, 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 this Part of this Schedule.
(2) There must 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 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 61 (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 Anglian Water by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus is not to 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 is to be treated as if it also had been agreed or had been so determined.
53.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in articles 47 (protective works to buildings) or 49(2) (removal of apparatus), or by reason of any subsidence resulting from such development or 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 those works) or property of Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—
(a)bear and pay the cost reasonably incurred by Anglian Water in making good such damage or restoring the supply; and
(b)make reasonable compensation to Anglian Water for any other expenses, loss, damages, penalty or costs incurred by the undertaker,
by reason or in consequence of any such damage or interruption.
(2) The fact that any act or thing may have been done by Anglian Water on behalf of the undertaker or in accordance with a plan approved by Anglian Water or in accordance with any requirement of Anglian Water or under its supervision does not, subject to sub-paragraph (3) excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Anglian Water fails to carry out and execute the works properly with due care and attention and in a skilful and professional 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 with respect to any damage or interruption to the extent that it is attributable to the unlawful or unreasonable act, neglect or default of Anglian Water, its officers, servants, contractors or agents.
(4) Anglian Water 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 (such consent not to be unreasonably withheld or delayed) 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.
54. Where in consequence of the proposed construction of any of the authorised development, the undertaker or Anglian Water requires the removal of apparatus under paragraph 49(2) (removal of apparatus) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph 49(4), the undertaker must use all reasonable 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 Anglian Water’s undertaking, using existing processes where requested by Anglian Water, provided it is appropriate to do so, and Anglian Water must use all reasonable endeavours to co-operate with the undertaker for that purpose.
55. Where the undertaker identifies any apparatus which may belong to or be maintainable by Anglian Water but which does not appear on any statutory map kept for the purpose by Anglian Water, it must inform Anglian Water of the existence and location of the apparatus as soon as reasonably practicable.
56. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Anglian Water in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made; except that in the event of an inconsistency between a term of this Part of this Schedule and a term of—
(a)the licence between (1) Humber Conservancy Board and (2) Grimsby Rural District Council dated 1 July 1920;
(b)the licence between (1) British Transport Docks Board and (2) Grimsby Rural District Council dated 28 March 1969; and
(c)the licence between (1) British Transport Docks Board and (2) North East Lincolnshire Water Board dated 18 May 1970,
the term of this Part of this Schedule applies.
57. The undertaker and Anglian Water may by written agreement substitute any period of time for those periods set out in this Part of this Schedule.
58. The following 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 60, any other person on whom rights or obligations are conferred by that paragraph.
59. In this Part of this Schedule—
“asset protection agreement” means an agreement, should such be required, to regulate the construction and maintenance of the specified work in a form to be agreed from time to time between the undertaker and Network Rail;
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
“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 by the Secretary of State in exercise of their powers under section 8 of the Railways Act 1993;
“Network Rail” means Network Rail Infrastructure Limited with company number 02904587 and whose registered office is at Waterloo General Office, London SE1 8SW, 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 of the Companies Act 2006) 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, and any successor to Network Rail Infrastructure Limited’s railway undertaking;
“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;
“protective works” means any works specified by the engineer under paragraph 62(4);
“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—
any station, land, works, apparatus and equipment belonging to Network Rail or a tenant or licensee of Network Rail or connected with any such railway; and
any easement or other property interest held or used by Network Rail or a tenant or licensee of Network Rail for the purposes of such railway or works, apparatus or equipment; and
“regulatory consents” means any consent or approval required under—
the Railways Act 1993;
the network licence; or
any other relevant statutory or regulatory provisions,
by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development;
“specified work” means so much of any of the authorised development as is or is to be situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 6 (extent of certain works) in respect of such works.
60.—(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 or rights over 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.
