The North Falls Offshore Wind Farm Order 2026

SCHEDULE 14 PROTECTIVE PROVISIONS

Article 46 PART 1 PROTECTION FOR ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS 1 The provisions of this Part have effect for the protection of utility undertakers referred to in this part of this Schedule (save for any utility undertakers which are specifically protected by any other Part of this Schedule, which will take precedence), unless otherwise agreed in writing between the undertaker and the utility undertaker in question. 2 In this Part— “alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously; “apparatus” means— in the case of a utility undertaker within paragraph (a) of the definition of that term, electric lines or electrical plant (as defined in the 1989 Act, belonging to or maintained by that licence holder; in the case of a utility undertaker within paragraph (b) of the definition of that term, any mains, pipes or other apparatus belonging to or maintained by that gas transporter within the meaning of Part 1 of the Gas Act 1986 for the purposes of gas supply; in the case of a utility undertaker within paragraph (c) of the definition of that term, mains, pipes or other apparatus belonging to or maintained by that water undertaker for the purposes of water supply; and in the case of a utility undertaker within paragraph (d) of the definition of that term— any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at a future date) of the Water Industry Act 1991; any drain or works vested in the sewerage undertaker under the Water Industry Act 1991; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewerage disposal works, at future date) of that Act, and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) 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; “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; and “utility undertaker” means— any licence holder within the meaning of Part 1 of the 1989 Act; a gas transporter within the meaning of Part 1 of the Gas Act 1986; a water undertaker within the meaning of the Water Industry Act 1991; and a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991, for the area of the onshore works, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained. On street apparatus and offshore works 3 This Part does not apply to— (a) apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; and (b) the offshore works. Acquisition of land 4 Regardless of any provision of this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement. Removal of apparatus 5 (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 the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question. (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 the utility undertaker in question 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 a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker 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, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable 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 must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (arbitration). (5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 41 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part. (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker. (7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus. Facilities and rights for alternative apparatus 6 (1) Where, in accordance with the provisions of this Part, the undertaker affords to a utility undertaker 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 must be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 41 (arbitration). (2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along the authorised development, the arbitrator must— (a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; and (b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the authorised development for which the alternative apparatus is to be substituted. (3) 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 the utility undertaker in question 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 that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. Retained apparatus 7 (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 the removal of which has not been required by the undertaker under paragraph 5(2), the undertaker must submit to the utility undertaker in question 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 the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works. (3) Any requirements made by a utility undertaker 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 a utility undertaker, 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, the provisions of this Part apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(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, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description. (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 the utility undertaker in question 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 (2) in so far as is reasonably practicable in the circumstances. Expenses and costs 8 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses agreed with the undertaker in advance and reasonably incurred by that utility undertaker 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 5(2). (2) The value of any apparatus removed under the provisions of this Part must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal. (3) If in accordance with the provisions of this Part— (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 41 (arbitration) to be necessary then, if such placing involves cost in the construction of works under this Part 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 the utility undertaker in question 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 must 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 must be treated as if it also had been agreed or had been so determined. (5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) must, 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 the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit. 9 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(2) 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 a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must— (a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and (b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker, by reason or in consequence of any such damage or interruption. (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 a utility undertaker, its officers, servants, contractors or agents. (3) A utility undertaker 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 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. Miscellaneous 10 Nothing in this Part affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made. PART 2 FOR THE PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS 11 The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the operator in question. 12 In this Part— “electronic communications apparatus” has the same meaning as in the electronic communications code; “the electronic communications code” has the same meaning as in section 106 (application of the electronic communications code) of the 2003 Act; “electronic communications code network” means— so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and an electronic communications network which the Secretary of State is providing or proposing to provide; “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 (infrastructure system) of that code; and “operator” means the operator of an electronic communications code network. 13 The exercise of the powers conferred by article 32 (statutory undertakers) are subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code. 14 (1) Subject to sub-paragraphs (2) to (4), if as a result of the authorised development or its construction, or of any subsidence resulting from the authorised 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 agreed by the undertaker in advance and reasonably incurred by the operator in making good such damage or restoring the supply and must make reasonable compensation to that operator for any loss sustained by it, and must indemnify the operator against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, that operator by reason, or in consequence of, any such damage or interruption. (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 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 must be referred to and settled by arbitration under article 41 (arbitration). (5) This Part 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 project. (6) Nothing in this Part 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. PART 3 FOR THE PROTECTION OF THE ENVIRONMENT AGENCY 15 The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency. 16 In this Part of this Schedule— “the 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 (i) any main river and includes any land which provides flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring and (ii) any sea defence; “emergency” means an occurrence which presents a risk of— serious flooding which presents an immediate risk to health, life, property or environment; serious detrimental impact on drainage which presents an immediate risk to health, life, property or environment; or serious harm to the environment which presents an immediate risk of an incident which is likely to cause an impact to a species or habitats. “fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish; “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 2016 Regulations; “plans” includes plans, sections, elevations, drawings, specifications, programmes, calculations, method statements and descriptions; “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 (and any berm, counter wall 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; interfere with the Agency’s access to or along that sea defence or the Agency’s ability to undertake works to ensure the efficacy of that sea defence; or 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 likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any main river; cause obstruction to the free passage of fish or damage to any 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 so much of any work or operation authorised by this Order as is in, on under, over or within 16 metres of a sea defence which is likely to endanger the stability of, cause damage to or reduce the effectiveness of that sea defence, or interfere with the Agency’s access to or along that sea defence; work which involves 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 work which involves an activity 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; and “tidal main river” has the meaning given in paragraph 2(1) of Part 1 of Schedule 25 to the 2016 Regulations. Submission and approval of plans 17 (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 the receipt of the plans reasonably request. (2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 29. (3) Any approval of the Agency required under this paragraph— (a) must not be unreasonably withheld or delayed; (b) subject to sub-paragraph 17(4), is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or such later date as is agreed between the Agency and the undertaker, and if, further particulars have been requested by the Agency for approval pursuant to sub-paragraph (1) the period between the making of this request and the provision of further particulars in response to it shall not be taken into account in the calculation of the 2 months for the purposes of this sub-paragraph; 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 the prevention of environmental harm, or for nature conservation or in the discharge of its environmental duties. (4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b). (5) If the Agency refuses any approval required under this paragraph then the refusal must be accompanied by a statement of the grounds for refusal. Construction of protective works 18 Without limiting paragraph 17, but subject always to the provisions of that paragraph as to reasonableness 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; (b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased; or (c) by reason of any specified work. Timing of works and service of notices 19 (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 18, must be constructed— (a) without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and (b) to the reasonable satisfaction of the Agency, and (c) 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 commence construction of any specified work and notice in writing of its completion not later than seven days after the date on which it is 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. Works not in accordance with this Part of this Schedule 20 (1) If any part of a specified work or any protective work required by the Agency 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. (2) Subject to sub-paragraph (3), if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (1) 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 expenditure incurred by the Agency in so doing shall be recoverable from the undertaker. (3) In the event of any dispute as to whether sub-paragraph (1) 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 shall not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (2) until the dispute has been finally determined in accordance with paragraph 29. Maintenance of works 21 (1) Subject to sub-paragraph (7) 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 within the Order limits and on land held by the undertaker for the purposes of or in connection with the specified works, 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 Agency, the Agency 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 Agency 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 Agency reasonably requires. (3) Subject to sub-paragraph (5), 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 requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is reasonably necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing is recoverable from the undertaker. (4) 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 (5), the Agency may serve written notice requiring the undertaker to cease all or part of the specified works as may be specified within the notice within such reasonable period specified in the notice, and the undertaker must cease the specified works or part thereof until it has obtained the consent or complied with the condition unless the cessation of the specified works or part thereof would cause greater damage than compliance with the written notice. (5) The risks specified in sub-paragraph (4) are— (a) risk of flooding; (b) risk of harm to the environment; (c) risk of detrimental impact on drainage; and (d) damage to the fishery. (6) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), 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 29. (7) This paragraph does not apply to— (a) drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed 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. Remediating impaired drainage work 22 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 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 reasonably incurred by the Agency in so doing from the undertaker. Agency access 23 If by reason of the construction of any specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must notify the Agency as soon as reasonably practicable and provide such alternative means of access 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. Free passage of fish 24 (1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work. (2) If by reason of— (a) the construction of any specified work; or (b) the failure of any 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 the notice served under sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in so doing are recoverable from the undertaker. (4) In any case where immediate action by the Agency is reasonably required in an emergency 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 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 to take, the steps specified in the notice. Monitoring of Sea Defence 25 (1) Prior to commencing any work using any trenchless installation technique forming part of Work Nos. 3 or 4A within plots 01-001, 01-002, 01-004, 01-005 and 01-006, the undertaker must obtain the approval in writing of the Agency of a plan specifying the monitoring of the sea defence which is to be carried out by the undertaker. (2) The plan required under sub-paragraph (1) must set out how monitoring on the seawall of the sea defence during construction to measure any movement will be carried out including— (a) the outcomes of detailed ground investigation and baseline monitoring of any preexisting seawall movement work undertaken by the undertaker; (b) the methodology of the trenchless installation technique to be used under the seawall; (c) the risk assessment for the selected trenchless installation technique works under the seawall; (d) details and plans of the proposed works under the seawall including sections; (e) the equipment to be used to carry out monitoring of the seawall; (f) the location(s) for the installation of monitoring equipment; (g) the scope and timing of the monitoring to be carried out; and (h) a process for the reporting of the results of the monitoring to the Agency by the undertaker. (3) Any work to which sub-paragraph (1) applies may not be commenced unless and until the monitoring plan has been approved by the Agency. (4) Any approval of the Agency required under this paragraph— (a) must not be unreasonably withheld or delayed; (b) is deemed to have been approved if it is neither given nor refused within 2 months of the submission of the monitoring plan required by sub-paragraph (1); 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 or in the discharge of its environmental duties. (5) If the Agency refuses any approval required under this paragraph then the refusal must be accompanied by a statement of the grounds for refusal. Heavy vehicle movements during construction 26 (1) Access for the undertaker over plot 01-001 and 01-004 during the construction of the relevant authorised works must not be used by vehicles that exceed a maximum gross weight of 7.5 tonnes unless otherwise agreed in writing, including details of any additional protection measures, between the undertaker and the agency (acting reasonably). (2) The undertaker is not required to comply with sub-paragraph (1) in the case of an emergency. As built drawings 27 As soon as reasonably practicable following the completion of the construction of Works Nos. 4B or 4C within plots 01-001, 01-002, 01-004, 01-005 and 01-006, the undertaker must provide to the Agency as-built drawings in a form and scale to be agreed in writing between the undertaker and the Agency (acting reasonably) to show location and depths of the cable ducts as installed which must include identification markings on the sea defence. Indemnity 28 (1) The undertaker indemnifies the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur— (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. (2) The undertaker is responsible for and indemnifies the Agency against all costs and losses, liabilities, claims and demands, not otherwise provided for in this Part of this Schedule which may be reasonably incurred or suffered by the Agency by reason 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, in sub-paragraph (1)— (a) “costs” includes— (i) expenses and charges; (ii) staff costs and overheads; and (iii) legal costs; (b) “losses” includes physical damage. (4) For the avoidance of doubt, in sub-paragraph (3)— (a) “claims” and “demands” include as applicable— (i) costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand; and (ii) any interest element of sums claimed or demanded; (b) “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). (5) The Agency must give to the undertaker reasonable written notice of any such claim or demand as is referred to in sub-paragraph (1) as soon as reasonably practicable after it becomes aware of such claim or demand, and no settlement or compromise of any such claim or demand is to be made without the prior agreement of the undertaker and that agreement must not be unreasonably withheld or delayed. (6) The Agency must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss. (7) 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, must not relieve the undertaker from any liability under the provisions of this Part of this Schedule. (8) Nothing in this paragraph imposes any liability on the undertaker with respect to any costs, charges, expenses, damages, claims, demands or losses to the extent that they are attributable to the neglect or default of the Agency, its officers, servants, contractors or agents. Disputes 29 Any dispute arising between the undertaker and the Agency under this Part of this Schedule will, if the parties agree, be determined by arbitration under article 41 (arbitration), but failing agreement will be determined by the Secretary of State for the Environment, Food and Rural Affairs or its successor and the Secretary of State for Energy Security and Net Zero 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. PART 4 FOR THE PROTECTION OF DRAINAGE AUTHORITIES 30 The provisions of this Part of this Schedule have effect for the protection of the drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority. 31 In this Part of this Schedule— “construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” are to be construed accordingly; “drainage authority” means, in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991; “drainage work” means any ordinary watercourse and includes 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 within the jurisdiction of the drainage authority; “emergency” means a situation where, if the relevant action is not taken, there will be adverse health, safety, security or environmental consequences; “independent review” means a review carried out by a third party confirming the findings of the undertaker in the assessment of the impact of the proposed specified work on flood risk; “ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991; “plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 9 metres of a drainage work and which comprises any of the following works carried out in relation to or which may affect any ordinary watercourse— the erection of any mill, dam, weir, or other similar obstruction to the flow of an ordinary watercourse, or raising or otherwise altering any such obstruction; the construction or installation of a bridge or other structure; the erection of a culvert in an ordinary watercourse; and the alteration of an ordinary watercourse or a culvert or other form of drainage infrastructure in a manner that would be likely to affect the flow of an ordinary watercourse. 32 (1) Before commencing construction of a specified work, the undertaker must submit to the drainage authority plans of the specified work, including an independent review and such further particulars available to it as the drainage authority may within 21 days of the submission of the plans reasonably request. (2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph. (3) A specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under this paragraph. (4) Any approval of the drainage authority 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 56 days of the submission of the plans for approval, or submission of further particulars (where required by the drainage authority under sub-paragraph (1)) whichever is the later; and (c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, for the protection of any ordinary watercourse or for the prevention of flooding. (5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal. (6) “Reasonable” in this paragraph means appropriate in the circumstances and, for the avoidance of doubt any recommendation or requirement from the drainage authority relating to health and safety shall be considered reasonable. 