SCHEDULE 11 PROTECTIVE PROVISIONS
Article 38
PART 1 FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS
Application
1 For the protection of the affected 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) the following provisions have effect, unless otherwise agreed in writing between the undertaker and the affected undertaker concerned.
Interpretation
2 In this Part of this Schedule—
“affected undertaker” means—
any licence holder within the meaning of Part 1 (electricity supply) of the 1989 Act;
a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986;
a water undertaker within the meaning of the Water Industry Act 1991; or
a sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,
for the area of the authorised development but, for the avoidance of doubt, does not include the undertakers specified in Parts 3 to 15 of this Schedule, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained;
“alternative apparatus” means alternative apparatus adequate to enable the affected undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electric plant (as defined in the 1989 Act), belonging to or maintained by that affected undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;
in the case of a water undertaker—
mains, pipes or other apparatus belonging to or maintained by that affected undertaker for the purposes of water supply; and
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 future date) of the Water Industry Act 1991;
in the case of a sewerage undertaker—
any drain or works vested in the affected 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 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; and
“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.
Precedence of the 1991 Act in respect of apparatus in the streets
3 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (water supply) of the Water Industry Act 1991.
Apparatus in temporarily closed streets
4 Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 16 (temporary prohibition or restriction of use of streets and public rights of way), an affected undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.
Acquisition of land
5 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
6 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the affected undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this part of this Schedule, and any right of an affected undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the affected undertaker in question in accordance with sub- paragraphs (2) to (7).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question 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 an affected undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the affected 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 (1), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the affected 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 of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 43 (arbitration).
(5) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 43 (arbitration) and after the grant to the affected undertaker of any such facilities and rights as are referred to in sub-paragraph (1) 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 the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the affected undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected 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
7 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected 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 affected undertaker in question or in default of agreement settled by arbitration in accordance with article 43 (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 the affected 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 affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
8 (1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 6(1) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(1), the undertaker must submit to the affected 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 affected undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the affected undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by an affected undertaker 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) are submitted to it.
(4) If an affected 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, paragraphs 1 to 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(1).
(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 it must give to the affected undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
Expenses and costs
9 (1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected 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 6(1).
(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,
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 43 (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 affected 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 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 cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be 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 an affected 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 affected undertaker 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.
10 (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 6(1), 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 an affected undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that affected undertaker in making good such damage or restoring the supply; and
(b) provide reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected 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 an affected undertaker, its officers, servants, contractors or agents.
(3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Enactments and agreements
11 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an affected undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 2 FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS
12 For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.
13 In this Part of this Schedule—
“the code rights” has the same meaning as in the Paragraph 3 of the electronic communications code;
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 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 (Application of the electronic communications code) of the 2003 Act; and
an electronic communications network which the undertaker 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 (Application of the electronic communications code) of the 2003 Act;
“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and
“operator” means the operator of an electronic communications code network.
14 The exercise of the powers conferred by this Order is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
15 (1) Subject to sub-paragraph (2), if as a result of the authorised development or its construction, or of any subsidence resulting from any of 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 reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other reasonable expenses, loss, damages, penalty or costs incurred by it, 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.
16 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.
17 Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 43 (arbitration).
18 This Part of this Schedule does not apply to—
(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or
(b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.
19 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made.
PART 3 FOR THE PROTECTION OF ANGLIAN WATER SERVICES LIMITED
Application
20 For the protection of Anglian Water the following provisions have effect, unless otherwise agreed in writing between the undertaker and Anglian Water.
Interpretation
21 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, or any successor in its functions, and, only in respect of any matter relating to, or connected with, the Lincolnshire Reservoir Project, any entity granted an infrastructure provider project licence under the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 in relation to the Lincolnshire Reservoir Project;
“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 any apparatus under this definition 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 shall 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;
“Lincolnshire Reservoir Land” means the land which Anglian Water anticipates to be required for the construction, commissioning, operation and maintenance of the Lincolnshire Reservoir Project, as notified in writing by Anglian Water to the undertaker, which may be updated from time to time;
“Lincolnshire Reservoir Project” means the proposals being promoted by Anglian Water by way of an application for a development consent order, to construct, operate and maintain a reservoir exceeding 30 million cubic metres of water storage, together with associated development which is anticipated to include, but is not limited to, water transfer pipelines, abstraction facilities, pumping stations, treatment works, renewable energy generation, access roads, utility diversions, rail works, parking, wildlife and environmental areas, and recreation facilities on land south-east of Sleaford, Lincolnshire; and
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed.
On street apparatus
22 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 stopped up streets
23 (1) Where any street is stopped up under article 16 (temporary prohibition or restriction of use of streets and public rights of way), where Anglian Water has apparatus in the street or accessed by virtue of that street, it has the same powers and rights in respect of that apparatus as it enjoyed immediately before the temporary prohibition or restriction and the undertaker must grant to Anglian Water legal easements reasonably satisfactory to Anglian Water in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of Anglian Water to require the removal of that apparatus under paragraph 114 or the power of the undertaker to carry out works under paragraph 116.
(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 16 (temporary prohibition or restriction of use of streets and public rights of way), Anglian Water is at liberty at all times to take all necessary access across any such stopped up 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 stopping up or diversion was in that highway.
Protective works to buildings
24 The undertaker, in the case of the powers conferred by article 21 (protective works to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.
Acquisition of land
25 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
26 (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 115.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Anglian Water 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order 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 the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed Anglian Water must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 43 (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 43 (arbitration), and after the grant to Anglian Water of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if Anglian Water gives notice in writing to the undertaker that it desires the undertaker to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker or to the extent that Anglian Water fails to proceed with that work in accordance with sub-paragraph (5) or the undertaker and Anglian Water otherwise agree, that work, instead of being executed by Anglian Water, must be executed by the undertaker without unnecessary delay under the superintendence, if required, 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 shall 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 shall, before taking or requiring any further step in such substitution works, use reasonable 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.
(9) In respect of apparatus constructed or being constructed by Anglian Water for the purposes of the Lincolnshire Reservoir Project—
(a) this paragraph applies whether or not such apparatus is operational;
(b) “best endeavours” in sub-paragraph (3) shall be read as “reasonable endeavours” and
(c) “28 days” in sub-paragraphs (2) and (7) shall be read as “42 days”.