61.—(1) The undertaker must not exercise the powers conferred by article 33(1)(b) (extinguishment of rights of statutory undertakers) in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
(2) The undertaker must not under the powers of this Order do anything—
(a)which would result in railway property being incapable of being used or maintained except where the incapability of such use and maintenance is temporary and is with the consent of Network Rail; or
(b)which would affect the safe running of trains on the railway but, for the avoidance of doubt, this does not apply where Network Rail upon prior written request by the undertaker has consented not to run trains on the railway temporarily.
(3) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.
(4) Where Network Rail is asked to give its consent under this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it will never be unreasonable to withhold consent on reasonable operational or railway safety grounds.
62.—(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 61 (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 communicated disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to communicate 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 communicated approval or disapproval, the engineer 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 approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable 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 decommissioning 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 in question until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.
63.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 62 must, when commenced, be constructed—
(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under article 61 (arbitration);
(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 on it 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 or a protective work, the undertaker must, regardless of 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 employees, contractors or agents or any liability on Network Rail with respect to any damage, costs, expenses or loss attributable to the negligence of the undertaker or its employees, contractors or agents.
64. The undertaker must—
(a)at all times afford reasonable facilities to the engineer for access to a specified work or a protective work during its construction; and
(b)supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or a protective work or the method of constructing it.
65. Network Rail must at all times afford reasonable facilities to the undertaker and its employees, contractors or 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.
66.—(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 a protective 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 or additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances 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 or 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 or a protective work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work or the protective work because which in the opinion of the engineer it 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 or the protective work is to be constructed, Network Rail must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any approval of the specified work or protective work in question under paragraph 62, 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 or protective work.
(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 67 provide such details of the formula or method of calculation 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.
67.—(1) 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 63(1) or in constructing any protective works under the provisions of paragraph 63(1) 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 or a protective work;
(c)in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers 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 or a protective work;
(d)in respect of any special traffic working resulting from any speed restrictions which may in the reasonable opinion of the engineer be required to be imposed by reason or in consequence of the construction or failure of a specified work or a protective 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 or a protective work.
68.—(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 62(1) 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 reasonably 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 62(1)) in order to identify all potential causes of EMI and the measures reasonably required to eliminate them;
(b)Network Rail must make available to the undertaker all information in the possession of Network Rail 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 approved by Network Rail, acting reasonably, and in relation to such modifications paragraph 62(1) has effect subject to this sub-paragraph.
(6) Prior to the commencement of operation of the authorised development the undertaker must test the use of the authorised development in a manner that must first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing 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 reasonably 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;
(c)Network Rail must make available to the undertaker any additional material information in its possession requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and
(d)the undertaker must not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.
(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)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph (6).
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 72(1) 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 67(1)(a), any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
69. If at any time after the completion of a specified work or a protective 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 or the protective 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 or protective work in such state of maintenance as not adversely to affect railway property.
70. The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work or a protective 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.
71. 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 or protective 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.
72.—(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 or operation of a specified work or a protective work or the failure of it;
(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 or a protective work;
(c)by reason of any act or omission of the undertaker or any person in its employment or of its contractors or others whilst accessing to or egressing from the authorised development;
(d)in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;
(e)in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development,
and the undertaker indemnifies and must keep indemnified Network Rail in respect of such costs, from and against all claims and demands arising out of or in connection with a specified work or protective 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 the engineer′s 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 written consent of the undertaker.
(3) The sums payable by the undertaker under sub-paragraph (1) if, relevant, 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 specified work, including but not limited to 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 of the Railways Act 1993.
73. 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 pursuant to this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 72(5) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).
74. 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.
75. 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.
76. 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.
77. The undertaker must give written notice to Network Rail where any application is proposed to be made by the undertaker for the Secretary of State’s consent under article 46 (benefit of Order), except in respect of the deemed marine licence, 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.
78. The undertaker must no later than 28 days from the date that the plans and documents referred to in article 63 (certification of documents, public register, etc.) are certified by the Secretary of State provide a set of those plans and documents to Network Rail.