33 Without limiting paragraph 32, the requirements which the drainage authority 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 by reason of any specified work; or (b) to secure that the efficiency of any drainage work for flood defence and land drainage purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of any specified work. 34 (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 33, must be constructed— (a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and (b) to the reasonable satisfaction of the drainage authority, and an officer of the drainage authority is entitled to watch and inspect the construction of such works. (2) The undertaker must give to the drainage authority— (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 of completion. (3) If the drainage authority 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 drainage authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority 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 drainage 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 agreed, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires. (5) Subject to sub-paragraph (6) and paragraphs 38 and 39, 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 drainage authority may execute the works specified in the notice and any reasonable expenditure 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 drainage authority must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 44. 35 (1) Subject to sub-paragraph (5), the undertaker must from the commencement of the construction of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation on land held by the undertaker for the purpose of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence. (2) If any drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of the work, or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the specified work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires. (3) Subject to sub-paragraph (4) and paragraphs 38 and 39, 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 drainage authority may do what is reasonably necessary for such compliance and may recover any reasonable 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 drainage authority must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 44. (5) This paragraph does not apply to— (a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; 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 provided that any obstruction is removed as soon as reasonably practicable. 36 Subject to paragraphs 38 and 39 and paragraph 35(5)(b), 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 or land drainage 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 drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker any expenditure incurred by the drainage authority in so doing from the undertaker. 37 If by reason of the construction of the specified work the drainage authority’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the drainage authority to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction. 38 The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur— (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 drainage authority under this Part of this Schedule; and (c) in the carrying out of any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified works. 39 (1) Without limiting the other provisions of this Part of this Schedule, the undertaker must make reasonable compensation to the drainage authority from costs and losses which may be reasonably incurred or suffered by the drainage authority by reason of— (a) any damage to any drainage work; (b) any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses; or (c) any flooding or increased flooding of any such lands, caused by the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the construction of the specified work. (2) The drainage authority must take such steps as are reasonable in the circumstances to mitigate in whole or in part and to minimise any costs, expenses, loss, claims, damages, demands, proceedings and penalties to which the indemnity under this paragraph applies where it is within the drainage authority’s reasonable gift and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of the drainage authority’s control. If reasonably requested to do so by the undertaker, the drainage authority must provide a written explanation of how any claim has been mitigated or minimised or where mitigation or minimisation is not possible an explanation as to why. 40 (1) The drainage authority must give to the undertaker reasonable notice of any such claim or demand. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. No settlement or compromise may be made to such claim or any admission made which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed. (2) The drainage authority must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action and is entitled to be repaid its reasonable expenses reasonably incurred in so doing. 41 The fact that any act or thing may have been done by the drainage authority on behalf of the undertaker or in accordance with a plan approved or deemed to have been approved by the drainage authority or in accordance with any requirement of the drainage authority or under its supervision does not, subject to paragraph 40(2), excuse the undertaker from liability under the provisions of paragraph 39(1) unless the drainage authority 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. 42 Nothing in paragraph 39(1) imposes any liability on the undertaker with respect to any damage or loss to the extent that it is attributable to the act, neglect or default of the drainage authority, its officers, servants, contractors or agents. 43 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 drainage authority, 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. 44 Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 41 (arbitration), but otherwise is to be determined by the Secretary of State for Energy Security and Net Zero on a reference to them by the undertaker or the drainage authority, after notice in writing by one to the other. PART 5 FOR THE PROTECTION OF RAILWAY INTERESTS 45 The 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 9, of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph. 46 In this Part of this Schedule— “asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by 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 Infrastructure Limited by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act l993; “Network Rail” means Network Rail Infrastructure Limited (company number 02904587, 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; “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 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; “regulatory consents” means any consent or approval required under— the Railways Act 1993; the network licence; and/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; and “specified work” means so much of any of the authorised development as is 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 4 (power to maintain the authorised development) and article 31 (temporary use of land for maintaining the authorised development) in respect of such works. 47 (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 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 their 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. 48 (1) The undertaker must not exercise powers conferred by— (a) article 3 (development consent etc. granted by the Order); (b) article 4 (power to maintain the authorised development); (c) article 17 (discharge of water); (d) article 19 (authority to survey and investigate the land onshore); (e) article 20 (compulsory acquisition of land); (f) article 21(compulsory acquisition of land: minerals); (g) article 23 (compulsory acquisition of rights etc.); (h) article 26 (statutory authority to override easements and other rights); (i) article 27 (acquisition of subsoil only); (j) article 29 (rights under or over streets); (k) article 30 (temporary use of land for carrying out the authorised development); (l) article 31 (temporary use of land for maintaining the authorised development); (m) article 32 (statutory undertakers); (n) article 38 (felling or lopping of trees and removal of hedgerows); (o) article 39 (trees subject to tree preservation orders); (p) the powers conferred by section 11(3) (power of entry) of the 1965 Act); (q) the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016; (r) the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016; and (s) any powers in respect of the temporary possession of land under the Neighbourhood Planning Act 2017, in respect of any railway property unless the exercise of such powers is with the consent of Network Rail. (2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail. (3) The undertaker must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, article 24 (private rights), article 26 (statutory authority to override easements) or article 32 (statutory undertakers) in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail. (4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail. (5) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway. (6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion). (7) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work. 49 (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. (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 intimated their disapproval of those plans and the grounds of such disapproval, the undertaker may serve upon the engineer written notice requiring the engineer to intimate 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 intimated approval or disapproval, the engineer shall be 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 their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s 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 de-commissioning 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 until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction. 50 (1) Any specified work and any protective works to be constructed by virtue of paragraph 49(4) must, when commenced, be constructed— (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 9; (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 thereon and the use by passengers of railway property. (2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of the construction of, or in consequence of a specified work, the undertaker must, notwithstanding 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 servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or itsservants, contractors or agents. 51 The undertaker must— (a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and (b) supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it. 52 Network Rail must at all times afford reasonable facilities to the undertaker and its 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. 53 (1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and 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 and 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 by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer 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 is to be constructed Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph49(3), 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. (3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 54(a) provide such details of the formula 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. 54 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 49(3) or in constructing any protective works under the provisions of paragraph 49(4) 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; (c) in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons and other persons whom it shall be 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; (d) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution of 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. 55 (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 49(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 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 paragraph49(1)) in order to identify all potential causes of EMI and the measures required to eliminate them; (b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably 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 selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 49(1) has effect subject to the sub-paragraph. (6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall 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 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 reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and (d) the undertaker shall 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 50. (9) To the extent that it would not otherwise do so, the indemnity in paragraph 59(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 sub-paragraph 54(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph. (11) In relation to any dispute arising under this paragraph the reference in article 41 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology. 56 If at any time after the completion of a specified 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 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 in such state of maintenance as not adversely to affect railway property. 57 The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified 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. 58 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 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. 59 (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 (subject to article 48 (no double recovery)) which may be occasioned to or reasonably incurred by Network Rail— (a) by reason of the construction, maintenance or operation of a specified work or the failure thereof; (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; (c) by reason of any act or omission of the undertaker or any person in its employ 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 must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission. (2) 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 shall 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 paragraph (1). (3) Network Rail must— (a) give the undertaker reasonable written notice of any such claims or demands; (b) not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and (c) take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands. (4) The sums payable by the undertaker under sub-paragraph (1) shall, if relevant, include a sum equivalent to the relevant costs. (5) 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. (6) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4). (7) In this paragraph— “the relevant costs” means the costs, 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. 60 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 under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph59) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs). 61 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. 62 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. 63 Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993. 64 The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 5 (benefit of the Order) of this Order 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. 65 The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 40 (certification of plans and documents, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail. 66 In relation to any dispute arising under this Part of this Schedule (except for those disputes referred to in paragraph55(11) any such dispute, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers. PART 6 FOR THE PROTECTION OF NATIONAL HIGHWAYS Application etc., 67 The provisions of this Part of this Schedule apply for the protection of National Highways and have effect unless otherwise agreed in writing between the undertaker and National Highways. Interpretation 68 (1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with sub-paragraph (3) the latter prevail. (2) Where any provision of this Part of this Schedule requires National Highways to act reasonably, then for the avoidance of doubt, any recommendation, request for information or condition for approval that relates to health and safety of the highway network within National Highways’ jurisdiction will be considered reasonable. (3) In this Part of this Schedule— “as built information” means one electronic copy of the following information (in so far as it is relevant to the works concerned)— as constructed drawings in both PDF and AutoCAD DWG formats for any SRN work designed by the undertaker; in compliance with Interim Advice Note 184 or any successor document, and for the cable works, showing the location and depth of the cable as installed and any ancillary or protective measures installed within the strategic road network; list of suppliers and materials used, as well as any relevant test results and CCTV surveys (if required to comply with DMRB standards); product data sheets and technical specifications for all materials used; as constructed information for any utilities discovered or moved during the works; method statements for the works carried out; in relation to road lighting, signs, and traffic signals any information required by Series 1300 and 1400 of the Specification for Highway Works or any replacement or modification of it; organisation and methods manuals for all products used; as constructed programme; test results and records as required by the detailed design information and during construction phase of the project; a stage 3 road safety audit subject to any exceptions to the road safety audit standard as agreed by the undertaker and National Highways; the health and safety file; and such other information as is reasonably required by National Highways to be used to update all relevant databases and to ensure compliance with National Highway’s Asset Data Management Manual as is in operation at the relevant time. “the bond sum” means the sum equal to 200% of the cost of carrying out the SRN works (to include all costs) plus 100% of the commuted sum or such other sum as is agreed; “cable works” means any works under this Order which consist of the installation of cables, cable ducts, tunnels for cables and cable ducts and related or associated works to those operations, all under the strategic road network and to be installed through the use of trenchless installation techniques where no works are required to or on the operational carriageway; “cash surety” means the sum equal to 200% of the cost of carrying out the SRN works (to include all costs) or such other sum as is agreed; “the commuted sum” means the sum agreed as being the necessary contribution by the undertaker to the increase in costs incurred by National Highways of maintaining new strategic highway assets constructed as SRN works under this Order for ten years from the issue of the final certificate; “condition survey” means a survey of the condition of National Highways structures and assets within the Order limits that may be affected by the SRN works and cable works; “contractor” means any contractor or subcontractor appointed by the undertaker to carry out the works; “defects period” means the period from the date of the provisional certificate to the date of the final certificate which may be no less than 12 months from the date of the provisional certificate; “detailed design information” means such of the following drawings specifications and calculations as are relevant— for the SRN works— site clearance details; boundary, environmental and mitigation fencing; road restraints systems and supporting road restraint risk appraisal process assessment; drainage and ducting as required by DMRB CD 535 Drainage asset data and risk management and DMRB CS551 Drainage surveys – standards for Highways; earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification; pavement, pavement foundations, kerbs, footways and paved areas; traffic signs and road markings; traffic signal equipment and associated signal phasing and timing detail; road lighting (including columns and brackets); regime of California Bearing Ratio testing; electrical work for road lighting, traffic signs and signals; motorway communications as required by DMRB; highway structures and any required structural approval in principle; landscaping; proposed departures from DMRB standards; walking, cycling and horse riding assessment and review report; stage 1 and stage 2 road safety audits and exceptions agreed; utilities diversions; topographical survey; maintenance and repair strategy in accordance with DMRB GD304 Designing health and safety into maintenance or any replacement or modification of it; or for the cable works— earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification; health and safety information including any asbestos survey required by GG105 or any successor document; and other such information that may be required by National Highways to be used to inform the detailed design of the cable works; “DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it; “final certificate” means the certificate relating to those aspects of the SRN works that have resulted in any alteration to the strategic road network to be issued by National Highways pursuant to paragraph 80; “the health and safety file” means the file or other permanent record containing the relevant health and safety information for the authorised development required by the Construction Design and Management Regulations 2015 (or such updated or revised regulations as may come into force from time to time); “highway operations and maintenance contractor” means the contractor appointed by National Highways under the DBFO contract; “nominated persons” means the undertaker’s representatives or the contractor’s representatives on site during the carrying out of the cable works or SRN works as notified to National Highways from time to time; “programme of works” means a document setting out the sequence and timetabling of the cable works or SRN works; “provisional certificate” means the certificate of provisional completion relating to those aspects of either the cable works or the SRN works that have resulted in any alteration to the strategic road network to be issued by National Highways in accordance with paragraph 75 or 76 as appropriate when it considers the SRN works or cable works are substantially complete; “road safety audit” means an audit carried out in accordance with the road safety audit standard; “road safety audit standard” means DMRB Standard HD GG119 or any replacement or modification of it; “road space booking” means road space bookings in accordance with National Highways’ Asset Management Operational Requirements (AMOR) including Network Occupancy Management System (NOMS) used to manage road space bookings and network occupancy; “SRN works” means so much of any work authorised by this Order which involve works to the carriageway or verge of any part of the strategic road network, or to operational assets ancillary thereto including highway drainage, and specifically including the alteration of a junction as authorised as part of Work No. 9, and including any maintenance of that work, as is on, in, or over the strategic road network for which National Highways is the highway authority; “Specification for Highways Works” means the specification for highways works forming part of the manual of contract documents for highway works published by National Highways and setting out the requirements and approvals procedures for work, goods or materials used in the construction, improvement or maintenance of the strategic road network; “strategic road network” means any part of the road network including trunk roads, special roads or streets for which National Highways is the highway authority including drainage infrastructure, street furniture, verges and vegetation and all other land, apparatus and rights located in, on, over or under the highway; “utilities” means any pipes wires cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act; and “winter maintenance” means maintenance of the road surface to deal with snow and ice. (4) References to any standards, manuals, contracts, Regulations and Directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances. General 69 No works in carrying out, maintaining or diverting the cable works may be carried out under the strategic road network at a distance within 4 metres of the lowest point of the ground. 