Facilities and rights for alternative apparatus
27 (1) Where, in accordance with the provisions of this Part of this Schedule, 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 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 43 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to Anglian Water than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to Anglian Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
(3) Such facilities and rights as are set out in this paragraph are deemed to include any statutory permits granted to the undertaker in respect of the apparatus in question, whether under the Environmental Permitting (England and Wales) Regulations 2016 or other legislation.
Retained apparatus
28 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus (or any means of access to it) the removal of which has not been required by the undertaker under paragraph 114(2), the undertaker must submit to Anglian Water a plan of the works to be executed.
(2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Anglian Water is entitled to watch and inspect the execution of those works.
(3) Any requirements made by Anglian Water under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(4) If Anglian Water in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 20 to 22 and 25 to 27 apply as if the removal of the apparatus had been required by the undertaker under paragraph 114(2).
(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(6) The undertaker is not required to comply with sub-paragraph (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 best endeavours to keep to a minimum the impact of those emergency works on Anglian Water’s apparatus, the operation of its water and sewerage network and end-users of its services.
(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 and before the submission of the plan under sub-paragraph (1) where the diameter of the pipe exceeds 400 millimetres.
Expenses and costs
29 (1) Subject to the following provisions of this paragraph, the undertaker must repay to Anglian Water all expenses reasonably incurred by Anglian Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule.
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 43 (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.
30 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction or maintenance of any of the authorised development or of any such works referred to in paragraphs 112 or 114(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 such development or 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 the undertaker,
by reason or in consequence of any such damage or interruption.
(2) The fact that any act or thing may have been done by Anglian Water on behalf of the undertaker or in accordance with a plan approved by Anglian Water or in accordance with any requirement of Anglian Water or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Anglian Water fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the unlawful or unreasonable act, neglect or default of Anglian Water, its officers, servants, contractors or agents.
(4) Anglian Water must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made, without the consent of the undertaker (such consent not to be unreasonably withheld or delayed) who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(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
31 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 114(2) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph 116, 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.
32 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 shall inform Anglian Water of the existence and location of the apparatus as soon as reasonably practicable.
33 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.
Interface with the Lincolnshire Reservoir Project
34 As regards the interface (including any potential interface) between the authorised development and the Lincolnshire Reservoir Project, the undertaker and Anglian Water agree to—
(a) work positively and collaboratively with each other to manage that interface, including having regard to the impact that each project’s design, construction and operation and maintenance may have on the other party’s project;
(b) engage proactively with the other party’s project, including providing timely responses to any consultations, public examinations, or reasonable requests for informal engagement concerning that interface; and
(c) use reasonable endeavours to agree the details of a cooperation framework in relation to the interface (pursuant to the outline construction environmental management plan and outline decommissioning environmental management plan) within 56 days of the undertaker providing a draft cooperation framework to Anglian Water, and for the purposes of agreeing the cooperation framework pursuant to the outline construction environmental management plan the undertaker will provide the draft cooperation agreement framework to Anglian Water within 12 months of the date this Order comes into force.
35 The undertaker will work with Anglian Water during the design and construction of the authorised development to ensure that where the two projects interface there is no impediment to any works associated with or required for the Lincolnshire Reservoir Project crossing under the cabling infrastructure of the authorised development in a timely and cost-effective manner. Without prejudice to the generality of the previous sentence, the undertaker must only construct Work No. 4 to a maximum depth of 10 metres below ground level within the area shown edged blue on the plans appended to the outline construction environmental management plan (drawing title: Extend of Beacon Fen Energy Park Limited Order Boundary and Anglian Water Restriction), unless otherwise agreed with Anglian Water.
36 Before finalising the detailed design of any part of the authorised development which is within or within 500m of the Lincolnshire Reservoir Land, the undertaker will provide Anglian Water with the opportunity (within a period of at least 42 days) to review and comment on the proposed detailed design of such part of the authorised development, and will consider any comments reasonably made by Anglian Water where this would influence the consenting, design, construction, operation or maintenance of the Lincolnshire Reservoir Project.
37 Before finalising the detailed design of any part of the Lincolnshire Reservoir Project which is within or within 500m of the Order Limits, Anglian Water will provide the undertaker with the opportunity (within a period of at least 42 days) to review and comment on the proposed detailed design of any such part of the Lincolnshire Reservoir Project, and will consider any comments reasonably made by the undertaker where this would influence the construction, design or operation of the authorised development.
38 The undertaker will not unreasonably withhold consent for Anglian Waterto enter onto land within the undertaker’s control to undertake pre-consent surveys and site investigations as reasonably necessary for the preparation of the Lincolnshire Reservoir Project development consent order application, subject to the undertaker being given—
(a) at least 14 days written notice of any non-intrusive surveys;
(b) at least 28 days written notice of any intrusive surveys,
and Anglian Water will comply with any conditions reasonably imposed by the undertaker in granting such consent and will reimburse the undertaker any costs reasonably incurred by it in facilitating the undertaking of the surveys.
39 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 4 FOR THE PROTECTION OF NATIONAL GAS TRANSMISSION PLC AS GAS UNDERTAKER
Application
40 (1) For the protection of National Gas as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Gas.
(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Gas, where the benefit of this Order is transferred or granted to another person under article 7 (consent to transfer benefit of the Order)—
(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Gas and the transferee or grantee (as the case may be); and
(b) written notice of the transfer or grant must be given to National Gas on or before the date of that transfer or grant.
(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Gas under article 7 (consent to transfer benefit of the Order) (but without prejudice to paragraph 138(3)(b).