79. The provisions of this Part of this Schedule apply whilst any part of the authorised project is being constructed for the protection of the authority unless otherwise agreed between the undertaker and the authority.
80. In this Part of this Schedule—
“authority” means North East Lincolnshire Council (as lead local flood authority within the meaning of the Flood and Water Management Act 2010);
“authorised officer” means an officer authorised by the authority;
“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are construed accordingly;
“drainage work” means any ordinary watercourse and includes any land which is expected to provide flood storage capacity for an ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse;
“ordinary watercourse” has the meaning as given in section 72 (interpretation) of the Land Drainage Act 1991;
“plans” includes sections, drawings, specifications and method statements; and
“specified work” means any works carried out in relation to or which may affect any ordinary watercourse, drain or culvert in a manner that would be likely to affect the flow of the watercourse, drain or culvert.
81.—(1) Before beginning to construct any specified work, the undertaker must submit to the authority plans of the specified work and such further particulars available to it as the authority may within 28 days of the receipt of the plans reasonably require.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the authority, or determined under sub-paragraph (3).
(3) Any approval of the authority required under sub-paragraph (2)—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been given if it is neither given nor refused within 28 days of the receipt of the plans for approval or where further particulars are submitted under sub-paragraph (1) within 28 days of the submission of those particulars, and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and
(c)may be given subject to such reasonable requirements as it may make for the protection of any drainage work or for the prevention of flooding; and
(d)the authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (b).
82.—(1) Without limitation on the scope of paragraph 81, the requirements which the authority may make include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including any new works as well as alterations to existing works) as are reasonably necessary—
(a)to safeguard any drainage work against damage, or
(b)to secure that the efficiency of any ordinary watercourse for flood defence or land drainage purposes is not impaired and that the risk of flooding is not otherwise increased,
by reason of the specified work.
83.—(1) Subject to sub-paragraph (3), any specified work, and all protective works required by the authority under paragraph 82 must be constructed—
(a)without unreasonable delay in accordance with the plans approved or settled under this Part of this Schedule; and
(b)to the reasonable satisfaction of the authority,
and an authorised officer of the authority is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to the authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.
(3) If any part of a specified work or any protective work required by the authority over or under any ordinary watercourse is constructed otherwise than in accordance with the requirements of this Part of Schedule, the authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the authority reasonably requires.
(4) Subject to sub-paragraph (5) and paragraph 81, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the authority may execute the works specified in the notice and any reasonable expenditure incurred by it in so doing is recoverable from the undertaker.
(5) In the event of any dispute as to whether sub-paragraph (3) is applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the authority must not except in an emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.
84.—(1) Subject to sub-paragraph (2) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated on land held by the undertaker for the purposes of or in connection with the specified works within the Order limits, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the authority it may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the authority reasonably requires.
(3) Subject to sub-paragraph (4) and paragraph 81, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the authority must not, except in a case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.
(5) This paragraph does not apply to—
(a)drainage works which are vested in the authority, or which the authority or another person is liable to maintain and is not precluded by the powers of the Order from doing so; and
(b)any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.
85. Subject to paragraph 84, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any ordinary watercourse for flood defence or land drainage purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the authority and if the undertaker fails to do so, the authority may make good the same and recover from the undertaker the proper and reasonable expense reasonably incurred by it in so doing.
86.—(1) The undertaker must repay the authority all proper and reasonable costs, charges and expenses which the authority may reasonably incur or have to pay or which it may sustain—
(a)in the examination or approval of plans under this Part of this Schedule; and
(b)in the inspection of the construction of the specified work in respect of an ordinary watercourse or any protective works required by the authority under this Part of this Schedule.
(2) The maximum amount payable to the authority under sub-paragraph (1)(a) or (1)(b) is to be the same as would have been payable to the authority in accordance with the scale of charges for pre-application advice and land drainage consent applications published by the authority from time to time.