70 In respect of a road that is managed under a DBFO contract both National Highways and the highway operations and maintenance contractor shall have the benefit of this Part of this Schedule but for the purposes of any approvals required under this Part of this Schedule the undertaker shall liaise directly with National Highways. Works outside the Order limits 71 If the undertaker proposes to carry out works to the strategic road network that are outside of the Order Limits in connection with the authorised development, the undertaker must enter into an agreement with National Highways in respect of the carrying out of those works prior to the commencement of those works. Prior approvals 72 (1) The SRN works must not commence until— (a) a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised by them or any exceptions are approved by National Highways (acting reasonably); (b) the programme of works has been approved by National Highways (acting reasonably); (c) the detailed design of the SRN works comprising of the following details, insofar as considered relevant by National Highways, has been submitted to and approved by National Highways (acting reasonably)— (i) the detailed design information, incorporating all recommendations and any exceptions approved by National Highways under paragraph (a); (ii) details of the proposed road space bookings; (iii) the identity and suitability of the contractor and nominated persons; (iv) a process for stakeholder liaison, with key stakeholders to be identified and agreed between National Highways and the undertaker; and (v) information demonstrating that the process undertaken by the undertaker in relation to the SRN works has been adhered to in accordance with DMRB GG142 – Designing for walking, cycling and horse riding; (d) a scheme of traffic management has been submitted by the undertaker and approved by National Highways, such scheme to be capable of amendment by agreement between the undertaker and National Highways from time to time; (e) stakeholder liaison has taken place in accordance with the process for such liaison agreed between the undertaker and National Highways under sub-paragraph (c)(iv) above; (f) National Highways has approved the audit brief and CVs for all road safety audits and exceptions to items raised in accordance with the road safety audit standard; (g) the undertaker has agreed the estimate of the commuted sum with National Highways; (h) the scope of all maintenance operations (routine inspections, incident management, reactive and third party damage) to be carried out by the undertaker during the construction of the SRN works (which may include winter maintenance if relevant) has been agreed in writing by National Highways; (i) the undertaker has procured to National Highways collateral warranties in a form approved by National Highways (acting reasonably) from the contractor and designer of the SRN works in favour of National Highways to include covenants requiring the contractor and designer to exercise all reasonable skill, care and diligence in designing and constructing the SRN works, including in the selection of materials, goods, equipment and plant; and (j) a condition survey and regime of monitoring of any National Highways assets or structures that National Highways reasonably considers will be affected by the SRN works, has been agreed in writing by National Highways. (2) The cable works must not commence until— (a) the detailed design of the cable works including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification, has been submitted to and approved by National Highways; and (b) a condition survey and regime of monitoring of any National Highways assets or structures that National Highways reasonably considers will be affected by the SRN works, has been agreed in writing by National Highways. (3) National Highways must prior to the commencement of the cable works and SRN works inform the undertaker of the identity of the person who will act as a point of contact on behalf of National Highways for consideration of the information required under sub-paragraph (1). (4) Any approval of National Highways required under this paragraph— (a) must not be unreasonably withheld; (b) must be given in writing; (c) will be deemed to have been refused if neither given nor refused within 2 months of the receipt of the information for approval or where further particulars are requested by National Highways, within 2 months of receipt of the information to which the request for further particulars relates; and (d) may be subject to any conditions as National Highways acting reasonably considers necessary. (5) Any change to the identity of the contractor and/or designer of the SRN works will be notified to National Highways immediately and details of their suitability to deliver the SRN works will be provided on request along with collateral warranties in a form agreed by National Highways. (6) Any change to the detailed design of the SRN works must be approved by National Highways in accordance with paragraph (1) of this Part of this Schedule. Construction of the cable works and SRN works 73 (1) The undertaker must give National Highways 14 days’ notice in writing of the date on which the cable works and/or the SRN works will start unless otherwise agreed by National Highways. (2) The undertaker must comply with National Highways’ road space booking procedures prior to and during the carrying out of the SRN works and no SRN works for which a road space booking is required may commence without a road space booking having first been secured from National Highways. (3) The cable works and SRN works must be carried out by the undertaker to the reasonable satisfaction of National Highways in accordance with— (a) the relevant detailed design information and programme of works approved pursuant to paragraph 72(1) or 72(2) above or as subsequently varied by agreement between the undertaker and National Highways; (b) the DMRB, the Manual of Contract Documents for Highway Works, including the Specification for Highway Works, together with all other relevant standards as required by National Highways to include, inter alia; all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016 save to the extent that exceptions from those standards apply which have been approved by National Highways; and (c) all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same. (4) The undertaker must permit and must require the contractor to permit at all reasonable times persons authorised by National Highways (whose identity must have been previously notified to the undertaker by National Highways) to gain access to the cable works and SRN works for the purposes of inspection and supervision of those works. (5) If any part of the cable works or SRN works is constructed— (a) other than in accordance with the requirements of this Part of this Schedule; or (b) in a way that causes damage to the highway, highway structure or asset or any other land of National Highways, (c) National Highways may by notice in writing require the undertaker, at the undertaker’s own expense, to comply promptly with the requirements of this Part of this Schedule or remedy any damage notified to the undertaker under this Part of this Schedule, to the reasonable satisfaction of National Highways. (6) If during the carrying out of the authorised development the undertaker or its appointed contractors or agents causes damage to the strategic road network then National Highways may by notice in writing require the undertaker, at its own expense, to remedy the damage. (7) In constructing the cable works and SRN works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway over existing utilities must be constructed to the reasonable satisfaction of National Highways. (8) The undertaker must notify National Highways if it fails to complete the SRN works in accordance with the agreed programme pursuant to paragraph 72(1)(b) of this Part of this Schedule or suspends the carrying out of any SRN work beyond 14 days and National Highways reserves the right to withdraw any road space booking granted to the undertaker to ensure compliance with its network occupancy requirements. Payments 74 (1) The undertaker must pay to National Highways a sum equal to the whole of any reasonable costs and expenses which National Highways reasonably incurs (including costs and expenses for using internal or external staff) in relation to the cable works and SRN works and in relation to any approvals sought under this Order, or otherwise incurred under this Part of this Schedule, including— (a) the checking and approval of the information required under paragraphs 72(1) and 72(2); (b) the supervision of the cable works and SRN works; (c) the checking and approval of the information required to determine approvals under this Order; (d) costs in relation to the transfer of any land required for the SRN works and cable works; (e) all legal and administrative costs and disbursements reasonably incurred by National Highways in connection with paragraphs (a) to (d) of this sub-paragraph; and (f) any value added tax which is payable by National Highways only in respect of such costs and expenses arising under this paragraph and for which it cannot obtain reinstatement from HM Revenue and Customs, together comprising “the NH costs”. (2) National Highways must provide the undertaker with a schedule showing its estimate of the NH costs prior to the commencement of the cable works and SRN works. Where the undertaker accepts that the estimate of costs is reasonable, the undertaker must pay to National Highways the estimate of the NH costs prior to commencing the SRN works or cable works. Where the undertaker does not accept that the estimate of costs is reasonable, escalation under sub-paragraph (6) will apply. (3) If at any time after the payment referred to in this sub-paragraph has become payable, National Highways reasonably believes that the NH costs will exceed the estimated NH costs it may give notice to the undertaker of the amount that it believes the NH costs will exceed the estimate of the NH costs (the excess). Where the undertaker accepts that the estimate of the excess is reasonable, the undertaker must pay to National Highways the estimate of the excess within 30 days of the date of receipt of a properly issued VAT invoice from National Highways addressed to the undertaker for the excess. Where the undertaker does not accept that the estimate of the excess is reasonable, escalation under sub-paragraph (6) will apply. (4) National Highways must give the undertaker a final account of the NH costs referred to in sub-paragraph (1) above within 30 days of the issue of the provisional certificate issued pursuant to paragraphs 75(4) or 76(3). (5) Within 30 days of the issue of the final account— (a) if the final account shows a further sum as due to National Highways the undertaker must pay to National Highways the sum shown due to it; and (b) if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by National Highways, National Highways must refund the difference to the undertaker. (6) Where the undertaker does not agree that an estimate provided by National Highways under this paragraph is reasonable, the undertaker must notify National Highways of that within 15 days of receiving the estimate. The undertaker and National Highways will escalate the estimate internally and will each nominate a senior officer to attend a discussion on the estimate. Where the parties fail to reach agreement following such discussion, any difference or dispute over reasonableness of any excess sum shall be determined by expert determination in accordance with paragraph 87. Provisional Certificate for SRN works 75 (1) Following any closure or partial closure of any of the strategic road network for the purposes of carrying out the SRN works, National Highways will carry out a site inspection to satisfy itself that the strategic road network is, in its opinion, safe for traffic and the undertaker must comply with any requirements of National Highways prior to reopening the strategic road network. (2) As soon as the undertaker considers that the provisional certificate may be properly issued it must apply to National Highways for the provisional certificate. (3) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable— (a) inspect the SRN works; and (b) provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose. (4) When— (a) a stage 3 road safety audit for the SRN works has been carried out and all recommendations raised including remedial works have (subject to any exceptions agreed) been approved by National Highways; (b) the SRN works incorporating the approved remedial works under sub-paragraph (a) and any further works notified to the undertaker pursuant to sub-paragraph (3)(b) have been completed to the reasonable satisfaction of National Highways; (c) the as built information has been provided to National Highways; and (d) the undertaker has paid the commuted sum to National Highways, National Highways must issue the provisional certificate. (5) On the issue of the provisional certificate the bond sum shall be reduced to 20% of the total bond sum save insofar as any claim or claims have been made against the bond before that date in which case National Highways will retain a sufficient sum to ensure it does not have to meet any costs for or arising from the SRN works. (6) The undertaker must submit a stage 4 road safety audit as required by and in line with the timescales stipulated in the road safety audit standard. The undertaker must comply with the findings of the stage 4 road safety audit and must pay all costs of and incidental to such and provide updated as-built information to National Highways. (7) In this paragraph, ‘reasonable satisfaction’ means fair, proper and moderate under the circumstances, having regard to the details approved under paragraph 72. Provisional Certificate for cable works 76 (1) As soon as the undertaker considers that the provisional certificate for the cable works may be properly issued it must apply to National Highways for the provisional certificate. (2) Following an application for a provisional certificate, National Highways must as soon as reasonably practicable— (a) inspect the area of the highway within the strategic road network over the route of the cable works; and (b) provide the undertaker with a written list of works that are required for the provisional certificate to be issued or confirmation that no further works are required for this purpose. (3) When the cable works incorporating any further works notified to the undertaker pursuant to sub-paragraph (2)(b) have been completed to the reasonable satisfaction of National Highways, National Highways must issue the provisional certificate. Opening 77 The undertaker must notify National Highways not less than 14 days in advance of the intended date of opening to the public of the strategic road network and the undertaker must notify National Highways of the actual date the strategic road network will be opened to the public within 14 days of that date. Final condition survey 78 (1) The undertaker must, as soon as reasonably practicable after making its application for a provisional certificate pursuant to paragraph 75(2) or 76(1), arrange for any highways structures and assets that were the subject of the condition survey to be re-surveyed and must submit the re-survey to National Highways for its approval. The re-survey will include a renewed geotechnical assessment required by DMRB CD622 for the SRN works, cable works and any other works beneath the strategic road network. (2) If the re-surveys carried out pursuant to sub-paragraph (1) indicates that any damage has been caused to a structure or asset, the undertaker must submit a scheme for remedial works in writing to National Highways for its approval in writing (acting reasonably) and the undertaker must carry out the remedial works at its own cost and in accordance with the scheme submitted. (3) If the undertaker fails to carry out the remedial work in accordance with the approved scheme, National Highways may carry out the steps required of the undertaker and may recover any expenditure it reasonably incurs in so doing. (4) National Highways may, at its discretion, at the same time as giving its approval to the re-surveys pursuant to sub-paragraph (1), give notice in writing that National Highways will remedy any damage identified in the re-surveys and National Highways may recover any expenditure it reasonably incurs in so doing. (5) The undertaker must make available to National Highways upon request copies of any survey or inspection reports produced pursuant to any inspection or survey of any cable work or SRN work following its completion that the undertaker may from time to time carry out. Defects Period 79 (1) The undertaker must at its own expense remedy any defects in the strategic road network resulting from the carrying out of the SRN works as are reasonably required by National Highways to be remedied during the defects period. All identified defects must be remedied in accordance with the following timescales— (a) in respect of matters of urgency, within 24 hours of receiving notification for the same (urgency to be determined at the absolute discretion of National Highways); (b) in respect of matters which National Highways considers to be serious defects or faults, within 14 days of receiving notification of the same; and (c) in respect of all other defects notified to the undertaker, within 4 weeks of receiving notification of the same. (2) Following the expiry of the defects period National Highways has responsibility for routine maintenance of the strategic road network save for any soft landscaping works which must be established and which must thereafter be maintained for a period of 3 years by, and at the expense of, the undertaker. Final Certificate 80 (1) The undertaker must apply to National Highways for the final certificate no sooner than 12 months from the date of the provisional certificate for the SRN works pursuant to paragraph 75(2) and provisional certificate for cable works pursuant to paragraph 76(1). (2) Following receipt of the application for the final certificate, National Highways must as soon as reasonably practicable— (a) inspect the strategic road network; and (b) provide the undertaker with a written list of any further works required to remedy or make good any defect or damage in the strategic road network or confirmation that no such works are required for this purpose. (3) The undertaker must carry out such works notified to it pursuant to sub-paragraph (2). (4) When National Highways is satisfied that— (a) any defects or damage arising from defects during the defects period and any defects notified to the undertaker pursuant to sub-paragraph (2) and any remedial works required as a result of any relevant stage 4 road safety audit have been made good to the reasonable satisfaction of National Highways; and (b) the NH costs have been paid to National Highways in full; National Highways must issue the final certificate after which the bond shall be released in full. (5) The undertaker must pay to National Highways within 30 days of the date of receipt of a properly issued VAT invoice from National Highways addressed to the undertaker, the costs reasonably incurred by National Highways in identifying the defects and supervising and inspecting the undertaker’s work to remedy the defects that it is required to remedy pursuant to these provisions. Security 81 The SRN works may not commence until— (a) the undertaker procures that the SRN works are secured by a bond from a bondsman first approved by National Highways in the agreed form between the undertaker and National Highways to indemnify National Highways against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of the SRN works provided that the maximum liability of the bond must not exceed the bond sum; or (b) the undertaker has provided the cash surety which may be utilised by National Highways in the event of the undertaker failing to meet its obligations to make payments under paragraph 74 or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker under the provisions of this Part of this Schedule; or (c) a combination of a bond and cash surety together totalling 200% of the projected costs of the SRN works. Commuted sums 82 National Highways must provide to the undertaker an estimate of the commuted sum, calculated in accordance with FS Guidance S278 Commuted Lump Sum Calculation Method dated 18 January 2010 or any successor guidance, prior to the issue of the provisional certificate for the SRN works. Insurance 83 Prior to the commencement of the cable works and SRN works the undertaker or its contractor must effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) in respect of any one claim or series of claims arising from one event against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the cable works or SRN works or use of the strategic road network by the undertaker. Indemnity 84 (1) The undertaker indemnifies National Highways from and against all costs, claims, expenses, damages, losses and liabilities suffered by National Highways arising from the construction of the SRN works or maintenance of the SRN works undertaken (but always excluding any consequential loss or indirect loss suffered by National Highways) before the issue of the final certificate for the SRN works, or any construction, maintenance or decommissioning of the cable works, or exercise of, or failure to exercise, any power under this Order within 30 days of an itemised demand subject to sub-paragraphs (2) to (5). (2) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of— (a) any damage to the extent that it is attributable to the neglect or default of National Highways, its officers, servants, contractors or agents; and (b) any SRN works carried out by National Highways as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article 5 (benefit of the Order). (3) National Highways must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations. (4) National Highways must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds. (5) National Highways must use its reasonable endeavours to mitigate and to minimise any costs, claims, expenses, damages, losses and to which the indemnity under this paragraph applies where it is within National Highways’ reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties outside of National Highways’ control and if reasonably requested to do so by the undertaker National Highways must provide an explanation of how the claim has been minimised, where relevant. Maintenance of the authorised development 85 (1) The undertaker must, prior to the commencement of any works of maintenance to the specified cable works, give National Highways 28 days’ notice in writing of the date on which those works will start unless otherwise agreed by National Highways, acting reasonably. (2) If, for the purposes of maintaining the cable works or the SRN works, the undertaker needs to occupy any road space, the undertaker must comply with National Highways’ road space booking requirements and no maintenance of any works for which a road space booking is required may commence without a road space booking having first been secured. (3) The undertaker must comply with any requirements that National Highways may notify to the undertaker, such requirements to be notified to the undertaker not less than 7 days in advance of the planned commencement date of the maintenance works. (4) The provisions of paragraph 77 will apply to the opening of any part of the strategic road network following occupation of any road space under this paragraph. Land 86 (1) Following the issue of the final certificate pursuant to paragraph 80 National Highways may serve notice on the undertaker that it wishes to take a freehold transfer of land within the extent of strategic road network boundary which is not in the ownership of National Highways but has been acquired by the undertaker for the purposes of carrying out the SRN works. (2) If the undertaker receives notice under sub-paragraph (1) then the undertaker must effect a freehold transfer of the land which is the subject of the notice and complete such transfer as soon as reasonably practicable at no cost to National Highways. Expert Determination 87 (1) Article 41 (arbitration) of the Order does not apply to this Part of this Schedule. (2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers. (3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute. (4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed. (5) The expert must— (a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment; (b) permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission; (c) issue a decision within 7 days of receipt of the submissions under paragraph (b); and (d) give reasons for the decision. (6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 41 (arbitration). (7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally. PART 7 FOR THE PROTECTION OF FIVE ESTUARIES OFFSHORE WIND FARM LIMITED 88 In this Part of this Schedule— “apparatus” means any cables, ducts, electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by Five Estuaries or any successor as developer or operator of any part of the Five Estuaries offshore wind farm development onshore grid connection together with any replacement apparatus, and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus; “Five Estuaries” means Five Estuaries Offshore Wind Farm Limited (and any successor in title, transferee and lessee, as the case may be) as the undertaker with the benefit of all or part of the Five Estuaries Offshore Wind Farm Order 2025; Application 89 This Part of this Schedule applies for the protection of Five Estuaries and the following provisions, unless otherwise agreed in writing between the undertaker and Five Estuaries, have effect. 