Interpretation
41 In this Part of this Schedule—
“acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: (i) “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and “A3” if the rating is assigned by Moody’s Investors Services Inc.;
“acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of indemnity of not less than £50,000,000.00 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance must be maintained (a) during the construction period of the authorised works; and (b) after the construction period of the authorised works in respect of any use and maintenance of the authorised development by or on behalf of the undertaker which constitute specified works and arranged with an insurer whose security/credit rating meets the same requirements as an “acceptable credit provider”, such insurance must include (without limitation)—
a waiver of subrogation and an indemnity to principal clause in favour of National Gas;
pollution liability for third party property damage and third party bodily damage arising from any pollution/contamination event with a (sub)limit of indemnity of not less than £10,000,000.00 (ten million pounds) per occurrence or series of occurrences arising out of one event or £20,000,000.00 (twenty million pounds) in aggregate;
“acceptable security” means either—
a parent company guarantee from a parent company in favour of National Gas to cover the undertaker’s liability to National Gas to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Gas and where required by National Gas, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); or
a bank bond or letter of credit from an acceptable credit provider in favour of National Gas to cover the undertaker’s liability to National Gas for an amount of not less than £10,000,000.00 (ten million pounds) per asset per event up to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Gas);
“alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Gas to enable National Gas to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any mains, pipes or other apparatus belonging to or maintained by National Gas for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Gas for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus—
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) of this 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 Part of this Schedule;
“commence” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by National Gas (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, requires the undertaker to submit for National Gas’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Gas: construct, use, repair, alter, inspect, renew or remove the apparatus;
“National Gas” means National Gas Transmission PLC (Company Number 02006000) whose registered office is at National Grid House Warwick Technology Park, Gallows Hill, Warwick, CV34 6DA or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;
“Network Code” means the network code prepared by National Gas pursuant to Standard Special Condition A11(3) of its Gas Transporter’s Licence, which incorporates the Uniform Network Code, as defined in Standard Special Condition A11(6) of National Gas’s Gas Transporters Licence, as both documents are amended from time to time;
“Network Code Claims” means any claim made against National Gas by any person or loss suffered by National Gas under the Network Code arising out of or in connection with any failure by National Gas to make gas available for off take at, or a failure to accept gas tendered for delivery from, any entry point to or exit point from the gas national transmission system as a result of the authorised works or any costs and/or expenses incurred by National Gas as a result of or in connection with, it taking action (including purchase or buy back of capacity) for the purpose of managing constraint or potential constraint on the gas national transmission system which may arise as a result of the authorised works;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“parent company” means a parent company of the undertaker acceptable to and approved by National Grid acting reasonably;
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 134(2) or otherwise; and/or
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 134(2) or otherwise; and/or
includes any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 (National Gas’s policies for safe working in proximity to gas apparatus) “Specification for safe working in the vicinity of National Gas Transmission high pressure gas pipelines and associated installation – requirements for third parties T/SP/SSW/22 (March 2024).”
On Street Apparatus
42 Except for paragraphs 131 (apparatus of National Gas in stopped up streets), 136 (retained apparatus: protection) and 138 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of National Gas, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Gas are regulated by the provisions of Part 3 of the 1991 Act.
Apparatus of National Gas in stopped up streets
43 (1) Where any street is stopped up under article 16 (temporary prohibition or restriction of use of streets and public rights of way), if National Gas has any apparatus in the street or accessed via that street National Gas has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Gas, or procure the granting to National Gas of, legal easements reasonably satisfactory to National Gas in respect of such apparatus and access to it prior to the stopping up of any such street or highway but nothing in this paragraph affects any right of the undertaker or National Gas to require the removal of that apparatus under paragraph 134 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 136.
(2) Notwithstanding the temporary stopping up or diversion of any street under the powers of article 16 (temporary prohibition or restriction of use of streets and public rights of way), National Gas is at liberty at all times to take all necessary access across any such stopped up street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that street.
Protective works to buildings
44 The undertaker, in the case of the powers conferred by article 21 (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 National Gas.
Acquisition of land
45 (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
(a) appropriate or acquire or take temporary possession of any land or apparatus; or
(b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Gas,
(c) otherwise than by agreement.
(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Gas and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Gas or affect the provisions of any enactment or agreement regulating the relations between National Gas and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Gas reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Gas and the undertaker acting reasonably and which must be no less favourable on the whole to National Gas unless otherwise agreed by National Gas, and it will be the responsibility of the undertaker to procure and secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) Save where otherwise agreed in writing between National Gas and the undertaker, the undertaker and National Gas agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Gas or other enactments relied upon by National Gas as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.
(4) Any agreement or consent granted by National Gas under paragraph 136 (retained apparatus: protection) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
Removal of apparatus
46 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Gas 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 National Gas in accordance with sub-paragraph (2) to (5).
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Gas advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Gas reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to National Gas to its satisfaction (taking into account paragraph 47(1) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and
(b) subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Gas may in its sole discretion, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to assist the undertaker 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 National Gas to use its compulsory purchase powers to this end unless it elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Gas and the undertaker.
(5) National Gas must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Gas 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.
Facilities and rights for alternative apparatus
47 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Gas facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Gas and must be no less favourable on the whole to National Gas than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Gas.
(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 less favourable on the whole to National Gas 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 142 (Arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Gas as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection
48 (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Gas a plan and, if reasonably required by National Gas, a ground monitoring scheme in respect of those works.
(2) In relation to specified works the plan to be submitted to National Gas under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant etc;
(d) the position of all apparatus;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and
(f) any intended maintenance regimes.
(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until National Gas has given written approval of the plan so submitted.
(4) Any approval of National Gas required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (6); and,
(b) must not be unreasonably withheld.
(5) In relation to any work to which sub-paragraphs (1) and/or (2) apply, National Gas 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 for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) In relation to any work to which sub-paragraphs (1) or (2) apply, such works must be executed in accordance with—
(a) the plan, submitted under sub-paragraph (1) or as relevant sub paragraph (5), as approved or as amended from time to time by agreement between the undertaker and National Gas; and
(b) such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Gas for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Gas will be entitled to watch and inspect the execution of those works.
(7) Where, under sub-paragraph (6), National Gas 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 Gas’s satisfaction prior to the commencement of any specified works for which protective works are required and National Gas must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(8) If National Gas in accordance with sub-paragraphs (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 128 to 130 and 133 to 135 apply as if the removal of the apparatus had been required by the undertaker under paragraph 134(2) (removal of apparatus).
(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.
(10) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Gas notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances and comply with sub paragraph (11) at all times;
(11) At all times when carrying out any works authorised under the Order the undertaker must comply with National Gas’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Gas Transmission high pressure gas pipelines and associated installation – requirements for third parties T/SP/SSW/22” (March 2024) and HSE’s “HSG47 (Third Edition) Avoiding Danger from underground services” (2014).
(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker will implement an appropriate ground mitigation scheme save that National Gas 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 137.
Expenses
49 (1) Save where otherwise agreed in writing between National Gas and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Gas within 30 days of receipt of an itemised invoice or claim from National Gas all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Gas in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by National Gas in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Gas as a consequence of National Gas—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 134(3); or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Gas;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 142 (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 National Gas by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) Any amount which apart from this sub-paragraph would be payable to National Gas 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 National Gas 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.