87.—(1) Without affecting the other provisions of this Part of this Schedule, the undertaker must indemnify the authority from all claims, demands, proceedings, costs, charges, penalties, damages, expenses and losses, which may be made or taken against, recovered from, or incurred by, the authority by reason of—
(a)any damage to any drainage work so as to impair its efficiency for flood defence or land drainage purposes;
(b)any raising or lowering of the water table in land adjoining or affected by a specified work or adjoining any sewers, drains and watercourses; or
(c)any flooding, increased flooding or impaired drainage of any such lands as are mentioned in paragraph 85,
(d)any claim in respect of pollution under the Control of Pollution Act 1974;
(e)damage to property including property owned by third parties; or
(f)injury to or death of any person,
which is caused by the construction of any of the specified works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work.
(2) The authority must give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.
(3) The authority must at all times take reasonable steps to prevent and mitigate any such claims demands proceedings costs charges penalties damages expenses and losses.
88. The fact that any work or thing has been executed or done by the undertaker in accordance with plans approved by the authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not (in the absence of negligence on the part of the authority, its officers, contractors or agents) relieve the undertaker from any liability under the provisions of this Part of this Schedule.
89. Any dispute arising between the undertaker and the authority under this Part of this Schedule is to be determined by arbitration in accordance with article 61 (arbitration).
90. For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect during the construction of the authorised works (as defined in this Part of this Schedule) and for a further period of 18 months from completion of the authorised works (as defined in this Part of this Schedule).
91. In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the satisfaction of Cadent to enable Cadent 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 (including transformed rectifiers and any associated groundbeds or cables) belonging to or maintained by Cadent 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 Cadent 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 (interpretation) of this Order and includes any associated development authorised by this Order;
“Cadent” means Cadent Gas Limited and includes its successors in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;
“commence” has the same meaning as in Schedule 2 (requirements) of this Order and “commencement” is to be construed to have the same meaning save that for the purposes of this Part of this Schedule the terms “commence” and “commencement” include any below ground surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground condition, the receipt and erection of construction plant and equipment, and non-intrusive investigations for the purpose of assessing ground operations for the purposes of archaeological or ecological investigations and investigations of the existing condition of the ground or of structures and the diversion, laying and construction of services;
“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, 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 Cadent (such approval not to be unreasonably withheld or delayed and 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 retain, lay, construct, inspect, maintain, protect, use, access, enlarge, replace, renew, remove, decommission or render unusable 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;
“rights” includes rights and restrictive covenants, and in relation to decommissioned apparatus the surrender of rights, release of liabilities and transfer of decommissioned apparatus; and
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
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 sub-paragraph 96(2) or otherwise;
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 96(2) or otherwise; or
include any of the activities that are referred to in CD/SP/SSW/22 (Cadent′s policies for safe working in the vicinity of Cadent′s Assets).
92.—(1) Except for paragraphs 93 (apparatus of Cadent in stopped up streets), 96 (removal of apparatus) in so far as sub-paragraph 96(2) applies, 97 (facilities and rights for alternative apparatus) in so far as its sub-paragraph 97(1) applies, 98 (retained apparatus: protection of Cadent), 99 (expenses) and 100 (indemnity) which will apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of Cadent, 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) Paragraphs 96 and 97 of this Agreement will 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 8 (application of the 1991 Act) or any other powers in the Order generally, section 85 of the 1991 Act in relation to cost sharing and the regulations made under it will not apply in relation to any diversion of apparatus of Cadent under the 1991 Act.
93.—(1) Without prejudice to the generality of any other protection afforded to Cadent elsewhere in this Order, where any street is stopped up under article 11 (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 of, legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street or highway but nothing in this paragraph affects any right of the undertaker or of Cadent to require the removal of that apparatus under paragraph 96.
(2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 13 (temporary stopping up and prohibition or restriction of use of streets and public rights of way), Cadent will be at liberty at all times to take all necessary access across any such stopped up highway or to execute and do all such works and things in, upon or under any such highway as it would have been entitled to do immediately before such temporary stopping up or diversion in respect of any apparatus which at the time of the stopping up or diversion was in that highway.