90 This Part of this Schedule ceases to have effect where in the event that Five Estuaries is granted a Development Consent Order by the Secretary of State, on the date upon which that Order expires without the development authorised by it having been commenced. Acquisition of land and protection of apparatus 91 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in land or any apparatus or override any easement or other interest of Five Estuaries otherwise than by agreement, such agreement not to be unreasonably withheld or delayed. 92 If, in the exercise of the agreement reached in accordance with paragraph 89 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 removed and any right of Five Estuaries to maintain that apparatus in that land must not be extinguished. 93 (1) Not less than 56 days (or such lesser period agreed by Five Estuaries, acting reasonably) before commencing the execution of any works authorised by the Order that are near to, will, or may affect any apparatus, the undertaker must submit to Five Estuaries a plan of such works. (2) In relation to works which will or may be situated on, over, under or within five metres measured in any direction of any apparatus, or involve embankment works within 5 metres of any apparatus, the plan to be submitted to Five Estuaries under sub-paragraph (1) must be detailed including details of the materials and products to be used in the works and describing— (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, renewal, replacement or upgrade including details of excavation and positioning of plant; (d) the position of all apparatus; and (e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus. (3) The undertaker must not commence the construction, renewal, replacement or upgrade of any works to which sub-paragraphs (1) or (2) apply until Five Estuaries has given written approval of the plan so submitted. (4) Any approval of Five Estuaries required under sub-paragraph (3)— (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and (b) must not be unreasonably withheld or delayed. (5) In relation to a work to which sub-paragraphs (1) or (2) apply, Five Estuaries may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, or for the purpose of providing or securing proper and convenient means of access to any apparatus, provided that such modifications are requested within a period of 28 days beginning with the date on which the plan under sub-paragraph (1) is submitted to it (or such lesser period agreed by the statutory undertaker, acting reasonably). For the avoidance of doubt, provided that any further iterations of the plan submitted to Five Estuaries for approval as a result of modifications required under this paragraph are not materially different to the modifications previously requested by Five Estuaries, any further required modifications will be requested by Five Estuaries as soon as reasonably practicable thereafter and in any event within 21 days of receipt of any further plans. (6) Works executed under this Order must be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (2), as amended from time to time by agreement between the undertaker and Five Estuaries and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (5) or (7) by Five Estuaries for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Five Estuaries is entitled to watch and inspect the execution of those works. (7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works (unless otherwise agreed by Five Estuaries, acting reasonably), 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. (8) The undertaker is not 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 Five Estuaries notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5) and (6) insofar is reasonably practicable in the circumstances. Access 94 If in consequence of the agreement reached in accordance with paragraph 89 or the powers granted under the Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as enables Five Estuaries to maintain or use the apparatus no less effectively than was possible before such obstruction. Build option 2A scenario 95 (1) Where the undertaker determines to proceed with build option 2A and the parties intend for additional ducts to be installed as either or both of Work Nos. 6B and 12B to be transferred to Five Estuaries then— (a) the undertaker will consult and agree with Five Estuaries on its detailed design and construction methodology, including means of access, before any application for discharge of requirements necessary to carry out either or both of Work Nos. 6B and 12B is made to the relevant planning authority; and (b) the undertaker will agree the route and specification of any permanent access to be used by both the undertaker and Five Estuaries prior to discharging any requirement for the detailed design of such accesses necessary to construct such access. (2) Any agreement required under this paragraph must not be unreasonably withheld or delayed and any requests for amendment must have regard to the scope of the assessment set out in the Environmental Statement. Collaboration 96 The undertaker and Five Estuaries 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. Arbitration 97 Any difference or dispute arising between the undertaker and Five Estuaries must, unless otherwise agreed in writing between the undertaker and Five Estuaries, be determined by arbitration in accordance with article 41 (arbitration) of the Order. PART 8 FOR THE PROTECTION OF ESSEX COUNTY COUNCIL AS LOCAL HIGHWAY AUTHORITY Application 98 The provisions of this Part of this Schedule have effect in relation to the works (as defined under paragraph 99) unless otherwise agreed in writing between the undertaker and Essex County Council in its capacity as the local highway authority. Definitions 99 In this Part of this Schedule— “as built drawings” means— drawings showing the as constructed local highways in an appropriate format (including digital storage media); drawings showing the location for utilities installed in the local highway; and specifications for materials used for the constructed local highway; “construction period” means for each work, the period from commencement of the relevant work forming part of the authorised development under this Order until the issue of the final certificate for that work; “detailed design” means drawings and other information comprising the detailed design for the alteration and improvement of local highways comprised in the authorised development; “detailed information” means drawings, specifications and other information relating to the local highway, as relevant to the works in question (insofar as both parties agree (acting reasonably) are relevant and not already provided for in any document that the undertaker is required to produce under Schedule 2 to this Order) which must be in accordance with the detailed design and include— information and assessment required to demonstrate compliance of any trenchless crossing works with DMRB Volume 4 section 1 CD 622 (Managing geotechnical risk); long and cross sectional drawings; traffic signs and road markings; landscaping, planting and any boundary features which will form part of the local highway; a schedule of timings for the works, including dates and durations for any temporary closures of any part of the local highway; traffic management proposals including any diversionary routes; a schedule of the existing local highway condition prior to commencement of construction related activities; and folio drawings in line with the Essex Standard Drawings, or such replacement or modification of the design standards applied to the construction of new roads and alternations to existing roads across the County of Essex; “DMRB” means the Design Manual for Roads and Bridges published by National Highways, or any replacement or modification of that standard for the time being in force; “DCM” means the Development Construction Manual published by Essex County Council, or any replacement or modification of that manual for the time being in force; “final certificate” means the final certificate issued by the local highway authority under paragraph 110 of this Part of this Schedule; “HPN039” means Highways Practice Note 039 Procedure for Road Safety Audit as published by Essex County Council, or any replacement or modification of that standard for the time being in force; “local highway” means any public highway including any public right of way which is maintainable, or is intended at the completion of the works in relation thereto to be maintainable, by a local highway authority; “local highway authority” means Essex County Council; “maintenance period” means 12 months from the date of the provisional certificate being served under paragraph 107 of this Part of this Schedule unless otherwise agreed in writing between the parties; “provisional certificate” means the certificate served under paragraph 107 of this Part of this Schedule; “senior representatives” means the nominated senior representative on behalf of the undertaker and persons notified to the undertaker by the relevant local highway authority as being their senior representatives; and “works” means any works authorised by this Order undertaken on, to or under any part of the local highway. Design input and commencement 100 (1) The undertaker must allow and facilitate an appropriately qualified person or persons duly appointed by the local highway authority (each being a “nominated officer”) to participate in the design process for the detailed design for the works. The undertaker agrees to incorporate reasonable representations of the nominated officer in finalising its detailed design proposal (subject to the undertaker being able to refuse implementation of any representation which would cause a breach of this Order or would entail materially new or materially different environmental effects from those reported in the environmental statement). (2) Participation under sub-paragraph (1) will be in the form of invitations (given at least 20 business days in advance and sent by email and marked ‘urgent’) to attend design meetings relating to relevant works and the provision to the nominated officer of such drawings, cross/long sections, design proposals and other information as is reasonably required to allow the nominated officer to provide an informed response on the detailed design proposals to the undertaker. (3) The nominated officer will have no less than 20 business days from the date on which the undertaker supplies information pursuant to sub-paragraph (2) to provide the undertaker with any comments upon any information provided to that officer pursuant to sub-paragraph (2). (4) No part of the works may commence until the undertaker has provided to the local highway authority the detailed information relating to that part of the works (without prejudice to the undertaker providing parts of the detailed information insofar as it relates to the operation of the local highway at a later date, provided the provision of that information is subject to this sub-paragraph and sub-paragraphs (5) to (7)). (5) The undertaker will give the local highway authority at least 20 business days to comment and provide representations by email on the detailed information provided to it under sub-paragraph (4). (6) The undertaker will incorporate any reasonable comments, representations and recommendations made by the local highway authority (acting reasonably) under sub-paragraph (5) (and, without limitation, the undertaker is able to refuse implementation of any representation or recommendation which would cause a breach of this Order, conflict with a permit issued under a permit scheme operated by the local highway authority or would entail materially new or materially different environmental effects from those reported in the environmental statement) and will provide the local highway authority with reasons for non-acceptance of any representation or recommendation as soon as reasonably practicable upon receipt of a request from the local highway authority in writing within 10 business days of its decision. (7) The works must not be carried out except in accordance with the detailed information (but subject to the process in sub-paragraphs (4) and (5) or as otherwise may be agreed prior to the date of commencement of the relevant works between the undertaker and the local highway authority. (8) This paragraph does not apply to the works to the extent that would cause an inconsistency with any provision of this Order. 101 (1) Before commencing the construction of, or the carrying out of any work authorised by this Order which involves works to a local highway the undertaker must use reasonable endeavours to agree with the local highway authority (acting reasonably) a local operating agreement covering the following as relevant to the works in question— (a) communications and customer care arrangements for communication with stakeholders and the local community including— (i) the identity of the party responsible for each activity; (ii) the identity of the representative of the undertaker or the undertaker’s contractor responsible for stakeholder engagement and communication; (iii) defined timescales for contractor responses to communications; (iv) the form of documentation required under paragraph 100 immediately above; (v) the relevant email details from time to time under paragraph 100 immediately above; (vi) road safety audit invitation process under paragraph 104 below; and (vii) the senior representation process under paragraph 111 below; (b) definition of the extents for the works areas between the highway boundary, the traffic management lead in tapers, the longitudinal coning and the end of the lead out tapers, zone of influence (being the area which is reasonably affected by those work areas), traffic management and diversion requirements and free recovery areas (as appropriate); (c) arrangements for the submission to the local highway authority of digital copies (including digital storage media) of all as-built drawings for the relevant work area including identification of any new limits of highway maintainable by the local highway authority in accordance with paragraph 107 of this Part of this Schedule; (d) where applicable, winter maintenance including anticipated winter treatments and severe weather arrangements to apply during the construction period and the maintenance period; (e) repair arrangements in relation to local highways directly affected by the construction of the authorised development; (f) where applicable, continuity of technology arrangements to apply during the construction period and the maintenance period; (g) arrangements for dealing with and recording incidents during the construction period and the maintenance period including appropriate provision of recovery vehicles; and (h) traffic management: during relevant works. (2) Any agreement completed under sub-paragraph (1) must be complied with by the undertaker and continue in force until such time as a final certificate has been issued in respect of the relevant works. Survey reinstatement 102 The undertaker must reinstate to the reasonable satisfaction of the local highway authority any part of the local highway which has been temporarily used for survey or investigation by the undertaker pursuant to article 18 (protective work to buildings), article 30 (temporary use of land for carrying out the authorised development) of this Order or any other power in this Order to the condition it was in on the date on which the survey or investigation began or such other condition as may be agreed in writing by the local highway authority. Inspections and testing of materials 103 (1) The undertaker must allow and facilitate any person acting on behalf of the local highway authority to access and inspect at all reasonable times any part of the works during their construction and before a final certificate has been issued in respect of the relevant works as is reasonably necessary to ensure that the works have been or are being carried out in accordance with the detailed design and to the appropriate standard. (2) The undertaker must allow any person duly appointed by the local highway authority to enter upon and inspect any part of the works which are in, over, under, or adjacent to any local highway or may affect any highway or any property of the local highway authority, during the carrying out of the works, and the undertaker must give to such officer reasonable facilities for such inspection. (3) Any testing reasonably requested by the local highway authority of materials used in any works must be carried out at the undertaker’s expense and in accordance with the latest version of the Manual of Contract Documents for Highway Works (or any other testing specification agreed by the undertaker and the local highway authority acting reasonably). (4) The local highway authority (and its contractor or its agent) may test (at the cost of the undertaker) all or any materials used or proposed to be used in any works and the undertaker must provide such information access and materials as is reasonably necessary to facilitate such testing. (5) The undertaker must, as soon as is reasonably practicable and in any event within 10 business days, provide the local highway authority with a copy of all available test certificates and results relevant to the works that the local highway authority has requested in writing under sub-paragraph (3). (6) The local highway authority must as soon as is reasonably practicable and in any event within 20 business days, provide the undertaker with a copy of all available test results and certificates relevant to the works carried out under sub-paragraph (4) that the undertaker has requested in writing. Road Safety Audits 104 (1) The undertaker must procure that an appropriately qualified RSA team (as defined in HPN039 or DMRB Volume 5 Section 2 Part 2 (GG 119) as advised by the local highway authority (acting reasonably) or any replacement or modification of that standard) undertakes road safety audit in accordance with the standard asset out in HPN039 or DMRB standard GG 119 as advised by the local highway authority (acting reasonably) for works which involve creation, alteration, expansion or other modifications of the local highway but not for works which consist only of trenchless installation beneath highways, and must provide copies of the reports of such audits to the local highway authority within 10 business days of their receipt by the undertaker. (2) The local highway authority must be invited to participate in the road safety audit conducted under sub-paragraph (1). (3) No works on a local highway must be commenced until a satisfactory Stage 1 and Stage 2 Road Safety Audit has been carried out and all reasonable recommendations raised by them or any exceptions are approved by the local highway authority (acting reasonably). (4) Where the report of the stage 3 and 4 road safety audit identifies any recommended measures in respect of the local highway, the undertaker must carry out, at its own expense and to the reasonable satisfaction of the local highway authority, those measures identified as part of stage 3 and 4 audit which the undertaker considers necessary (acting reasonably) and for the avoidance of doubt any matters related to the health and safety will be considered as reasonable, and which do not give rise to any new or materially different environmental effects in comparison with those identified in the environmental statement. Defects in local highways constructed by the undertaker 105 (1) Until such time as a final certificate has been issued in respect of any works, the undertaker must make good any defects in the works constructed by the undertaker to the reasonable satisfaction of the local highway authority. (2) The undertaker must submit to the local highway authority such details and information relating to making good any defects under sub-paragraph (1) as the local highway authority and the undertaker agree is reasonable in the circumstances. Provisional Certificate 106 (1) Subject to sub-paragraph (2), when the undertaker considers that the works have reached completion so that they are available and safe for use by the public it must serve a provisional certificate on the local highway authority and must allow the local highway authority the opportunity to inspect the works to identify any defects or incomplete works (and the undertaker must give proper consideration to any representations and recommendations made by the local highway authority and make good such defects pursuant to paragraph 105 or complete incomplete works). (2) The undertaker must not serve a provisional certificate on the local highway authority under sub-paragraph (1) until either— (a) a stage 3 road safety audit has been carried out in respect of the works in question in accordance with HNP039 or GG19 of DMRB as advised by the local highway authority (acting reasonably), and in the opinion of the local highway authority any reasonable recommended measures identified in the audit and which the local highway authority considers to be necessary, have been completed; or (b) the local highway authority has been provided an opportunity to inspect the works and the undertaker has, in its opinion, completed any further works or measures required to address any safety deficiencies or defects identified as a result of the inspection. (3) The local highway authority must issue to the undertaker, on request from the undertaker, a counter-signed provisional certificate in relation to any part of the works, after completion of that part of the works once a stage 3 safety audit has been carried out in accordance with sub-paragraph (2). (4) The undertaker will agree with the local highway authority (such agreement not to be unreasonably withheld or delayed) the date of opening of the works to the public and take appropriate steps to officially record the same. Maintenance 107 (1) Subject to sub-paragraph (2), the undertaker must maintain the works throughout the maintenance period to a standard appropriate to their use by the public in accordance with the DMRB. (2) Nothing in sub-paragraph (1) makes the undertaker responsible for the maintenance of any street works or maintenance works undertaken by any person other than the undertaker or which does not form part of the authorised development during the maintenance period. Final Certificate 108 (1) The local highway authority must as soon as reasonably practicable and in any event within 25 business days of the last of sub-paragraphs (a) to (f) of this paragraph being satisfied issue a