Indemnity
50 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of National Gas, or there is any interruption in any service provided, or in the supply of any goods or energy, by National Gas, or National Gas becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand accompanied by an invoice or claim from National Gas the cost reasonably and properly incurred by National Gas in making good such damage or restoring the supply; and
(b) indemnify National Gas for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Gas, by reason or in consequence of any such damage or interruption or National Gas becoming liable to any third party and including Network Code Claims other than arising from any negligence or default of National Gas.
(2) The fact that any act or thing may have been done by National Gas on behalf of the undertaker or in accordance with a plan approved by National Gas or in accordance with any requirement of National Gas or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless National Gas fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of National Gas, its officers, servants, contractors or agents;
(b) any authorised works or any other works authorised by this Part of this Schedule carried out by National Gas 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 7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph (b) will be subject to the full terms of this Part of this Schedule including this paragraph 138; and
(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.
(4) National Gas 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 Gas 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 Gas 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 Gas’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 Gas’s control and if reasonably requested to do so by the undertaker National Gas must provide an explanation of how the claim has been minimised, where relevant.
(7) Not to commence construction (and not to permit the commencement of such construction) of the specified works on any land owned by National Gas or in respect of which National Gas has an easement or wayleave for its apparatus or any other interest or to carry out any works within 15 metres of National Gas’s apparatus until the following conditions are satisfied—
(a) unless and until National Gas is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has first provided the acceptable security (and provided evidence that it will maintain such acceptable security for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and National Gas has confirmed the same to the undertaker in writing; and
(b) unless and until National Gas is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to National Gas that it will maintain such acceptable insurance for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and National Gas has confirmed the same in writing to the undertaker.
(8) In the event that the undertaker fails to comply with 138(7) of this Part of this Schedule, nothing un this Part of this Schedule will prevent National Gas from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.
Enactments and agreements
51 Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Gas and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Gas 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
52 (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Gas requires the removal of apparatus under paragraph 134(2) or National Gas makes requirements for the protection or alteration of apparatus under paragraph 136 (retained apparatus: protection), 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 National Gas’s undertaking and National Gas must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever National Gas’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
53 If in consequence of the agreement reached in accordance with paragraph (1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Gas to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
54 Save for differences or disputes arising under paragraph 134(2), 134(4), 47(1) and 136(11) any difference or dispute arising between the undertaker and National Gas under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Gas, be determined by arbitration in accordance with article 43 (arbitration).
Notices
55 Notwithstanding article 41 (service of notices), any plans submitted to National Gas by the undertaker pursuant to paragraph 136 must be submitted to https://lsbud.co.uk/ or such other address as National Gas may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 5 FOR THE PROTECTION OF NATIONAL GRID VIKING LINK LIMITED
Application
56 (1) For the protection of Viking Link as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Viking Link.
(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and Viking Link, where the benefit of this Order is transferred or granted to another person under article 7 (consent to transfer benefit of the Order)—
(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between Viking Link and the transferee or grantee (as the case may be); and
(b) written notice of the transfer or grant must be given to Viking Link on or before the date of that transfer or grant.
(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to Viking Link or National Grid under article 7 (consent to transfer benefit of the Order) (but without prejudice to paragraph 154(3)(b)).
Interpretation
57 In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the satisfaction of Viking Link to enable Viking Link to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any electric lines or electrical plant as defined in section 64 of the 1989 Act belonging to or maintained by Viking Link together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of Viking Link for the purposes of the conveyance of electricity between Great Britain and Denmark and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) of this 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 Part of this Schedule;
“commence” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by Viking Link (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, requires the undertaker to submit for Viking Link’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Viking Link: construct, use, repair, inspect, renew or remove the apparatus of Viking Link;
“Viking Link” means National Grid Viking Link Limited (Company Number 09075537) whose registered office is at 1-3 Strand, London, UK WC2N 5EH or any successor as a licence holder within the meaning of Part 1 of the 1989 Act;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed; and
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
will or may be situated over, or within 15 metres measured in any direction of any apparatus; or
may in any way adversely affect any apparatus; and
On Street Apparatus
58 Except for paragraphs 147 (apparatus in stopped up streets); 152 (apparatus: protection), 153 (expenses) and 154 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of Viking Link, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Viking Link are regulated by the provisions of Part 3 of the 1991 Act.
Apparatus in stopped up streets
59 (1) Where any street is stopped up under article 16 (temporary prohibition or restriction of use of streets and public rights of way), if Viking Link has any apparatus in the street or accessed via that street Viking Link has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to Viking Link, or procure the granting to Viking Link of, legal easements reasonably satisfactory to Viking Link in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or Viking Link to require the removal of that apparatus under paragraph 150 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 152 (apparatus: protection).
(2) Notwithstanding the temporary stopping up or diversion of any street under the powers of article 16 (temporary prohibition or restriction of use of streets and public rights of way), Viking Link is at liberty at all times to take all necessary access across any such stopped up street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that street.
Protective works to buildings
60 The undertaker, in the case of the powers conferred by article 21 (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 Viking Link.
Acquisition of land
61 (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—
(a) appropriate or acquire or take temporary possession of any land or apparatus of Viking Link; or
(b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of Viking Link,
otherwise than by agreement with Viking Link (such agreement not to be unreasonably withheld).
(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between Viking Link and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Viking Link or affect the provisions of any enactment or agreement regulating the relations between Viking Link and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Viking Link reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Viking Link and the undertaker acting reasonably and which must be no less favourable on the whole to Viking Link unless otherwise agreed by Viking Link, and it will be the responsibility of the undertaker to procure and secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) Save where otherwise agreed in writing between Viking Link and the undertaker the undertaker and Viking Link agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/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 Viking Link and/or other enactments relied upon by Viking Link as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.
(4) Any agreement or consent granted by Viking Link under paragraph 152 (apparatus: protection) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
Removal of apparatus
62 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Schedule and any right of Viking Link 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 Viking Link in accordance with sub-paragraphs (2) to (5).
(2) If, for the purpose of executing any works comprised in the authorised development 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 Viking Link advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Viking Link reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to Viking Link to its satisfaction (taking into account paragraph 63(1) (facilities and rights for alternative apparatus) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and
(b) subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, Viking Link may, in its sole discretion, 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 Schedule must be constructed in such manner and in such line or situation as may be agreed between Viking Link and the undertaker.