94.—(1) The undertaker, in the case of the powers conferred by article 20 (protective works), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of Cadent or any interruption in the supply of gas by Cadent, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and, subject to sub-paragraph (2), must—
(a)pay compensation to Cadent for any loss sustained by it; and
(b)indemnify Cadent against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by Cadent, by reason of any such damage or interruption.
(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of Cadent or its contractors or workmen; and Cadent must give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise of it must be made by Cadent, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.
95.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right or apparatus of Cadent otherwise than by agreement (such agreement not to be unreasonably withheld or delayed).
(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 and variations 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) The undertaker and Cadent 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 Cadent or other enactments relied upon by Cadent 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 Cadent under paragraph 98 (retained apparatus: protection of Cadent) or any other paragraph of this Part of this Schedule, must not be taken to constitute agreement under sub-paragraph (1).
(5) As a condition of an agreement between the parties in sub-paragraph (1) that involves decommissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and any other interest of Cadent in such decommissioned apparatus and consequently acquire title to such decommissioned apparatus and release Cadent from all liabilities in respect of such de-commissioned apparatus from the date of such surrender.
(6) Where an undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 96 (removal of apparatus) do not apply, the undertaker must—
(a)retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and
(b)(where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.
96.—(1) If, in the exercise of the agreement reached in accordance with paragraph 95 (acquisition of land) 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 decommissioned or 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, is in operation, and the rights and facilities referred to in sub-paragraph (2) have been provided, to the satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive.
(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 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 Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account sub-paragraph 97(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—
(a)for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus);
(b)subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus); and
(c)to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus).
(3) If 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 may, 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 assist the undertaker in obtaining 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 Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) 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 such facilities and rights as are referred to in sub-paragraphs (2) or (3) have been afforded to Cadent to its satisfaction, then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.
97.—(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 access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or 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 decommissioned or removed unless otherwise agreed by Cadent.
(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under paragraph 96(2) 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 Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed (in Cadent’s reasonable opinion) then the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 105 (arbitration) of this Part of this Schedule and the arbitrator must 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.
98.—(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 Cadent 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-paragraphs (1) and (2) apply 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.
(5) In relation to any work to which sub-paragraphs (1) or (2) apply, Cadent may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing 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-paragraphs (1) and (2) 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 all conditions imposed under sub-paragraph (4)(a), 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 reasonable satisfaction prior to the commencement of any specified works (or any relevant part of them) for which protective works are required prior to commencement.
(8) If Cadent, 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 96 (removal of apparatus), 97 (facilities and rights for alternative apparatus), 99 (expenses), 100 (indemnity) and 102 (co-operation) apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 96(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 28 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) 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 must comply with—
(a)the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and
(b)sub-paragraph (11) at all times.
(11) At all times when carrying out any works authorised under the Order the undertaker must comply with Cadent′s policies for safe working in proximity to gas apparatus ″CD/SP/SSW/22 (Cadent′s policies for safe working in the vicinity of Cadent′s Assets″ 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 accordance with paragraph 99. (expenses).
99.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand all charges, costs and expenses reasonably 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 by Cadent in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—
(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph 96(3) (removal of apparatus) if it elects to do so; 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; and
(g)any watching brief pursuant to paragraph 98(6) (retained apparatus).
(2) Nothing in sub-paragraph (1) requires the undertaker to repay any charge, cost or expense for which Cadent is liable to a third party or the undertaker as a consequence of any default, negligence or omission by Cadent, its officers, employees, servants, contractors or agents except insofar as such default or omission is caused by a breach of this Part of this Schedule by the undertaker or is in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker.
(3) 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.
(4) 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 61 (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 will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) 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.
(5) For the purposes of sub-paragraph (4)—
(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.
(6) 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.