final certificate in respect of the works where— (a) the maintenance period has passed; (b) all incomplete works and identified defects requiring remediation under sub-paragraph 104(1) have been remedied to the local highway authority’s reasonable satisfaction; (c) the undertaker has given the local highway authority a reasonable opportunity to inspect the relevant works in readiness for the issue of a final certificate and has given due consideration and acted accordingly in respect of any representations and recommendations made by the local highway authority in respect of the works; (d) the undertaker has provided the local highway authority with a health and safety file in respect of the relevant works conforming in all respects to the Construction (Design and Management) Regulations 2015 to the local highway authority’s reasonable satisfaction; (e) the undertaker has provided the local highway authority with traffic signal information (in so far as is relevant); (f) the undertaker has provided the local highway authority with street lighting information (in so far as is relevant); (g) in relation to any permanent works only (which for the avoidance of doubt will exclude any maintenance of the street works or maintenance works)— (i) the undertaker has provided the local highway authority with records of earthworks including source and description of fill material, description of sub grades in cut areas and test results; (ii) the undertaker has provided the local highway authority with the structural maintenance manual to include soil reports, records of materials tested and revised forms TA1 and design certificates; (iii) the undertaker has provided the local highway authority with the appropriate maintenance manual or manuals; (iv) the undertaker has provided the local highway authority with as built drawings and such detailed information as the local highway authority has requested (acting reasonably) in relation to the relevant works as built; (v) where there are structures required as part of the works the undertaker has provided the local highway authority with the appropriate construction compliance certificate or certificates; (vi) the undertaker has provided the local highway authority with a complete set of hard copies and a digital copy containing a complete set of as-built drawings for the whole of the Works showing (inter alia) undertakers’ plant and equipment such drawings to be to such scale or scales as the local highway authority may reasonably require for the purpose of subsequent maintenance and further works; (vii) the undertaker has provided the local highway authority with a plan showing edged red the land added to the local highway as public highway; and (viii) any drains which the local highway authority consider should be constructed to dispose of soil and surface water drainage in connection with the relevant works and in order to make them appropriate for public use have been constructed. (2) The issue of a final certificate by the local highway authority amounts to an acknowledgment by the relevant local highway authority that the construction, alteration or diversion of a highway has been completed to its reasonable satisfaction for the purposes of article 10 (construction and maintenance of new or altered highway) of this Order. Emergency Work 109 Nothing in this Part of this Schedule prevents the local highway authority from carrying out any work or taking such action as deemed appropriate forthwith without prior notice to the undertaker in the event of an emergency or danger to the public. Land interests 110 Following the issuing of the final certificate under paragraph 108 in respect of any part of the local highway, the undertaker must, if requested by the local highway authority, in respect of a local highway which is to be maintainable by the local highway authority following, and as a result of, the completion of those works execute and complete a transfer to the local highway authority at nil consideration and at the cost of the undertaker of any land and rights which have been compulsorily acquired or voluntarily acquired (following a written request by the local highway authority) under this Order and which are necessary for the maintenance and operation of a local highway. Disputes 111 (1) In the event of any disagreement between the undertaker and the local highway authority arising out of or in connection with this Part of this Schedule which requires the agreement of the undertaker and the local highway authority jointly or the approval of the local highway authority and which cannot be resolved within 10 business days of the disagreement arising under paragraphs 100, 101, 102, 103 and 105, either party may request a review of the issue in disagreement by the parties giving notice in writing to their senior representatives. (2) The senior representatives will consider any such request and use all reasonable endeavours in good faith to reach agreement to resolve any disagreement. (3) Where agreement is not reached by the senior representatives within 20 business days of a request being made under sub-paragraph (1), the disagreement may be determined by arbitration in accordance with article 41 (arbitration) of this Order. PART 9 FOR THE PROTECTION OF ANGLIAN WATER Application 112 For the protection of Anglian Water the following provisions have effect, unless otherwise agreed in writing between the undertaker and Anglian Water. Interpretation 113 In this Part of this Schedule— “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 (company number 02366656) whose registered office is at Lancaster House, Lancaster Way, Ermine Business Park, Huntington, Cambridgeshire PE29 6XU; “apparatus” means— works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage; any drain or works vested in Anglian Water under the Water Industry Act 1991; 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 must be 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; and “plan” includes all sections, drawings, specifications and method statements. Access 114 (1) Access for Anglian Water or any person acting under its instruction, including access for vehicles and plant, to any apparatus, utilities and services will not be extinguished or prevented and must not be unreasonably restricted or delayed by the undertaker during the construction, operation, maintenance or decommissioning of the authorised development in accordance with this sub-paragraph (1). (2) Unreasonable delay or restriction in sub-paragraph (1) will not prevent the temporary restriction of access for other users (including access by the public) or the control or marshalling of access to facilitate the safe movement of large vehicles or plant or the carrying out of works to the access route by the undertaker, subject to the provisions of this sub-paragraph (2). On street apparatus 115 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Anglian Water are regulated by the provisions of Part 3 of the 1991 Act. Apparatus in closed or restricted streets 116 Regardless of the temporary closure, or diversion of any highway under the powers conferred by article 12 (temporary restriction of use of streets), Anglian Water is at liberty at all times to take all necessary access across any such closed highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that highway. Protective works to buildings 117 The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Anglian Water (such agreement not to be unreasonably withheld). Acquisition of land 118 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. Removal of apparatus 119 (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 120. (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 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 an undertaker reasonably needs to remove any of its 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, or land secured by, the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, 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, 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 Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (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 41 (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 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, unless these works are to be carried out by the undertaker in accordance with sub-paragraph (6). (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; or (b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question. Facilities and rights for alternative apparatus 120 (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 41 (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 Anglian Water in respect of the apparatus in question, whether under the 2016Regulations or other legislation. Retained apparatus 121 (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 sub-paragraph (2), the undertaker must submit to Anglian Water 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 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, section and description under sub-paragraph (1) is submitted to it. (4) If Anglian Water in accordance with sub-paragraph (2) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 112 to 114 and 116 to 118 apply as if the removal of the apparatus had been required by the undertaker under paragraph119(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, 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, section and description. (6) The undertaker is not required to comply with sub-paragraph (1) 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 reasonable 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 (1) 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) 4 metres where the diameter of the pipe is less than 250 millimetres; (b) 5 metres where the diameter of the pipe is between 250 and 400 millimetres; and (c) a distance to be agreed on a case-by-case basis where the diameter of the pipe exceeds 400 millimetres. Expenses and costs 122 (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 but always excluding any consequential loss or indirect loss suffered by Anglian Water. (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, (c) 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 41 (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. (5) An amount which apart from this sub-paragraph would be payable to Anglian Water in respect of works by virtue of sub-paragraph (1) must, 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 Anglian Water 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. 123 (1) Subject to the following provisions of this paragraph, if by reason or in consequence of the construction of any such works referred to in sub-paragraphs 119(1) or 119(2), 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, accompanied by an invoice or claim from 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 Anglian Water, by reason or in consequence of any such damage or interruption but always excluding any consequential loss or indirect loss arising from 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. (5) Anglian Water must use reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the undertaker must bear and pay the costs for. Cooperation 124 For the avoidance of doubt whenever Anglian Water’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed. 125 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 119(2) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph121, 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. 126 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. 127 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. 128 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. PART 10 FOR THE PROTECTION OF AFFINITY WATER Application 129 The following provisions have effect for the protection of Affinity Water, unless otherwise agreed in writing between the undertaker and Affinity Water. Interpretation 130 In this Part of this Schedule— “Affinity Water” means Affinity Water Limited (Company Registration No. 02546950) whose registered office address is at Tamblin Way, Hatfield, Hertfordshire, AL10 9EZ or any wholly- owned subsidiary (as defined in section 1159 of the Companies Act 2006); “alternative apparatus” means alternative apparatus adequate to enable Affinity Water to fulfil its statutory functions in a manner no less efficient than previously; “Affinity Water’s apparatus” means— mains, pipes, connections, reservoirs, or any other apparatus belonging to or maintained by Affinity Water for the purposes of water supply; and mains, pipes, connections or any other apparatus that is the subject of an agreement to adopt by Affinity Water made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991; “authorised works” means “authorised development” and “ancillary works” as both are defined in article 2 (interpretation) of the Order together with the use and maintenance of such authorised development or ancillary works, which for the avoidance of doubt includes the construction, use and maintenance of any works pursuant to this Part of this Schedule; “commence” and “commencement” includes the first carrying out of 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, intrusive investigations for the purpose of assessing ground conditions, and the first implementation of environmental mitigation, including planting; “functions” includes powers and duties; “HAUC Advice Note” means HAUC Advice Note No. 2010/01 (available at https://static.hauc-uk.org.uk/downloads/Advice_Note_No_2010-01.pdf), including the Diversionary Works Calculator HAUC(UK) (hauc-uk.org.uk) (https://www.hauc-uk.org.uk/resources/diversionary- works-calculator) referred to at paragraph 29.4 of that advice note; “in”, in a context referring to Affinity Water’s apparatus or alternative apparatus in land, includes a reference to Affinity Water’s apparatus or alternative apparatus under, over or upon land; “plan” includes all descriptions, designs, sections, 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; “protective works” means the underpinning, strengthening and any other reasonable works the purpose of which is to prevent damage that may be caused to Affinity Water’s apparatus by the carrying out, maintenance, construction or use of the authorised works; “specified works” means any authorised works under the Order (including any works of maintenance) that— may in any way adversely affect Affinity Water’s apparatus; are within the following distances of Affinity Water’s apparatus measured from the outer surface of such apparatus, the removal of which has not been required by the undertaker under paragraph 135(2) or otherwise— where the apparatus is a pipe, 2 metres where the diameter of the pipe is less than 150 millimetres; where the apparatus is a pipe, 3 metres where the diameter of the pipe is between 150 and 450 millimetres; where the apparatus is a pipe, 4 metres where the diameter of the pipe exceeds 450 millimetres; and 4 metres of any other apparatus, unless otherwise agreed in writing with Affinity Water (acting reasonably); and outside the distances referred to in (d) will or may have electromagnetic or high voltage effects on any of Affinity Water’s apparatus, the removal of which has not been required by the undertaker under paragraph 135(2) or otherwise; and “water main” has the meaning given in the Water Industry Act 1991. On street apparatus 131 Except for paragraphs 132 (apparatus in closed streets), 137 (specified works), 138 (expenses and costs) and 139 (indemnity) of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights of Affinity Water or of Affinity Water’s apparatus, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Affinity Water are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act. Apparatus in closed streets 132 Regardless of the temporary closure, alteration, diversion or restriction of use of any street under the powers conferred by article 12 (temporary restriction of use of streets), Affinity Water is at liberty at all times to take all necessary access across any such closed street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any of Affinity Water’s apparatus which at the time of the closure or diversion was in that street. Protective works to buildings 133 The undertaker, in the case of the exercise of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access (including access required for maintenance) to, or maintenance of, any of Affinity Water’s apparatus unless otherwise agreed in writing with Affinity Water, such agreement not to be unreasonably withheld. Acquisition of land 134 (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 must not— (a) appropriate or acquire any interest in land held by Affinity Water or take temporary possession of any of Affinity Water’s apparatus; or (b) appropriate, acquire, extinguish, interfere with or override any easement or other interest or right of which Affinity Water or Affinity Water’s apparatus has the benefit otherwise than with prior written consent of Affinity Water. Such consent may be subject to such conditions as Affinity Water may reasonably require and such conditions may include (but not be limited to)— (i) provisions to ensure the creation, grant or transfer of such alternative easements, interests or rights for the benefit of Affinity Water’s apparatus (including any alternative apparatus) as Affinity Water may reasonably require; and (ii) where Affinity Water’s apparatus is to remain in, on, under or over any authorised works or property of the undertaker that are to be present as a result of any appropriation, acquisition, extinguishment, interference or overriding within paragraph (b), reasonable provisions in respect of the necessary consent by the undertaker that might otherwise be required from the undertaker under Schedule 13 to the Water Industry Act 1991 in respect of any interference to such authorised works or property of the undertaker resulting from the carrying out of any works or the exercise of any other powers by Affinity Water in respect of such of Affinity Water’s apparatus. (2) The reasonable provisions in sub-paragraph (1)(b)(ii) may include requirements for the undertaker and Affinity Water to determine no later than the date of completion of the authorised works, works or exercise of powers or categories of works or exercise of powers the carrying out or exercise of which by Affinity Water is capable of being consented to in advance by the undertaker. In respect of such works or powers that are capable of being consented to in advance by the undertaker, that advance consent under Schedule 13 of the Water Industry Act 1991 will be given by the undertaker on completion of the authorised works. In respect of those works or powers the carrying out or exercise of which by Affinity Water is not capable of being consented to in advance, the reasonable provisions will set out a process for the giving of the consent under Schedule 13 within specified expedited timescales (such timescales to be agreed between the undertaker and Affinity Water acting reasonably) following any request for such consent by Affinity Water. Removal of apparatus 135 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any of Affinity Water’s apparatus is placed, or over which any access to any of Affinity Water’s apparatus is enjoyed, and requires that Affinity Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Affinity Water to maintain that apparatus in that land and to gain access to it must not be extinguished, until— (a) alternative apparatus has been constructed and is in operation, and access to it has been granted to the reasonable satisfaction of Affinity Water in accordance with sub-paragraphs (2) to (9); and (b) facilities and rights have been secured for that alternative apparatus in accordance with paragraph 136 (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 of Affinity Water’s apparatus placed in that land, the undertaker must give to Affinity Water 56 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. In that case (or where, in consequence of the exercise of any of the powers conferred by this Order, Affinity Water reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Affinity Water, in so far as the undertaker has the ability to reasonably grant or transfer them, the necessary facilities and rights and consents, and the benefit of any statutory permits granted to the undertaker in respect of the apparatus in question (whether under the 2016 Regulations or other legislation), for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus. Such rights and consents will include reasonable provisions in respect of the necessary consent by the undertaker that might otherwise be required from the undertaker under Schedule 13 to the Water Industry Act 1991 in respect of any interference to the undertaker’s authorised works or property resulting from the carrying out of any works or the exercise of any other powers by Affinity Water in respect of the alternative apparatus. (3) The reasonable provisions in sub-paragraph (2) may include requirements for the undertaker and Affinity Water to determine no later than the date of completion of the authorised works, works or exercise of powers or categories of works or exercise of powers the carrying out or exercise of which by Affinity Water is capable of being consented to in advance by the undertaker. In respect of such works or powers that are capable of being consented to in advance by the undertaker, that advance consent under Schedule 13 to the Water Industry Act 1991 will be given by the undertaker on completion of the authorised works. In respect of those works or powers the carrying out or exercise of which by Affinity Water is not capable of being consented to in advance, the reasonable provisions will set out a process for the giving of the consent under Schedule 13 within specified expedited timescales (such timescales to be agreed between the undertaker and Affinity Water acting reasonably) following any request for such consent by Affinity Water. (4) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, or the benefit of any statutory permits granted to the undertaker, Affinity Water will, on receipt of a written notice to that effect from the undertaker, as soon as reasonably practicable use its reasonable endeavours to obtain the necessary facilities and rights and consents in the land in which the alternative apparatus is to be constructed, and any required statutory permits. (5) Affinity Water will have an absolute discretion whether or not to use or seek any powers of compulsory acquisition that may be available to Affinity Water for the purposes of sub-paragraph (4). (6) 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 accordance with such plans as may be agreed between Affinity Water and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (arbitration). (7) Affinity Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 41 (arbitration), and subject to any written diversion agreement having been entered into between the parties and after the grant to Affinity Water of any such facilities and rights or statutory permits as are referred to in sub-paragraphs (2) or (4), proceed in accordance with a programme that has been agreed or settled by arbitration in accordance with article 41 (arbitration) to construct and bring into operation the alternative apparatus and subsequently to remove any of Affinity Water’s apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule. (8) Regardless of anything in sub-paragraph (7) if the undertaker gives notice in writing to Affinity Water that the undertaker desires itself to execute any work, or part of any work, in connection with the construction or removal of Affinity Water’s apparatus in any land of the undertaker, that work, instead of being executed by Affinity Water, may be executed by the undertaker, with the prior written consent of Affinity Water (which must not be unreasonably withheld or delayed and is to be subject to any conditions as are reasonable and proper to protect Affinity Water’s apparatus) in accordance with plans and in a position agreed between Affinity Water and the undertaker, or in default of agreement determined by arbitration in accordance with article 41(arbitration), without unnecessary delay under the superintendence, if