(5) Viking Link must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to Viking Link 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.
Facilities and rights for alternative apparatus
63 (1) Subject to sub-paragraph (2), where, in accordance with the provisions of this Schedule, the undertaker affords to or secures for Viking Link facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Viking Link and must be no less favourable on the whole to Viking Link than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by Viking Link.
(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 less favourable on the whole to Viking Link 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 158 (arbitration) of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Viking Link as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph, article 43 (arbitration) applies.
Apparatus: protection
64 (1) Not less than 56 days before the commencement of any specified works, the undertaker must submit to Viking Link a plan of the works to be executed and seek from Viking Link details of the underground extent of their electricity assets.
(2) In relation to specified works the plan to be submitted to Viking Link under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant;
(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 in respect of those works, if reasonably required by Viking Link.
(3) The undertaker must not commence any works to which sub-paragraph (2) applies until Viking Link has given written approval of the plan so submitted.
(4) Any approval of Viking Link required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and
(b) must not be unreasonably withheld.
(5) In relation to any work to which sub-paragraph (2) applies, Viking Link may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Specified works must be executed in accordance with—
(a) the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (5), as approved or as amended from time to time by agreement between the undertaker and Viking Link; and
(b) such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by Viking Link for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Viking Link will be entitled to watch and inspect the execution of those works.
(7) Where, under sub-paragraph (6), Viking Link requires any protective works to be carried out by itself or by the undertaker such protective works (whether of a temporary or permanent nature) inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Viking Link’s reasonable satisfaction prior to the commencement of any specified works for which protective works are required and Viking Link must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(8) 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.
(9) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Viking Link notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.
(10) If Viking Link in accordance with sub-paragraphs (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (1) to (3) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 150(2) (removal of apparatus).
Expenses
65 Subject to the following provisions of this paragraph, the undertaker must pay to Viking Link within 30 days of receipt of an itemised invoice or claim from Viking Link all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by Viking Link in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus which may be required in consequence of the execution of any authorised works including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by Viking Link in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by Viking Link as a consequence of Viking Link exercising any compulsory purchase powers in the Order transferred to or benefitting Viking Link;
(b) the approval of plans under this Part of this Schedule;
(c) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and
(d) 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.
Indemnity
66 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of Viking Link, or there is any interruption in any service provided, or in the supply of any goods, by Viking Link, the undertaker will—
(a) bear and pay on demand accompanied by an invoice or claim from Viking Link the cost reasonably and properly incurred by Viking Link in making good such damage or restoring the supply; and
(b) indemnify Viking Link for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Viking Link, by reason or in consequence of any such damage or interruption other than arising from any default of Viking Link
(2) The fact that any act or thing may have been done by Viking Link on behalf of the undertaker or in accordance with a plan approved by Viking Link or in accordance with any requirement of Viking Link or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Viking Link fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of Viking Link, its officers, servants, contractors or agents;
(b) any authorised works or any other works authorised by this Part of this Schedule carried out by Viking Link 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 7 (consent to transfer benefit of Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph 154(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 154; 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) Viking Link 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 (such representations not to be unreasonably withheld or delayed).
(5) Viking Link 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) Viking Link 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 Viking Link’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 Viking Link’s control and if reasonably requested to do so by the undertaker Viking Link must provide an explanation of how the claim has been minimised, where relevant.
(7) Any dispute between the undertaker and Viking Link regarding the terms, cover or insured level of the insurance policy shall be resolved in accordance with paragraph 158 (Arbitration).
Enactments and agreements
67 Save to the extent provided for to the contrary elsewhere in this Part of this Schedule, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Viking Link 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
68 (1) Where in consequence of the proposed construction of any part of the authorised works, Viking Link makes requirements for the protection or alteration of apparatus under paragraph 152, 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 Viking Link’s undertaking and Viking Link must use its best endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Viking Link’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
69 If in consequence of the agreement reached under paragraph 61(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Viking Link to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
70 Save for differences or disputes arising under paragraph 152 (apparatus: protection), any difference or dispute arising between the undertaker and Viking Link under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Viking Link, be determined by arbitration in accordance with article 43 (arbitration).
Notices
71 Notwithstanding article 41 (Service of notices), any plans submitted to Viking Link by the undertaker pursuant to paragraph 152 (apparatus: protection) must be submitted using the “LSBUD” system ( https://lsbud.co.uk/) or to such other address as Viking Link may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 6 FOR THE PROTECTION OF LINCOLNSHIRE FIRE & RESCUE SERVICE
Application
72 For the protection of Lincolnshire Fire and Rescue as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Lincolnshire Fire and Rescue.
Interpretation
73 In this Part of this Schedule—
“Index” means the Consumer Price Index;
“Index Linked” means an increase in the sums payable on an annual basis or pro rata per diem from the first day following the first year of operation of the authorised development, to the date of payment, based upon the relevant Index last published before the first day following the first year of operation of the authorised development; and
“Lincolnshire Fire and Rescue” means Lincolnshire County Council in its capacity as a fire and rescue authority pursuant to section 1(2)(a) of the Fire and Rescue Services Act 2004.
Site visits
74 The undertaker must, prior to the date of completion of Work No. 2 or Work No. 3, use reasonable endeavours to facilitate a site familiarisation exercise in connection with Work No. 2 or Work No. 3 of the authorised development for Lincolnshire Fire and Rescue for the purposes of providing the necessary assurance to Lincolnshire Fire and Rescue that all the required systems and measures are in place in accordance with the battery storage safety management plan.
75 Following the anniversary of the date of completion of Work No. 2 or Work No. 3 of the authorised development, the undertaker must use reasonable endeavours to facilitate an annual review of the site by Lincolnshire Fire and Rescue at the reasonable request of Lincolnshire Fire and Rescue, up until the date of decommissioning of Work No. 2 or Work No. 3 of the authorised development.
Costs
76 Pursuant to the provisions set out in paragraphs 162 and 163, the undertaker must pay to Lincolnshire Fire and Rescue—
(a) £16,665 in the first year of operation of the authorised development for, or in connection with Lincolnshire Fire and Rescue’s attendance at the site familiarisation exercise facilitated by the undertaker pursuant to paragraph 162, such sum to be paid on a date mutually agreed between the parties (the “Payment Date”); and
(b) £1,530 in each subsequent year of operation of the authorised development until the later of the date of decommissioning of Work No. 2 and the date of decommissioning of Work No. 3, payable on the anniversary of the Payment Date, if in that year an annual review has taken place pursuant to paragraph 163.