100.—(1) Subject to sub-paragraphs (2) to (4) if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) 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 including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless Cadent 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 Cadent, its officers, servants, contractors or agents;
(b)any authorised works or any other works authorised by this Part of this Schedule carried out by Cadent with the benefit of this Order pursuant to section 156 of the Planning Act 2008 or article 52 (benefit of Order) 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 100; and
(c)any indirect or consequential loss of any third party (including but not limited to loss of use revenue profit contract production increased cost of working or business interruption arising from any such damage or interruption, which is not reasonably foreseeable at the commencement of the relevant works referred to in sub-paragraph (1)).
(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 promoter and considering their representations.
101. 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 the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made; except that in the event of an inconsistency between a term of this Part of this Schedule and a term of—
(a)the deed of easement between (1) Mr G.M.V. Winn and others (2) and The British Gas Corporation dated 25 April 1975; and
(b)the deed of easement between (1) Mr G.M.V. Winn and others (2) and The British Gas Corporation dated 6 May 1980,
the term of this Part of this Schedule applies.
102. Where in consequence of the proposed construction of any of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 96(2) (removal of apparatus) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 98 (retained apparatus), 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.
103. For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by Cadent or the taking of action by Cadent, it must not be unreasonably withheld or delayed.
104. If in consequence of the agreement reached in accordance with paragraph 95(1) (acquisition of land) or the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and 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.
105. 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 61 (arbitration) and in settling any difference or dispute, the arbitrator must have regard to the reasonable requirements of Cadent for ensuring the safety and economic and efficient operation of Cadent’s apparatus and of the authorised development.
106. The plans submitted to Cadent by the undertaker pursuant to sub-paragraph 98(1) (retained apparatus) must be sent to Cadent Gas Limited Plant Protection by e-mail to plantprotection@cadentgas.com copied by e-mail to landservices@cadentgas.com and sent to the General Counsel Department at Cadent’s registered office or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker.
107. For the protection of any operator, referred to in this Part of this Schedule, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.
108. In this Part of this Schedule—
“the code rights” has the same meaning as in the Paragraph 3 of the electronic communications code;
“electronic communications apparatus” has the same meaning as in electronic communications code;
“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.
109. The exercise of the powers of article 33 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
110.—(1) Subject to paragraphs 111 and 112, if as the result of the authorised development or its construction, or of any subsidence resulting from any of the authorise development—
(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 the authorised development), 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 this Part of this Schedule 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 and if such consent, is withheld, the undertaker 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 61 (arbitration).
111. 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 (street works in England and Wales) of the 1991 Act; or
(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.
112. 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 in land belonging to the undertaker on the date on which this Order is made; except that in the event of an inconsistency between a term of this Part of this Schedule and a term of the wayleave between (1) The London and North Eastern Railway Company and (2) Her Majesty’s Postmaster General dated 24 May 1933, the term of this Part of this Schedule applies.
113. The provisions of this Part of this Schedule have effect for the protection of the Board unless otherwise agreed in writing between the undertaker and the Board.
114. In this part of this Schedule—
“construction” includes execution, placing, altering, replacing, relaying and removal; and “construct” and “constructed” must be construed accordingly;
“drainage work” means any ordinary watercourse and includes any land that provides or is expected to provide flood storage capacity for any ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse;
“ordinary watercourse” has the meaning given in section 72 (Interpretation) of the Land Drainage Act 1991(4);
“plans” includes sections, drawings, specifications and method statements;
“specified works” means—
the making of any opening into or connections with any watercourse or drain in connection with the authorised development; and/or
so much of any work or operation of the authorised development as is in, on, under, over or within 9 metres of a drainage work for which the Board has responsibility or is otherwise likely to—
affect any such drainage work;
affect the total volume or volumetric rate of flow of water in or flowing to or from any such drainage work;
affect the flow of water in any such drainage work; or
affect the conservation, distribution or use of water resources.