given, and to the reasonable approval of Affinity Water. (9) Following such approval given in writing by Affinity Water, any alternative apparatus will be deemed to be adopted by Affinity Water as though it had been adopted under s.51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991 on the date 28 days after the giving of such approval or such later date as is agreed in writing between Affinity Water and the undertaker. (10) If Affinity 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 the undertaker shall have recourse to arbitration in accordance with article 41 (arbitration). (11) In carrying out any work under sub-paragraph (8), the undertaker must comply with all statutory obligations which would have been applicable to the apparatus. (12) Nothing in sub-paragraph (8) authorises the undertaker to— (a) execute any work of connection to, or disconnection from, Affinity Water’s operational network; (b) execute the placing, installation, bedding, packing, removal, connection or disconnection of any of Affinity Water’s apparatus, or execute any excavation and filling around any of Affinity Water’s apparatus (where the apparatus is laid in a trench) within 600 millimetres of any apparatus to be retained in situ; or (c) carry out any works in relation to any water mains. (13) Whenever alternative apparatus is to be or is being substituted for existing Affinity Water’s apparatus, the undertaker must, before taking any steps which will trigger the need for those substitution works, use all reasonable endeavours to comply with Affinity Water’s reasonable requests for a reasonable period of time to enable Affinity Water to— (a) make network contingency arrangements; or (b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question. Facilities and rights for alternative apparatus 136 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Affinity Water facilities and rights for the construction, use, maintenance and protection of alternative apparatus in substitution for Affinity Water’s apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Affinity Water and must be no less favourable on the whole to Affinity Water than the facilities and rights enjoyed by it in respect of Affinity Water’s apparatus to be removed unless otherwise agreed by Affinity Water or in default of agreement settled by expert determination in accordance with paragraph 141 (expert determination) unless otherwise agreed in writing by the parties. (2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, any expert will— (a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised works and for securing any subsequent alterations or adaptions of the alternative apparatus which may be required to prevent interference with the proposed works of the undertaker; and (b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to Affinity Water’s apparatus for which the alternative apparatus is to be substituted. (3) 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 expert less favourable on the whole to Affinity Water than the facilities and rights enjoyed by it in respect of Affinity Water’s apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the expert must make such provision for the payment of compensation by the undertaker to Affinity Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. Specified works 137 (1) Not less than 56 days before commencement of any specified works, the undertaker must submit to Affinity Water a plan in respect of the specified works to be executed. (2) The plan must provide details of— (a) the exact position, including level, of the specified works and of all of Affinity Water’s apparatus; (b) a method statement describing the manner of their construction or renewal including details of excavation and positioning of plant; (c) detailed drawings showing every alteration proposed to be made to or close to any such apparatus; (d) all expected physical impacts (including but not limited to electromagnetic or high voltage effects) that the construction, maintenance or operation of the specified works may have on any of Affinity Water’s apparatus, the removal of which has not been required by the undertaker under paragraph 135(2) or otherwise; and (e) any intended maintenance regimes. (3) The undertaker must not commence any specified works until the plan has been approved by Affinity Water. (4) Any approval by Affinity Water given under sub-paragraph (3)— (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5)(a); and (b) must not be unreasonably withheld or delayed. (5) Affinity Water may require— (a) such modifications to be made to the plan as may be reasonably necessary for the purpose of securing Affinity Water’s apparatus against interference or risk of damage or for the provision of protective works or for the purpose of providing or securing reasonable means of access to Affinity Water’s apparatus; and (b) the undertaker to re-submit the plan as modified, for approval to Affinity Water, and Affinity Water must advise the undertaker within 14 days of submission of the revised plan whether it is approved. (6) Affinity Water may as part of giving its approval under sub-paragraph (3) require that any part of specified works comprising of the matters listed below is carried out by Affinity Water, not the undertaker, and in which case Affinity Water must proceed with such part of the specified works in accordance with a programme that has been agreed or settled by arbitration in accordance with article 41 (arbitration)— (a) the placing, installation, bedding, packing, removal, connection or disconnection of any of Affinity Water’s apparatus, or execute any excavation and filling around any of Affinity Water’s apparatus (where the apparatus is laid in a trench) within 600 millimetres of any apparatus to be retained in situ; or (b) any works in relation to any water mains. (7) If the revised plan is not approved within 14 days, the undertaker may require a meeting to be held between the chief engineers of the undertaker and Affinity Water to agree the plan. (8) If the undertaker and Affinity Water fail to reach an agreement on the plan, the dispute shall be settled by arbitration in accordance with article 41 (arbitration). (9) Specified works must only be executed in accordance with— (a) the plan submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and Affinity Water or as otherwise settled by arbitration under sub-paragraph (8); and (b) all conditions imposed under sub-paragraph (4)(a), and Affinity Water will be entitled to supervise and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation. (10) Where Affinity Water requires (acting reasonably) any protective works to be carried out by itself or by the undertaker to ensure the safety of Affinity Water’s apparatus (whether of a temporary or permanent nature), Affinity Water must specify what these protective works are, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph. The protective works must be carried out to Affinity Water’s reasonable satisfaction prior to the commencement of any specified works for which protective works are required and Affinity Water must give notice of its requirement (in writing) for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency) and in that written notice Affinity Water must specify what the protective works are and how these ensure the safety of Affinity Water’s apparatus (Affinity Water acting reasonably). (11) If Affinity Water in accordance with this sub-paragraph (11) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any of Affinity Water’s apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (1) to 137(3) and (7) to 137(8) apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph135(2). (12) Nothing in this paragraph precludes the undertaker from submitting a new plan instead of the plan previously submitted, and the provisions of this paragraph apply to and in respect of the new plan provided that— (a) where the new plan is materially different from the plan previously submitted, this new plan shall be submitted at least 56 days before commencing the execution of any works; and (b) where the new plan is not materially different from the plan previously submitted, this new plan shall be submitted at least 28 days before commencing the execution of any works, unless otherwise agreed with Affinity Water acting reasonably. (13) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency works, but in that case must give to Affinity Water notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with reasonable requirements of Affinity Water in so far as is reasonably practicable in the circumstances. (14) In this paragraph, “emergency works” means works which, at the time when they are executed are required in order to put an end to, or to prevent the occurrence of, existing or imminent circumstances (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property. (15) Nothing in sub-paragraph (12) authorises the undertaker to carry out the works comprising of the matters listed in sub-paragraph (6) and should any such works need to be undertaken they will be undertaken by Affinity Water, not the undertaker and in which case Affinity Water must proceed with such part of the specified works in accordance with a programme that has been agreed or settled by arbitration in accordance with article 41 (arbitration). (16) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works the undertaker shall implement an appropriate ground mitigation scheme save that Affinity Water retains the right to carry out any further necessary protective works for the safeguarding of Affinity Water’s apparatus and can recover any such costs in line with paragraph 138 (expenses and costs). Expenses and costs 138 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Affinity Water within 30 days of receipt of an itemised invoice or claim from Affinity Water all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by Affinity Water but excluding any consequential loss or indirect loss, in, or in connection with— (a) the supervision, inspection, removal, relaying, replacing, alteration or protection of any of Affinity Water’s apparatus or the supervision, inspection, adoption and construction of any new apparatus or alternative apparatus which may be required in connection with the authorised works; and (b) the consideration and approval of any plan as required by this Part of this Schedule. (2) The costs as referred to in sub-paragraphs (1)(a) and (1)(b) are to include but not be limited to— (a) any costs reasonably incurred by or compensation properly paid by Affinity Water in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by Affinity Water as a consequence of Affinity Water— (i) using its own compulsory purchase powers to acquire any necessary rights under paragraph135(4); or (ii) exercising any compulsory purchase powers in the Order transferred to or benefitting Affinity Water; (b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place; (c) the cutting off of any of Affinity Water’s apparatus from any other of Affinity Water’s 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 as referred to in this Part of this Schedule; (g) any costs reasonably necessary in consequence of the execution of any such works as are referred to in this Part of this Schedule; and (h) any costs incurred as a result of any penalties or fines imposed on Affinity Water by any regulator directly resulting from the execution of or failure to execute in accordance with this Part of this Schedule any such works as are referred to in this Part of this Schedule. (3) The value of any of Affinity Water’s apparatus that is removed and re-used by Affinity Water, or any value recovered by Affinity Water from the scrapping of any apparatus removed and not re-used, under the provisions of this Part of this Schedule must be deducted from any sum payable under sub-paragraph (1), 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 by Affinity Water 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 by Affinity Water 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 41 (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 Affinity Water by virtue of sub-paragraph (1) must be reduced by the amount of that excess. (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; (b) where it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or to place it at the existing depth, the capacity, dimensions and depth of the apparatus is to be treated as if it has been agreed or so determined; and (c) 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 an inspection chamber is to 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 Affinity Water in respect of works by virtue of sub-paragraph (1) must, 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 Affinity Water 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. (7) The amount of the reduction under sub-paragraph (6) must be calculated using the methodology set out in paragraph 29 of HAUC Advice Note and— (a) the 1991 Act and any regulations made under that Act (including the cost-sharing regulations made under section 85 (sharing of cost of necessary measures) of that Act); and (b) any other codes of practice or guidance issued under the 1991 Act or regulations made under that Act, do not apply in respect of any such calculation under sub-paragraph (6). (8) In relation to any anticipated costs to be payable by the undertaker to Affinity Water pursuant to sub-paragraph 138(1) Affinity Water must provide the undertaker, on receipt of a request from the undertaker, with a schedule showing its estimate and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this paragraph 138. (9) Affinity Water must give the undertaker a final account of the costs in relation to which a schedule has been provided under sub-paragraph 138(8) and within 30 days of the issue of the final account— (a) if the final account shows a further sum as due to Affinity Water the undertaker must pay to Affinity Water the sum shown due to it; and (b) if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by Affinity Water, Affinity Water must refund the difference to the undertaker. (10) Where the undertaker does not agree that an estimate provided by Affinity Water under sub-paragraph 138(8) is reasonable, the undertaker must notify Affinity Water of that within 15 days of receiving the schedule of estimate. The undertaker and Affinity Water will escalate the estimate internally and will each nominate a senior officer to attend a discussion on the estimate. Where the parties fail to reach agreement following such discussion, any difference or dispute over reasonableness of any excess sum shall be determined by expert determination in accordance with paragraph 141. Indemnity 139 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, operation or maintenance of any of the authorised works or any such works referred to in sub-paragraphs 136(1) or 136(2), or by reason of any subsidence resulting from the authorised works or such works, any damage is caused to any of Affinity Water’s apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal pursuant to paragraph 135) or property of Affinity Water, or there is any interruption in any service provided, or in the supply of any goods, by Affinity Water, or, Affinity Water becomes liable to pay any amount to any third party incurred in accordance with the provisions of this paragraph, the undertaker must— (a) bear and pay the cost reasonably incurred by Affinity Water, accompanied by an invoice, in making good such damage, restoring the supply or ensuring continuity of supply; and (b) indemnify Affinity Water against all liabilities, claims, demands, losses (excluding any loss of profit), damages, proceedings, penalties, fines, levies, surcharges, or costs which may be made or taken against or recovered from or incurred by Affinity Water, by reason or in consequence of any such damage or interruption. (2) The fact that any act or thing may have been done by Affinity Water on behalf of the undertaker or in accordance with a plan approved by Affinity Water under paragraph 137 or in accordance with any requirement of Affinity 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 Affinity 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 in respect of any damage or interruption to the extent that it is attributable to the unlawful act, neglect or default of Affinity Water, its officers, servants, contractors or agents. (4) Affinity Water must give the undertaker reasonable notice of any such claim or demand and, unless payment is required in connection with a statutory compensation scheme, no settlement or compromise is to be made without first consulting the undertaker and considering their representations. (5) Affinity Water must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds. (6) Affinity Water must use reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under this paragraph applies where it is within Affinity Water’s reasonable ability and control to do so but those endeavours expressly exclude any obligation to mitigate liability arising from third parties which is outside of Affinity Water’s control. If reasonably requested to do so by the undertaker Affinity Water must provide an explanation of how the claim has been mitigated, where relevant. Cooperation 140 (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Affinity Water requires the removal of Affinity Water’s apparatus under paragraph 135(2) or Affinity Water makes requirements for the protection or alteration of Affinity Water’s apparatus under paragraph 136, 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 works and taking into account the need to ensure the safe and efficient operation of Affinity Water’s undertaking, using existing processes where requested by Affinity Water, provided it is appropriate to do so, and Affinity Water must use all reasonable endeavours to co-operate with the undertaker for that purpose. (2) For the avoidance of doubt whenever Affinity Water’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed. (3) Where the undertaker identifies any apparatus which may belong to or be maintainable by Affinity Water but which has not previously been indicated by Affinity Water as being apparatus belonging to it, the undertaker shall inform Affinity Water of the existence and location of the apparatus as soon as reasonably practicable. If Affinity Water confirms that it owns or maintains the apparatus, that apparatus shall then be afforded the same protection under this Part of this Schedule as other apparatus belonging to Affinity Water. (4) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Affinity Water in respect of any of Affinity Water’s apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. (5) The undertaker and Affinity Water may by written agreement substitute any periods of time set out in this Part of this Schedule for any other period of time. Expert Determination 141 (1) Article 41 (arbitration) of the Order does not apply to paragraph 136 (facilities and rights for alternative apparatus) of this Part of this Schedule. (2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers. (3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute. (4) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date that an expert is appointed. (5) The expert must— (a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment; (b) permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission; (c) issue a decision within 7 days of receipt of the submissions under sub-paragraph (b); and (d) give reasons for the decision. (6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 41 (arbitration). (7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally. Access 142 If, in consequence of any agreement reached in accordance with paragraph 134 or of the exercise of the powers conferred by this Order, the access to any of Affinity Water’s apparatus is materially obstructed, the undertaker must at all times provide such alternative rights and means of access to such apparatus as will enable Affinity Water to maintain or use Affinity Water’s apparatus no less effectively than was possible before such obstruction. PART 11 FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY TRANSMISSION Application 143 The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and National Grid. Interpretation 144 In this Part— “apparatus” means electric lines or electrical plant (as defined in the 1989 Act, belonging to or maintained by National Grid together with any replacement apparatus, and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus; “EACN Substation Area” means the land shown in the lands plans as plots 16-006, 16-007 and 16-008, within which National Grid intends to construct the New National Grid Substation; “Incentive Deduction” means any incentive deduction National Grid Electricity Transmission Plc receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised development; “New National Grid Substation” means the substation to be constructed by National Grid within the EACN Substation Area as part of the NTT project, and into which the undertaker will connect as part of the authorised development; “New National Grid Substation Boundary” means the area forming the new National Grid substation located within the EACN Substation Area, which lies or will lie within the final fenceline of that substation site and within which the connection agreement between the undertaker and National Grid Electricity System Operator applies; “NTT project” means the Norwich to Tilbury Grid reinforcement project, for which National Grid intends to submit a Development Consent Order application; “Specified Works” means any of the onshore works or activities undertaken in association with the onshore works which— will or may be situated over, or within 15 metres measured in any direction of any apparatus; and/or may in any way adversely affect any apparatus; and/or includes any of the activities that are referred to in development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”; “STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and National Grid Electricity System Operator as modified from time to time; “STC Claims” means any claim made under the STC against National Grid arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid Electricity Transmission Plc’s transmission system which arises as a result of the authorised works; and “Transmission Owner” means as defined in the STC. Compulsory acquisition of land and rights 145 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in land or any apparatus or override any easement or other interest of National Grid otherwise than by agreement, such agreement not to be unreasonably withheld or delayed. 146 Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker must not acquire any interest in the part or parts of plots 16-006, 16-007 and 16-008 which is or will be within the New National Grid Substation Boundary, provided that notification of the final location of that substation is received from National Grid prior to the exercise of any power to compulsorily acquire rights over plots 16-006, 16-007 and 16-008 being exercised. 147 Where the undertaker acquires any right in land that is subsequently notified to the undertaker as being within the New National Grid Substation Boundary, the undertaker may not exercise, rely on such right within that boundary unless otherwise agreed. 148 (1) Subject to sub-paragraph (2), the undertaker must not permanently acquire any interest in plots 16-006, 16-007 and 16-008 until the design of the New National Grid Substation has been finalised, and the final location of the undertaker’s connection bay has been identified and notified to the undertaker, and the extent of land rights necessary for the connection (cable route location and extent of access rights and easement) has been agreed with National Grid. (2) Where, before the design of the New National Grid Substation has been finalised and the final location of the undertaker’s connection bay has been identified and notified to the undertaker— (a) it is reasonably necessary to maintain the undertaker’s construction programme; or (b) the expiry of temporary possession powers in plots 16-006, 16-007 and 16-008 means that it is necessary for the undertaker to acquire permanent land rights in plots 16-006, 16-007 and 16-008; then the undertaker may exercise powers under this Order to compulsorily acquire the necessary rights for the cables and access thereto over all of plots 16-006, 16-007 and 16-008. 