77 The costs payable under sub-paragraph 164(b) are to be Index Linked.
Arbitration
78 Any difference or dispute arising between the undertaker and Lincolnshire Fire and Rescue under this Part of this Schedule must be determined by arbitration in accordance with article 43 (arbitration).
PART 7 FOR THE PROTECTION OF ECOTRICITY (HECK FEN SOLAR) LIMITED
79 The provisions of this Part of this Schedule apply for the protection of Heckington Fen unless otherwise agreed in writing between the undertaker and Heckington Fen.
80 In this Part of this Schedule—
“Heckington Fen” means Ecotricity (Heck Fen Solar) Limited (company number 13225224) whose registered office address is at Lion House, Rowcroft, Stroud, England, GL5 3BY;
“Heckington Fen Solar Park” means the proposed solar and battery storage park on land near Boston, Lincolnshire, consented by the Heckington Fen Solar Park Order 2025;
“Heckington Fen Works” means works to install cables, structures or other infrastructure within the Interface Area in conjunction with the proposed Heckington Fen Solar Park;
“Interface Area” means those areas hatched yellow on the Interface Area Plan; and
“Interface Area Plan” means the plan entitled Interface Area Plan and certified as the Interface Area Plan for the purposes of this Part of this Schedule.
81 The undertaker does not need to comply with the obligations in this Part of this Schedule where the order authorising the Heckington Fen Solar Park has expired without the authorised development having been commenced.
82 The undertaker must consult with Heckington Fen in the formulation of the proposed method of working and timing of execution of the undertaker’s works within the Interface Area, not less than 60 days prior to such works commencing, and have regard to reasonable representations received from Heckington Fen made at least 30 days prior to such works commencing.
83 The undertaker and Heckington Fen must act in good faith and use reasonable endeavours to cooperate to formulate the proposed method of working and timing of execution of works within the Interface Area (in accordance with paragraph 170 above) in a way which enables the undertaker and Heckington Fen to deliver the authorised development and the Heckington Fen Works respectively.
84 The undertaker must give to Heckington Fen not less than 30 days’ written notice of its intention to commence the construction of the undertaker’s works within the Interface Area and, not more than 14 days after completion of their construction, must give Heckington Fen written notice of the completion.
85 The undertaker must at all reasonable times during construction of the undertaker’s works in the Interface Area allow Heckington Fen and its servants and agents reasonable access to the Interface Area and all reasonable facilities for inspection of the works within the Interface Area.
86 In the event that Heckington Fen notifies the undertaker that it no longer has an interest in the Interface Area or no longer proposes to carry out works in the Interface Area, the undertaker does not need to comply with the obligations in paragraphs 170 to 173 above.
87 Any difference or dispute arising between Heckington Fen and the undertaker must, unless otherwise agreed in writing between Heckington Fen and the undertaker, be determined by arbitration in accordance with article 43 (arbitration) of the Order.
PART 8 FOR THE PROTECTION OF TRITON KNOLL LIMITED
Application
88 (1) For the protection of Triton Knoll as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Triton Knoll.
(2) Where the benefit of this Order is transferred or granted to another person under article 7 (consent to transfer benefit of the Order)—
(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between Triton Knoll and the transferee or grantee (as the case may be); and
(b) written notice of the transfer or grant must be given to Triton Knoll on or before the date of that transfer or grant.
Interpretation
89 In this Part of this Schedule—
“alternative apparatus” means appropriate alternative apparatus to the reasonable satisfaction of Triton Knoll to enable Triton Knoll to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any electric lines or electrical plant as defined in the 1989 Act, belonging to or maintained by Triton Knoll together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of Triton Knoll for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) of this 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 Part of this Schedule;
“commence” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by Triton Knoll (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;
“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, requires the undertaker to submit for Triton Knoll’s approval a ground mitigation scheme;
“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;
“maintain” and “maintenance” includes the ability and right to construct, use, repair, alter, inspect, renew or remove any apparatus or alternative apparatus of Triton Knoll;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—
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 181(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 181(2) or otherwise;
“Triton Knoll” means Triton Knoll OFTO Limited (company number 14141892) whose registered office is at 3rd Floor (South), 200 Aldersgate Street, London, United Kingdom, EC1A 4HD; and
“Triton Knoll access track” means the area of the Order land comprised of plots 13-11, 13-12, 13-14, 13-16, 13-17, 14-1, 14-2, 14-3, 14-4, 14-5, 14-6, 14-7, 14-8, 14-9, 15-2, 15-3 and 15-4 contained in the book of reference to the Order connecting the A17 to Doubletwelves Drove required in connection with Work No. 10.
On Street Apparatus
90 Except for paragraph 95 (retained apparatus: protection), and 97 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of Triton Knoll, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Triton Knoll are regulated by the provisions of Part 3 of the 1991 Act.
Protective works to buildings
91 The undertaker, in the case of the powers conferred by article 21 (protective works 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 Triton Knoll (such consent not to be unreasonably withheld).
Acquisition of land
92 (1) Save in respect of the Triton Knoll access track (to which the restrictions of this paragraph do not apply for the avoidance of doubt), the undertaker may not—
(a) appropriate or acquire or take temporary possession of any land or apparatus of Triton Knoll; or
(b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right or apparatus of Triton Knoll,
otherwise than by agreement (such agreement not to be unreasonably withheld or delayed).
(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between Triton Knoll and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Triton Knoll or affect the provisions of any enactment or agreement regulating the relations between Triton Knoll and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Triton Knoll reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Triton Knoll and the undertaker acting reasonably and which must be no less favourable on the whole to Triton Knoll unless otherwise agreed by Triton Knoll, and it will be the responsibility of the undertaker to procure and secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) The undertaker and Triton Knoll agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Triton Knoll or other enactments relied upon by Triton Knoll as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail, save to the extent otherwise agreed in writing between the undertaker and Triton Knoll.
(4) Any agreement or consent granted by Triton Knoll under paragraph 183 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).
Removal of apparatus
93 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of Triton Knoll 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 Triton Knoll in accordance with sub-paragraph (2) to (5).