115.—(1) The undertaker must not make any opening into or connections with any watercourse or drain in connection with the authorised development or carry out any specified work except—
(a)in accordance with plans approved by the Board in accordance with this Part of this Schedule or determined under paragraph 122; and
(b)where the Board has been given the opportunity to supervise the making of the opening or connection,
and no discharge of water under article 18 (discharge of water) shall be made until details of the location and maximum rate of discharge have been submitted to and approved in writing by the Board (unless such location or maximum rate of discharge is in accordance with a drainage strategy approved under paragraph 12(1) of Schedule 2 (requirements)).
(2) Before beginning to construct any specified work, the undertaker must submit to the Board plans of the specified work, and any such further particulars available to it as the Board may within 28 days of the submission of the plans reasonably require.
(3) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Board or determined under paragraph 122.
(4) Any approval of the Board required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval (or the submission of further particulars if applicable) or, in the case of a refusal, if it is not accompanied by a statement of the grounds of refusal; and
(c)may be given subject to such reasonable requirements and conditions as the Board may consider appropriate.
(5) The Board must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (4)(b).
(6) Where under this Part of this Schedule the Board is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that the Board complies with its obligations to consult other appropriate agencies, to have regard to any guidance issued by any appropriate supervisory body and has regard to its obligations under statute.
116. Without limiting paragraph 115, the requirements which the Board may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a)to safeguard any drainage work against damage; or
(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of any specified work.
117.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Board under paragraph 116 , must be constructed—
(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part; and
(b)to the reasonable satisfaction of the Board, and an officer of the Board is entitled to give such notice as may be reasonably required in the circumstances to watch and inspect the construction of such works.
(2) The undertaker must give to the Board—
(a)not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and
(b)notice in writing of its completion not later than 7 days after the date on which it is brought into use.
(3) If the Board reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work to which the protective works relate.
(4) If any part of a specified work or any protective work required by the Board is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Board may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the Board in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Board reasonably requires.
(5) Subject to sub-paragraph (6), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Board may execute the works specified in the notice, and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker
(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Board must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally resolved by agreement or determined under paragraph 122.
118. If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or the drainage work is otherwise damaged, the impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Board and, if the undertaker fails to do so, the Board may make good the impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.
119. The undertaker must pay to the Board all costs, charges and expenses that the Board may reasonably incur, have to pay or may sustain:
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in inspecting the proposed site for and construction of any specified work or any protective works required by the Board under this Part of this Schedule; and
(c)in carrying out any surveys or tests by the Board that are reasonably required in connection with the construction of the specified work.
120.—(1) Without limiting the other provisions of this Part of this Schedule, the undertaker must compensate the Board in respect of all claims, demands, proceedings, costs, damages, expenses or loss that are made or taken against, reasonably recovered from or reasonably incurred by the Board by reason of—
(a)any damage to any drainage work arising out of construction of the specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work so as to impair its efficiency for the purposes of flood defence; and
(b)any flooding or increased flooding of any such land which is caused by, or results from, the construction of the specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work.
(2) The Board must give to the undertaker reasonable notice of any such claims, demands, proceedings, costs, damages, expenses or loss and no settlement or compromise may be made without the agreement of the undertaker, which agreement must not be unreasonably withheld or delayed.
(3) The Board must at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses and losses. For the avoidance of doubt, any costs, expenses, losses or liabilities reasonably incurred by the Board arising out of or relating to its taking of such reasonable steps will be recoverable from the undertaker on the terms of sub-paragraph (1) (and, where any such reasonable step is considered by the Board (acting reasonably) to have the potential to cause significant cost, liability, expense or loss recoverable from the undertaker on the terms of sub-paragraph (1), the Board may require prepayment by the undertaker of its reasonable estimate of such prior to taking the relevant step but this does not relieve the Board of its obligation under this sub-paragraph at all times to take reasonable steps to prevent and mitigate the claims, demands, proceedings, costs, damages, expenses and losses to which this paragraph refers).