149 In so far as National Grid has acquired an interest in plots 16-006, 16-007 and 16-008 and/or is in occupation of any part of those plots, the undertaker may not exercise temporary possession powers over plots 16-006, 16-007 and 16-008 without the prior agreement of National Grid to such exercise being obtained, which consent must not be unreasonably withheld or delayed. Protection of National Grid apparatus 150 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to this Order, the undertaker may not, under the powers of this Order, adjust, remove, alter, divert or interfere with any apparatus owned by National Grid (including any future electric transmission infrastructure in the vicinity of the Order land which National Grid may require to discharge its statutory duties) otherwise than by agreement. (2) The undertaker will not seek to acquire or exercise any rights to remove any National Grid apparatus under compulsory powers granted by this Order, including but not limited to the power to install, alter, re-lay, maintain, protect, adjust or remove pipes, cables or conduits or apparatus including but not limited to electricity poles, electricity pylons, electricity masts, overhead electricity lines, telecommunications cables and any ancillary equipment and apparatus public and private drains, watercourses, sewers, ponds or culverts, service media (including the pipes, cables or conduits or apparatus of statutory undertakers), without the prior written consent of National Grid to any such acquisition or exercise being obtained. 151 National Grid’s rights, including without limitation rights to retain, access and maintain its apparatus and any future apparatus where that apparatus is located in the vicinity of the Order land, which National Grid may require to discharge its statutory duties, will not be impeded throughout any period of temporary possession or survey works authorised by this Order. In exercising such rights within any area of which the undertaker is in temporary possession, National Grid will have reasonable regard to any request by the undertaker which the undertaker advises National Grid is necessary to comply with health and safety obligations and/or any requirement under the Construction (Design and Management) Regulations 2015 as to how National Grid exercises such rights and carries out any works. Works in the EACN Substation Area 152 At all times after National Grid has commenced construction and when the undertaker is— (a) working within plots 16-006, 16-007 and 16-008; and (b) within any area within the ownership or control of National Grid; and/or (c) are carrying out any Specified Works; but (d) (excepting any works which are works regulated by the connection agreement between the undertaker and National Grid Energy Systems Operator (or a successor thereto) and carried out within the New National Grid Substation Boundary which will be governed solely by that agreement and not this Part; to comply with paragraphs 153 and 154 of this Part. 153 (1) Not less than 56 days before the commencement of any works to which paragraph 152 applies, the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity assets. (2) In relation to works to which paragraph 152 applies, the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe (in so far as is relevant to those works)— (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; (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; (f) any intended maintenance regimes; (g) an assessment of risks of rise of earth issues; and (h) a ground monitoring scheme, where required. (3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing— (a) details of any cable trench design including route, dimensions, clearance to pylon foundations; (b) demonstration that pylon foundations will not be affected prior to, during and post construction; (c) details of load bearing capacities of trenches; (d) details of any cable installation methodology including access arrangements, jointing bays and backfill methodology; (e) a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route; (f) written details of the operations and maintenance regime for any cable, including frequency and method of access; (g) assessment of earth rise potential if reasonably required by National Grid Electricity Transmission Plc’s engineers; and (h) evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to and including 26 tonnes in weight. (4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted. (5) Any approval of National Grid required under sub-paragraph (4)— (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and (b) must not be unreasonably withheld. (6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus. (7) Works executed under sub-paragraphs (2) or (3) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works. (8) Where National Grid 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 National Grid’s reasonable satisfaction prior to the commencement of the work(s) for which protective works are required and National Grid shall give notice its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency). (9) If National Grid in accordance with sub-paragraphs (6) or (8) 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 (6) or (8) apply as if the removal of the apparatus had been required by the undertaker. (10) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the works to which paragraph 152 applies, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan. (11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as either defined in the 1991 Act, but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances and comply with sub-paragraph (12) at all times. (12) At all times when carrying out any works to which paragraph 152 applies, the undertaker must comply with National c’s policies for development near overhead lines EN43-8 and the Health and Safety Executive’s guidance note 6 “Avoidance of Danger from Overhead Lines”. Indemnity 154 (1) Where paragraph 152 applies, subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction use or maintenance or failure of any works to which paragraph 152 applies 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 property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker must— (a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and (b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party and including STC Claims or an Incentive Deduction other than arising from any default of National Grid. (2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid 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) shall impose 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 National Grid, its officers, servants, contractors or agents; and/or (b) any works to which paragraph 152 applies and/or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Act or article 5 (benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any works to which paragraph 152 applies yet to be executed and not falling within this sub-paragraph 154(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph154; and/or (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. (4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations. (5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds. (6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant. 155 Any dispute arising between the undertaker and National Grid under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 41 (arbitration). PART 12 FOR THE PROTECTION OF CADENT GAS LIMITED Application 156 For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect. Interpretation 157 In this Part of this Schedule— “apparatus” means any gas mains, pipelines, pipes, pressure governors, ventilators, cathodic protection (including transformed rectifiers and any associated groundbeds or cables), cables, marker posts, block valves, hydrogen above ground installations or other apparatus belonging to, or maintained by, Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking 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 of the Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule; “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; “Cadent’s undertaking” means the rights, duties and obligations of Cadent as a public gas transporter within the meaning of Section 7 of the Gas Act 1986; “commence” and “commencement” include any below ground surveys, intrusive monitoring or work operations, remedial work in respect of any contamination or other adverse ground condition; “facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access; “functions” includes powers and duties; “ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event; “ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, 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” will include 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, proper and sufficient 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 (including maintenance) 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 paragraph 162(2) or otherwise; may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 162(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 proximity to gas apparatus Specification for safe working in the vicinity of Cadent Assets. On Street apparatus 158 (1) This Part of this Schedule does 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, except for— (a) paragraphs 159, 164, 165 and 166; and (b) where sub-paragraph 158(2) applies, paragraphs 162 and 163. (2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act. (3) Notwithstanding article 9 (application of the 1991 Act) or any other powers in this Order generally, s85 of the 1991 Act in relation to cost sharing and the regulations made thereunder will not apply in relation to any diversion of apparatus of Cadent under the 1991 Act. Access to apparatus 159 Notwithstanding the temporary restriction of use of any street under the powers of article 12 (temporary restriction of use of streets), Cadent will be at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as it would have been entitled to do immediately before such temporary alteration, diversion or restriction in respect of any apparatus which at the time of the closure or diversion was in that street. Protective works to buildings 160 (1) The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent (which must not be unreasonably withheld) 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), will pay compensation to Cadent for any loss sustained by it. (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 will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof must shall 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. Acquisition of land 161 (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 from Cadent any interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of Cadent otherwise than by agreement (such agreement not to be unreasonably withheld). (2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance 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 and/or other legal or land interest of Cadent and/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 and/or secure the consent to 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 and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule will prevail. (4) Any agreement or consent granted by Cadent under paragraph 163 or any other paragraph of this Part of this Schedule, will be taken to constitute agreement under sub-paragraph (1). (5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and/or 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 162 do not apply, the undertaker must, unless Cadent agrees otherwise— (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. Removal of apparatus 162 (1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 161, 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 or interfered with until alternative apparatus has been constructed, is in operation, and the facilities and rights 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 reasonable satisfaction (taking into account paragraph 163(1)) 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) (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 will 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 or settled, and subject to the prior grant to Cadent of such facilities and rights as are referred to in sub-paragraph (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. Facilities and rights for alternative apparatus 163 (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 sub-paragraph (1) 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 (in Cadent’s reasonable opinion) than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed, 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 169 (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. Retained apparatus: protection of Cadent 164 (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 specified works; (b) the level at which these are proposed to be constructed or renewed; (c) the manner of their construction or renewal including details of excavation, positioning of plant etc.; (d) the position of all apparatus; (e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and (f) any intended maintenance regimes. (3) The undertaker must not commence any specified works until Cadent has given written approval of the plan so submitted (and the ground monitoring scheme if required). (4) Any approval of Cadent given under sub-paragraph (3)— (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5); and (b) must not be unreasonably withheld or delayed. (5) For the purposes of sub-paragraph (4)(b) it will be deemed to be reasonable for any approval to be refused if Cadent considers that the specified works would— (a) cause material risk of damage to its apparatus; or (b) prevent access to its apparatus unless alternative means of access to such apparatus is provided in accordance with paragraph 168. (6) In relation to any work to which sub-paragraphs (1) and/or (2) apply Cadent may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against material risk of damage or for the purpose of providing or securing means of access to maintain or use the apparatus no less effectively than was possible before the specified works. (7) Works to which this paragraph applies must only be executed in accordance with— (a) the plan submitted under sub-paragraph (1) and (2) (and where relevant sub-paragraph (4)) (and ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and Cadent; and (b) all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation. (8) 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 satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement. (9) 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 156 to 158 and 161 to 163 apply as if the removal of the apparatus had been required by the undertaker under paragraph 162(2). (10) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan. (11) As soon as reasonably practicable after any ground subsidence event attributable to the specified works (including such an event attributable to its maintenance)— (a) the undertaker must implement an appropriate ground mitigation scheme; and (b) 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 line with paragraph 165. (12) The undertaker is not 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 and must comply with— (a) the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and (b) sub-paragraph (13) at all times. (13) At all times when carrying out any works authorised under the Order the undertaker must comply with the Cadent’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of Cadent Assets CAD//SP/SSW/22” and HSE’s “HS(~G)47 Avoiding Danger from underground services”. Expenses 165 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand all reasonable charges, costs and expenses anticipated or 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 and/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 162(3) if it elects to do so; and/or (ii) exercising any compulsory purchase powers under this 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; (g) any watching brief pursuant to paragraph 164(7). (2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal. (3) If in accordance with the provisions of this Part of this Schedule— (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was, 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 41 (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 the statutory undertaker in question by virtue of sub-paragraph (1) is to 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 will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and (b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined. (5) 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. Enactments and agreements 166 Except where this Part of this Schedule provides otherwise, 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. Co-operation 167 (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 162(2) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 164, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose. (2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, Cadent’s consent must not be unreasonably withheld or delayed. Access 168 If in consequence of any agreement reached in accordance with paragraph 161(1) or the powers conferred by this Order the access to any 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. Arbitration 169 Save for differences or disputes arising under paragraphs 162(2), 162(4), 163(1) and 164 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 41 (arbitration). PART 13 FOR THE PROTECTION OF EASTERN POWER NETWORKS Application 170 For the protection of EPN as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and EPN. Interpretation 171 In this Part of this Schedule— “alternative apparatus” means alternative apparatus adequate to enable EPN to fulfil its statutory functions in a manner no less efficient than previously; “apparatus” means electric lines and electrical plant (as defined in section 64(1) of the 1989 Act), belonging to or maintained by EPN; “EPN” means Eastern Power Networks plc (company number 02366906) whose registered office is at Newington House, 237 Southwark Bridge Road, London SE1 6NP; “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” 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 the works to be executed; and “specified works” means any of the authorised development which— will or may be situated within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 176(2) or otherwise; or may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 176(2) or otherwise. On street apparatus 172 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and EPN are regulated by the provisions of Part 3 of the 1991 Act. Apparatus in restricted streets and public rights of way 173 Regardless of the temporary alteration, diversion or restriction of use of any street or public right of way under the powers of article 11 (temporary closure of public rights of way) and article 12 (temporary restrictions of use of streets), EPN is at liberty at all times to take all necessary access across any such restricted, altered or diverted street or public right of way and to execute and do all such works and things in, upon or under any such street or public right of way as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the restriction, alteration or diversion was in that street or public right of way. Protective works to buildings 174 The undertaker, in the case of the powers conferred by article 18 (protective works to buildings), must exercise those powers so as not to obstruct or render materially less convenient the access to any apparatus or the ability of EPN to perform its statutory duties (such agreement not to be unreasonably withheld or delayed). Acquisition of land 175 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. Removal of apparatus 176 (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 apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of EPN to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of EPN in accordance with sub-paragraphs (2) to (6). (2) If, for the purpose of executing any specified 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 EPN no less than 28 days’ 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 EPN reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to EPN the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance and use 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, EPN must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for EPN to use its powers of compulsory acquisition unless it elects to do so. (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 EPN and the undertaker or in default of agreement settled by arbitration in accordance with paragraph 184 (arbitration). (5) EPN must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with paragraph 184 (arbitration), and after the grant to EPN of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule. (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to EPN that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by EPN, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of EPN. Facilities and rights for alternative apparatus 177 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to EPN necessary facilities and rights in land for the construction and maintenance of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms as may be agreed between the undertaker and EPN and must be no less favourable on the whole to EPN than the facilities and rights enjoyed by it in respect of the apparatus to be removed, unless otherwise agreed by EPN, such agreement not to be unreasonably withheld or delayed. (2) If the facilities and rights to be afforded by the undertaker and agreed with EPN under sub‑paragraph (1) 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 EPN than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the matter may be referred to arbitration in accordance with paragraph 184 (arbitration) and the arbitrator must make such provision for the payment of compensation by the undertaker to EPN as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. Retained apparatus 178 (1) Not less than 56 days before the commencement of any specified works, the undertaker must submit to EPN a plan of the works to be executed. (2) The plan to be submitted to EPN under sub-paragraph (1) must include a method statement and describe— (a) the exact position of the works; (b) the level at which the works are proposed to be constructed or renewed; (c) the manner of the construction or renewal of the works; (d) the position of all apparatus; and (e) by way of detailed drawings, every alteration proposed to be made to such apparatus. (3) The undertaker must not commence any specified works until EPN has given written approval of the plan and works so submitted. (4) Any approval of EPN given under sub-paragraph (3)— (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5); and (b) must not be unreasonably withheld or delayed. (5) EPN may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its 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) Specified works must be executed 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 (5) by EPN for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and EPN will be entitled to watch and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation. (7) Any requirements made by EPN under sub-paragraph (5) must be made within a period of 28 days beginning with the date on which the plan is submitted to it. (8) If EPN in accordance with sub-paragraph (5) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 172 to 174 and 177 to 17979 apply as if the removal of the apparatus had been required by the undertaker under paragraph 176(2). (9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any specified 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. (10) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to EPN 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 (6) in so far as is reasonably practicable in the circumstances. (11) In