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Triton Knoll advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Triton Knoll reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to Triton Knoll to its reasonable satisfaction (taking into account paragraph 94(1) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and
(b) subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, Triton Knoll must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for Triton Knoll to use its compulsory purchase powers to this end unless it elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Triton Knoll and the undertaker.
(5) Triton Knoll must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to Triton Knoll 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.
Facilities and rights for alternative apparatus
94 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Triton Knoll facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Triton Knoll and must be no less favourable on the whole to Triton Knoll than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by Triton Knoll (acting reasonably).
(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 less favourable on the whole to Triton Knoll 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 189 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Triton Knoll as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus: protection
95 (1) Not less than 56 days (or such lesser period agreed by Triton Knoll, acting reasonably) before the commencement of any specified works the undertaker must—
(a) submit to Triton Knoll a plan of those works to be executed including a ground monitoring scheme; and
(b) seek from Triton Knoll details of the underground extent of their electricity assets.
(2) The plan to be submitted to Triton Knoll under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant;
(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 methodology to demonstrate that all such works will have no adverse effect on the rating of the apparatus.
(3) The undertaker must not commence any specified works until Triton Knoll has given written approval of the plan so submitted (and the ground monitoring scheme).
(4) Any approval of Triton Knoll required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5), (7) and (8); and
(b) must not be unreasonably withheld or delayed.
(5) Triton Knoll 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, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus. Triton Knoll must give notice of its requirement for such works as soon as reasonably practicable and in any event within 42 days of the date of submission of a plan pursuant to sub-paragraph (1) (except in an emergency).
(6) Specified works must be executed in accordance with—
(a) the plan, submitted under sub-paragraph (1) (and the ground monitoring scheme), as approved or as amended from time to time by agreement between the undertaker and Triton Knoll; and
(b) all conditions imposed under sub-paragraph (4)(a), and Triton Knoll will be entitled to watch and inspect the execution of all specified works.
(7) Where Triton Knoll 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 Triton Knoll’s reasonable satisfaction prior to the commencement of any specified works (or any relevant part thereof) (unless otherwise agreed by Triton Knoll, acting reasonably).
(8) If Triton Knoll, in accordance with sub-paragraphs (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 176 to 178 and 180 to 182 apply as if the removal of the apparatus had been required by the undertaker under paragraph 181(2) (removal of apparatus).
(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.
(10) 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 Triton Knoll notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.
(11) Following completion of the works the undertaker shall submit a written report demonstrating that the works have had no adverse effect on the rating of the apparatus.
(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker will implement an appropriate ground mitigation scheme and Triton Knoll retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs pursuant to paragraph 184 (expenses).
Expenses
96 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Triton Knoll within 40 days of receipt of an itemised invoice or claim (accompanied by supporting evidence) from Triton Knoll all charges, costs and expenses reasonably and properly incurred by Triton Knoll in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by Triton Knoll in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by Triton Knoll as a consequence of Triton Knoll—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 181(3); or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting Triton Knoll;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans under this Part of this Schedule;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the supervision and surveillance of all specified works by Triton Knoll and its engineers, including the cost of travel, under paragraph 183(6)(b); and
(g) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 189 (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 Triton Knoll by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) Any amount which apart from this sub-paragraph would be payable to Triton Knoll 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 Triton Knoll 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.
Indemnity
97 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction use maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of Triton Knoll, or there is any interruption in any service provided, or in the supply of any goods, by Triton Knoll, or Triton Knoll becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand accompanied by an invoice or claim from Triton Knoll the cost reasonably and properly incurred by Triton Knoll in making good such damage or restoring the supply; and
(b) indemnify Triton Knoll for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Triton Knoll, by reason or in consequence of any such damage or interruption or Triton Knoll becoming liable to any third party.
(2) The fact that any act or thing may have been done by Triton Knoll on behalf of the undertaker or in accordance with a plan approved by Triton Knoll or in accordance with any requirement of Triton Knoll as a consequence of the authorised works or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Triton Knoll fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—
(a) any damage or interruption to the extent that it is attributable to the neglect or default of Triton Knoll, its officers, servants, contractors or agents;
(b) any authorised works or any other works authorised by this Part of this Schedule carried out by Triton Knoll 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 7 (consent to transfer benefit of Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph (3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph 185; and
(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.
(4) Triton Knoll 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 (unless payment is required in connection with a statutory compensation scheme) without first consulting the undertaker and considering their representations (such representations not to be unreasonably withheld or delayed).
(5) Triton Knoll 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) Triton Knoll must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity provisions under this paragraph applies where it is within Triton Knoll’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 Triton Knoll’s control and if reasonably requested to do so by the undertaker Triton Knoll must provide an explanation of how the claim has been minimised, where relevant.
Enactments and agreements
98 Save to the extent provided for to the contrary elsewhere in this Part of this Schedule, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Triton Knoll 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
99 (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or Triton Knoll requires the removal of apparatus under paragraph 181(2) (removal of apparatus) or Triton Knoll makes requirements for the protection or alteration of apparatus under paragraph 183 (retained apparatus: protection), the undertaker must use its reasonable endeavours to co-ordinate the execution of the works (which are subject to this Part of this Schedule) 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 Triton Knoll’s undertaking and Triton Knoll must use its reasonable endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Triton Knoll’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
100 If in consequence of the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Triton Knoll to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
101 Save for differences or disputes arising under paragraph 181(2), 181(4), and 94(1), any difference or dispute arising between the undertaker and Triton Knoll under this Part of this Schedule must be determined by arbitration in accordance with article 43 (arbitration).
Notices
102 Notwithstanding article 41 (service of notices), any plans submitted to Triton Knoll by the undertaker pursuant to paragraph 183 (retained apparatus: protection) must be submitted to Triton Knoll at its registered office or to such other address as Triton Knoll may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 9 FOR THE PROTECTION OF BICKER FEN WINDFARM LIMITED
103 The provisions of this Part of this Schedule apply for the protection of Bicker Fen unless otherwise agreed in writing between the undertaker and Bicker Fen.
104 In this Part of this Schedule—
“Bicker Fen” means Bicker Fen Windfarm Limited (company number 06708662) whose registered office address is at 5th Floor, 20 Fenchurch Street, London, England, EC3M 3BY;
“Bicker Fen interface area” means the area of the Order land comprised of plots 18-9 and 18-48 contained in the book of reference; and
“Bicker Fen Wind Farm” means the wind farm located on land near Boston, Lincolnshire.