(4) In no circumstances will the undertaker be liable to the Board under or in connection with this Part of this Schedule for loss of profit.
121. The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the Board, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part of this Schedule.
122. Any dispute between the undertaker and the Board under this Part of this Schedule, unless otherwise agreed, must be determined by arbitration under article 61 (arbitration).
123. The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and CLdN, for the protection of CLdN during the construction and operation of the authorised development.
124.—(1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (2), the latter prevail.
(2) In this Part of this Schedule—
“CLdN” means CLdN Ports Killingholme Limited, company number 00278815, whose principal office is at 130 Shaftesbury Avenue, 2nd Floor, London, W1D 5EU as statutory harbour authority for and operator of the Port and any successor in title or function to the Port;
“operation” means the commencement of the import or export of liquid bulk products through Work No.1 for commercial purposes (as opposed to commissioning or testing of Work No.1) as notified to CLdN by the undertaker in writing not later than 10 business days after this definition is satisfied;
“the Port” means any land (including land covered by water) at Killingholme for the time being owned or used by CLdN for the purposes of its statutory undertaking, together with any quays, jetties, docks, river walls or works held in connection with that undertaking; and
“specified work” means Work No. 1 or any activity or operation authorised by this Order related to the construction of Work No. 1 and any related vessel movements which may interfere with:
the Port or access (including over water) to and from the Port; or
the functions of CLdN as the statutory harbour authority for the Port.
125. The undertaker and CLdN must each act in good faith and use reasonable endeavours to co-operate with and provide assistance to each other as may be required to give effect to the provisions of this Part of this Schedule.
126. The undertaker must inform CLdN in writing of the intended start date and the likely duration of the carrying out of the specified work at least 20 business days prior to the commencement of the specified work.
127. Any operations for the construction of the specified work must be carried out by the undertaker so that CLdN does not suffer undue interference with its own operations to and from the Port and, in so doing the undertaker—
(a)must have reasonable regard, amongst other things, to scheduled vessel services to and from the Port notified to the undertaker; and
(b)is not required to carry out any such operations otherwise than in a safe, efficient and economic manner.
128.—(1) During the construction of the specified work, the undertaker must indemnify CLdN against all financial losses, costs, charges, damages, expenses, claims and demands which may reasonably be incurred or occasioned to CLdN by reason or arising in connection with—
(a)any obstruction which prevents, restricts or materially hinders access into or out of the Port, which is caused by or attributable to the undertaker or its agents or contractors in exercising the powers of this Order in respect of the specified work, save for where such an obstruction is as a result of the lawful actions of the Statutory Conservancy and Navigation Authority; or
(b)the undertaking by CLdN of works or measures to prevent or remedy a danger or impediment to navigation or access to or from the Port arising from the exercise by the undertaker of its powers under this Order in respect of the specified work.
(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 CLdN, its officers, servants, contractors or agents.
(3) Without limiting the generality of sub-paragraph (1), the undertaker must indemnify CLdN from and against all financial losses, costs, charges, damages, expenses, claims and demands to which that sub-paragraph refers until the commencement of the operation of the specified work and the undertaker must use its reasonable endeavours to give at least 20 business days’ notice of the date on which operation of the specified work is anticipated to commence.
129. Save to the extent expressly provided for, nothing in this Order affects prejudicially any statutory or other rights, powers or privileges vested in or enjoyed by CLdN at the date of this Order coming into force.
130. With the exception of any duty owed by CLdN to the undertaker which is expressly provided for in this Part of this Schedule, nothing in this Order is to be construed as imposing upon CLdN either directly or indirectly, any duty or liability to which CLdN would not otherwise be subject and which is enforceable by proceedings before any court.
131. Unless otherwise agreed in writing, any dispute arising between the Undertaker and CLdN under this Part of this Schedule is to be determined by arbitration as provided in article 61 (arbitration) of this Order.
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