sub-paragraph (10), works that are carried out “in a case of emergency” means such works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property. Expenses and costs 179 (1) Subject to the following provisions of this paragraph, the undertaker must repay to EPN all expenses reasonably and properly incurred or to be incurred by EPN in, or in connection with— (a) the inspection, removal, alteration, relaying, replacing or protection of any apparatus or the construction of any alternative apparatus which may be required in consequence of the execution of any specified works; (b) the acquisition of facilities and rights or exercise of statutory powers for any apparatus or alternative apparatus in consequence of the operation of any of these provisions; (c) the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus, in consequence of the exercise of any power conferred by this Order affecting EPN’s apparatus; (d) the survey of any land, apparatus or works, the superintendence and monitoring of works and the installation or removal of any temporary works reasonably necessary in consequence of the exercise of any power conferred by this Order affecting EPN’s apparatus; and (e) any other work or thing rendered reasonably necessary in consequence of the exercise of any power conferred by this Order affecting EPN’s apparatus. (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 paragraph 184 (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 EPN 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 must 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 must be treated as if it also had been agreed or had been so determined. (5) Any amount which apart from this sub-paragraph would be payable to EPN in respect of works by virtue of sub-paragraph (1), 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 EPN any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit. 180 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any specified 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 EPN, or there is any interruption in any service provided, or in the supply of any goods, by EPN, the undertaker must— (a) bear and pay the cost reasonably and properly incurred by EPN in making good such damage or restoring the supply; and (b) indemnify EPN against any other losses, expenses, demands, proceedings, damages, claims, penalty or costs properly incurred by or recovered from EPN, by reason or in consequence of any such damage or interruption or EPN becoming liable to any third party as aforesaid other than arising from any default of EPN. (2) The fact that any act or thing may have been done by EPN on behalf of the undertaker or in accordance with a plan approved by EPN or in accordance with any requirement of EPN or under its supervision will not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1), unless EPN 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 agreed by EPN in accordance with paragraph 176(4) and paragraph 178(3). (3) Nothing in sub-paragraph (1) will impose 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 EPN, its officers, servants, contractors or agents; (b) any part of the specified works carried out by EPN in the exercise of any functions conferred by this Order pursuant to a transfer or grant under article 5 (benefit of the Order); or (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) arising from any such damage or interruption, which is not reasonably foreseeable. (4) EPN must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must be made without the consent of the undertaker and, if such consent is withheld, the undertaker will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand. (5) EPN must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds. (6) EPN must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies and if reasonably requested to do so by the undertaker EPN must provide an explanation of how the claim has been minimised. Enactments and agreements 181 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and EPN in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. Cooperation 182 (1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or EPN requires the removal of apparatus under paragraph 176(2) or EPN makes requirements for the protection or alteration of apparatus under paragraph 178(4), 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 EPN’s undertaking and EPN must use its best endeavours to co-operate with the undertaker for that purpose. (2) For the avoidance of doubt whenever EPN’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed. Access 183 If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed the undertaker must provide such alternative means of access to that apparatus as will enable EPN to maintain or use the apparatus no less effectively than was possible before the obstruction. Arbitration 184 Any difference or dispute arising between the undertaker and EPN under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and EPN, be determined by arbitration in accordance with article 41 (arbitration). PART 14 FOR THE PROTECTION OF THE PORT OF LONDON AUTHORITY 185 In this part— “Area of Interest” means any part of those areas shown shaded in orange, pink, green and blue on the Deep Water Route Cable Installation Area (Future Dredging Depths) Plan; “cable specification and installation plan” means the cable specification and installation plan to be approved under condition 22(1)(h) of the deemed marine licence for the transmission assets in Schedule 9; “construction” includes execution, placing, altering, replacing, relaying, removal, renewal works of maintenance and decommissioning, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation, and “construct” and “constructed” are to be construed accordingly; “commencement” for the purpose of this Part 14 of Schedule 14 means the first carrying out of any authorised development and survey and monitoring activities; “Deep Water Routes” mean the Sunk and Trinity deep water routes and the Sunk Pilotage Area; “installation” has the same meaning as construction and ‘installed’ is to be construed accordingly; “operation and maintenance plan” means the operation and maintenance plan to be approved under condition 12(4) of the deemed marine licence for the transmission assets in Schedule 9; “maintain” has the same meaning as in Article 2 save that it includes monitoring within the Area of Interest and maintenance shall be construed accordingly; “navigation and installation plan” means the navigation and installation plan to be approved under condition 22(1)(n) of the deemed marine licence for the transmission assets in Schedule 9; “sediment disposal management plan” means the sediment disposal management plan to be approved under condition 22(1)(o) of the deemed marine licence for the transmission assets in Schedule 9;” “specified work” means Work No. 3 and any other part of the offshore works forming part of the authorised development (including associated development and ancillary works and which for this purpose includes the maintenance and decommissioning of any part of the authorised development); and “PLA” means Port of London Authority. Application 186 The following provisions, unless otherwise agreed in writing between the undertaker and the PLA, have effect, for the protection of the PLA in relation to the construction, operation and maintenance of any specified work. Approvals and notice 187 (1) The undertaker will obtain the approval in writing of the PLA on— (a) any cable specification and installation plan (in so far as that plan relates to any specified work within or which may affect the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 22(1) of the deemed marine licence for the transmission assets in Schedule 9 and any revisions arising from such application; (b) any navigation and installation plan (in so far as that plan relates to any specified work within or which may affect the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 22(1) of the deemed marine licence for the transmission assets in Schedule 9 and any revisions arising from such application; (c) any sediment disposal management plan (in so far as that plan relates to any specified work within or which may affect the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 22(1) of the deemed marine licence for the transmission assets in Schedule 9 and any revisions arising from such application; and (d) any operation and maintenance plan (in so far as that plan relates to any specified work within or which may affect the Area of Interest) before any application for approval of that plan may be submitted by the undertaker in compliance with condition 12(4) of the deemed marine licence for the transmission assets in Schedule 9 and any revisions arising from such application. (2) The undertaker will consult the PLA on the proposed activities and programme for any pre-construction monitoring, construction monitoring, post construction monitoring and related reporting within the Area of Interest no less than 20 business days before such survey work is programmed to commence. The undertaker must have regard to any request made by the PLA for reasonable amendment to the proposed activities or programme, which request must be made to the undertaker within five business days of receipt of the details of the proposed activities and programme. (3) The undertaker must notify the PLA of the final planned programme for any pre-construction monitoring, construction monitoring, and post construction monitoring within the Area of Interest no less than five business days before such survey work is programmed to begin. (4) The undertaker will consult the PLA on any application for marine licensing for the clearance of unexploded ordnance within or which may affect the Area of Interest before such applications are submitted to the MMO. The undertaker must have regard to any request made by the PLA for reasonable amendment to the proposed application, which request must be made to the undertaker within 10 business days of receipt of the details of the proposed application. (5) The undertaker must notify the PLA of the final programme for any clearance of unexploded ordnance to be undertaken within, or which may affect, the Area of Interest no less than 20 business days before such disposal is programmed to begin. (6) The undertaker will consult the PLA on the activities and programme for any specified work to be undertaken under this Order which is not covered by the cable specification and installation plan and which is within or may affect the Area of Interest no less than 20 business days before such specified work is programmed to commence. The undertaker must have regard to any request made by the PLA for reasonable amendment to the activities or programme. (7) The undertaker must notify the PLA of the final method statement and programme for any specified work to be undertaken under this Order which is not covered by the cable specification and installation plan and which is within or may affect the Area of Interest no less than five business days before such work is programmed to begin. Cable Specification and Installation Plan 188 The cable specification and installation plan referred to in paragraph 187 must be informed by a cable burial risk assessment for Work No. 3 to include— (a) in so far as it applies to the Deep Water Routes demonstrate compliance with requirement 2(3) that any part of Work No. 3, any associated development or ancillary works located within the Area of Interest as shown shaded yellow on the Deep Water Route Cable Installation Area (Future Dredging depths) plan must be installed at a level which would not preclude or impede the dredging of those parts of the Deep Water Routes— (i) shown shaded in orange and labelled Sunk A – Sunk DW Buffer, to a level of 22 metres below Chart Datum; (ii) shown shaded in pink and labelled Trinty – Trinity DW Buffer, to a level of 22 metres below Chart Datum; (iii) shown shaded in green and labelled Sunk B – Sunk DW Buffer, to a level of 19 metres below Chart Datum; and (iv) shown shaded in blue and labelled Sunk Pilotage Area – Sunk Pilot Diamond Buffer, to a level of 22 metres below Chart Datum; (b) the proposed cable installation methods and measures for management of construction risks; (c) additional cable burial depths required or any other forms of cable protection proposed including type, volume and locations; (d) during construction of the cables and cable protection in the Area of Interest arrangements for the consultation of the PLA in a timely manner, on such matters regarding those works as the PLA may reasonably request including arrangements for providing the PLA with a point of contact for continuing liaison and co-ordination throughout the construction of these works; (e) the proposed programme of work for cable installation and arrangements for notification of any changes to the programme to the PLA; (f) the programme and methodologies for monitoring and the arrangements for the results of these surveys or other construction evidence being made available to the PLA within 10 business days of the undertaker receiving reports of the survey results; together with methods and timescales to rectify any issues which may compromise the level referred to requirement 2(3) or evidence to demonstrate compliance with the depths referred to in requirement 2(3); (g) methods and timescales to rectify any issues which may compromise the depth referred to in requirement 2(3); (h) a requirement for a process (subject to Condition 39 Remediation, Schedule 9) and timescales (both the undertaker and the PLA acting reasonably) for cable re-installation should the level of the cable be such that the under keel clearance specified in Outline CSIP cannot be achieved over the lifetime of the authorised development. Monitoring 189 If following the results of any geophysical surveys carried out using multi-beam echo sounder survey , it is confirmed that cable exposure has occurred within the Area of Interest, the undertaker will notify the PLA as soon as reasonably practicable and in any event no later than 2 business days after the undertaker confirms any exposure has occurred. Provision of as built details 190 As soon as reasonably practicable following the completion of the installation of cables forming Work No. 3 and after any maintenance of the same, the undertaker must provide (on a strictly confidential basis) to the PLA as built drawings of Work No. 3 in a form and scale to be agreed between the undertaker and the PLA to show the position, depth and any cable protection installed as part of Work No. 3 in relation to the Deep Water Routes provided that the PLA must not disclose (without the written consent of the undertaker) any information that has been provided by the undertaker to the PLA on a confidential basis or which is marked as commercially sensitive and must hold such information on a confidential basis only, except that the PLA may provide the information to contractors and agents acting on its behalf (including but not limited to contractors engaged to carry out dredging operations) provided that such agents and contractors are required by the PLA to treat such information as confidential. Indemnity 191 (1) The undertaker will pay to the PLA its proper and reasonable legal costs, professional fees and disbursements incurred in connection with reviewing the details submitted to the PLA pursuant to this Part 14 of Schedule 14. (2) The undertaker is responsible for and must make good to the PLA all financial costs, charges, damages losses or expenses which may be incurred reasonably or suffered by the PLA by reason of— (a) the construction or operation of Work no. 3, any specified work or its failure or a failure to adhere to the requirements of this Part 14 of Schedule 14; and (b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged on the construction or operation of a specified work or Work no. 3 or with any failure, and the undertaker must indemnify the PLA from and against all claims and demands arising out of or in connection with a specified work, Work no. 3 or any such failure, act or omission or any failure to adhere to the requirements of this Part 14 of Schedule 14. (3) The fact that any act or thing may have been done— (a) by the PLA 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 PLA, or in a manner approved by the PLA, 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 PLA or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph. (4) The PLA must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraphs (1) and (2) and no settlement or compromise of it is to be made without the prior consent of the undertaker. Transfer of the benefit 192 The undertaker must within 7 days after the completion of any sale, agreement or other transaction under article 5 (Benefit of the Order) in relation to which any powers, rights and obligations of the undertaker are transferred to another party, notify the PLA in writing, and the notice must include particulars of the other party to the transaction under article 5, the general nature of the transaction and details of the extent, nature and scope of the works or functions sold, transferred or otherwise dealt with. Disputes 193 Any dispute arising between the undertaker and the PLA under this part of this Schedule is to be escalated in the first instance to senior representatives from the PLA and the undertaker, and the PLA and undertaker must seek to resolve the dispute through a meeting between the parties promptly and in any event within 10 business days. Where following escalation the dispute is not resolved, it is to be determined by arbitration as provided in article 41 (arbitration) of this Order. PART 15 FOR THE PROTECTION OF LONDON GATEWAY PORT LIMITED Interpretation 194 In this part— “the cable specification and installation plan” means the cable specification and installation plan to be approved under condition 22(1)(h) of the deemed marine licence for the transmission assets in Schedule 9 (deemed marine licence under the 2009 Act – transmission assets); “London Gateway” means London Gateway Port Limited, Company No. 04341592 as harbour authority for London Gateway Port, pursuant to the London Gateway HEO and includes and person to whom the right to operate the whole of the undertaking is disposed under article 46 of the London Gateway HEO; “London Gateway HEO” means the London Gateway Port Harbour Empowerment Order 2008; “the navigation and installation plan” means the sediment disposal management plan to be approved under condition 22(1)(n) of the deemed marine licence for the transmission assets in Schedule 9 (deemed marine licence under the 2009 Act – transmission assets); “the relevant plans” means the cable specification and installation plan, the navigation and installation plan and the sediment disposal management plan; and “the sediment disposal management plan” means the sediment disposal management plan to be approved under condition 22(1)(o) of the deemed marine licence for the transmission assets in Schedule 9 (deemed marine licence under the 2009 Act – transmission assets). Application 195 The following provisions, unless otherwise agreed in writing between the undertaker and the London Gateway, have effect. Approvals 196 (1) The undertaker will obtain the approval in writing of London Gateway of each of the relevant plans (in so far as those plans relate to any area or areas of the authorised development which are within the limits of deviation for dredging of London Gateway as defined by the London Gateway HEO) before any application for approval of those plans is submitted by the undertaker in compliance with condition 22 of the deemed marine licence for the transmission assets in Schedule 9 (deemed marine licence under the 2009 Act – transmission assets). (2) The draft cable specification and installation plan referred to in sub-paragraph (1) must be in accordance with requirement 2(3) and set out for Work No. 3— (a) the proposed cable burial depth(s); (b) the proposed cable burial methods; (c) any cable protection proposed including type, volume and anticipated locations; (d) the proposed programme of work for cable burial; and (e) details of how any impacts on shipping to and from London Gateway Port will be minimised so far as reasonably practicable during the carrying out of the works covered by the draft cable specification and installation plan. Approvals and refusals 197 (1) London Gateway must issue any approval or refusal of a draft plan submitted to it in accordance with paragraph 196 (1) within 28 days of the date of submission of that draft or of the date of the provision by the undertaker to London Gateway of any further information that London Gateway reasonably requests, unless any other period is agreed with the undertaker. (2) All decisions of London Gateway under these provisions must be made acting reasonably. (3) All decisions of London Gateway under these provisions must be issued in writing and the undertaker may provide a copy of any such decision to the Marine Management Organisation or any other regulatory body. (4) Where London Gateway refuses to approve a draft plan it must provide reasons for refusal in writing to the undertaker at the same time as it issues the refusal. (5) Where the draft plan is refused, the undertaker must consider the reasons for refusal and redraft the draft plan accordingly, before re-submitting it to London Gateway. The provisions of sub-paragraphs (1) to (4) will then apply to that re-submitted plan. (6) Where no decision is issued within the 28 day period set out in sub-paragraph (1), the draft plan submitted will be deemed to be refused by London Gateway. (7) Any difference or dispute arising between the undertaker and London Gateway must, unless otherwise agreed in writing between the undertaker and London Gateway, be determined by arbitration in accordance with article 41 (arbitration) of this Order. The undertaker may not refer any dispute in relation to the refusal of a draft plan to arbitration under article 41 until it has redrafted and resubmitted the draft plan in accordance with sub-paragraph (5) above at least once. Notification of transfer of the benefit 198 The undertaker must within 28 days of any transfer or grant of any benefit under paragraph (2) or (3) of article 5 (benefit of the order) of this Order notify London Gateway, and such notification must include particulars of the transferee or lessee (as applicable), the general nature of the agreement pursuant to which the transfer and grant has been made, and details of the extent, nature and scope of the works or functions sold or otherwise transferred or granted. Provision of as built details 199 As soon as reasonably practicable following the completion of the installation of cables forming Work No. 3, and after any maintenance of the same pursuant to condition 13 of the deemed marine licence for transmission assets in Schedule 9 (deemed marine licence under the 2009 Act – transmission assets), the undertaker must provide (on a strictly confidential basis) to London Gateway as built drawings of Work No. 3 in a form and scale to be agreed between the undertaker and London Gateway to show the position, depth and any cable protection installed as part of Work No. 3 in relation to the Areas of Interest provided that London Gateway must not disclose (without the written consent of the undertaker) any information that has been provided by the undertaker to London Gateway on a confidential basis or which is marked as commercially sensitive and must hold such information on a confidential basis only, except that London Gateway may provide the information to contractors and agents acting on its behalf (including but not limited to contractors engaged to carry out dredging operations) provided that such agents and contractors are required by London Gateway to treat such information as confidential. Protection of London Gateway powers 200 Nothing in this Order affects or restricts the exercise by London Gateway of any powers under the London Gateway HEO nor imposes any liability on London Gateway in respect of any loss or damage that may be caused to any part of the authorised development by virtue of the exercise of any powers under the London Gateway HEO.