Co-ordination and co-operation
105 The undertaker must consult with Bicker Fen in the formulation of the proposed method of working and timing of execution of the undertaker’s works within the Bicker Fen interface area, not less than 60 days prior to such works commencing, and have regard to reasonable representations received from Bicker Fen made at least 30 days prior to such works commencing.
106 The undertaker and Bicker Fen must act in good faith and use reasonable endeavours to cooperate to formulate the proposed method of working and timing of execution of works within the Bicker Fen interface area (in accordance with paragraph 193 above) in a way which enables—
(a) the undertaker to deliver the authorised development; and
(b) Bicker Fen to operate and maintain Bicker Fen Wind Farm.
107 The undertaker must give to Bicker Fen not less than 30 days’ written notice of its intention to commence the construction of the undertaker’s works within the Bicker Fen interface area and, not more than 14 days after completion of their construction, must give Bicker Fen written notice of the completion.
108 The undertaker must at all reasonable times during construction of the undertaker’s works in the Bicker Fen interface area allow Bicker Fen and its servants and agents reasonable access to the Bicker Fen interface area and all reasonable facilities for inspection of the works within the Bicker Fen interface area.
109 In the event that Bicker Fen notifies the undertaker that it no longer has an interest in the Bicker Fen interface area, the undertaker does not need to comply with the obligations in paragraphs 193 to 196 above.
Indemnity
110 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) 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 infrastructure forming part of Bicker Fen Wind Farm, the undertaker will
(a) bear and pay on demand (accompanied by an invoice or claim from Bicker Fen) the cost reasonably incurred by Bicker Fen in making good such damage; and
(b) indemnify Bicker Fen up to a sum of £10,000,000 (ten million pounds) for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Bicker Fen, by reason or in consequence of any such damage other than arising from any negligence or default of Bicker Fen.
(2) Nothing in sub-paragraph (1) will impose any liability on the undertaker in respect of any damage to the extent that it is attributable to the neglect or default of Bicker Fen, its officers, servants, contractors or agents.
(3) Bicker Fen must give the undertaker reasonable notice of any third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.
(4) Before carrying out any of the authorised works within the Bicker Fen interface area the undertaker must put in place a policy of insurance with a reputable insurer the coverage and level of cover to be first agreed in writing between the undertaker and Bicker Fen (but to be no more than £10,000,000 (ten million pounds)) per occurrence or series of occurrences arising out of one event), and evidence of such insurance to be provided on request and thereafter maintained for the duration of the carrying out of any specified works.
111 The total amount payable by the undertaker pursuant to this Part of this Schedule shall not exceed £10,000,000 (ten million pounds).
112 Any difference or dispute arising between Bicker Fen and the undertaker must, unless otherwise agreed in writing between Bicker Fen and the undertaker, be determined by arbitration in accordance with article 43 (arbitration) of the Order.
PART 10 FOR THE PROTECTION OF RAILWAY INTERESTS
113 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 215 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.
114 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 1993;
“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 licencee 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;
“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 5 in respect of such works.
115 (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
116 (1) The undertaker must not exercise the powers conferred by—
(a) article 3 (development consent etc. granted by the Order);
(b) article 5 (maintenance of the authorised development);
(c) article 20 (discharge of water);
(d) article 22 (authority to survey and investigate the land);
(e) article 23 (compulsory acquisition of land);
(f) article 24 (compulsory acquisition of land – incorporation of the mineral code);
(g) article 25 (statutory authority to override easements and other rights);
(h) article 27 (compulsory acquisition of rights and imposition of restrictive covenants);
(i) article 28 (private rights);
(j) article 30 (acquisition of subsoil only);
(k) article 32 (temporary use of land for carrying out the authorised development);
(l) article 34 (temporary use of land for maintaining or decommissioning the authorised development);
(m) article 35 (statutory undertakers);
(n) article 42 (felling or lopping of trees or removal of hedgerows);
(o) the powers conferred by section 11(3) (power of entry) of the 1965 Act;
(p) the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;
(q) the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016; and
(r) any powers under 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 35 (statutory undertakers), article 25 (statutory authority to override easements and other rights) or article 28 (private rights), 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.
117 (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.
118 (1) Any specified work and any protective works to be constructed by virtue of paragraph 205(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 205;
(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, or in consequence of the construction 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 its servants, contractors or agents.
119 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.
120 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.
121 (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 paragraph 205(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 210(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.
122 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 205(3) or in constructing any protective works under the provisions of paragraph 205(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 or diversion of services which may be reasonably necessary for the same reason; and
(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.
123 (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 117(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 paragraph 117(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 117(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 206.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 127(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 210(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 43 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.
124 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.
125 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.
126 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.
127 (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 37 (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; or
(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: and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision 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 sub-paragraph.
(2) 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.
(3) The sums payable by the undertaker under sub-paragraph (1) shall if relevant include a sum equivalent to the relevant costs.
(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs 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).
(6) 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 subparagraph (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.
128 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 paragraph 215) 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).
129 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.
130 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.
131 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.
132 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 7 (consent to transfer 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.
133 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 etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.
134 Any dispute arising under this Part of this Schedule, unless otherwise provided for, must be referred to and settled by arbitration in accordance with article 43 (arbitration).
PART 11 FOR THE PROTECTION OF CADENT GAS LIMITED AS GAS UNDERTAKER
Application
135 For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect.
Interpretation
136 In this Part of this Schedule—
“1991 Act” means the New Roads and Street Works Act 1991;
“acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: (i) “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and “A3” if the rating is assigned by Moody’s Investors Services Inc.;
“acceptable insurance” means a third party liability insurance effected and maintained by the undertaker to a level of not less than £50,000,000 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance must be maintained for the construction period of the authorised works which constitute specified works and arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the same requirements as an “acceptable credit provider”, such policy must include (but without limitation)—
Cadent as a Co-Insured;
a cross liabilities clause;
a waiver of subrogation in favour of Cadent; and
contractors’ pollution liability for third party property damage and third party bodily damage arising from a pollution/contamination event with cover of £10,000,000.00 (ten million pounds) per event or £20,000,000.00 (twenty million pounds) in aggregate;
“acceptable security” means either—
evidence provided to Cadent’s reasonable satisfaction that the Undertaker has a tangible net worth of not less than £50,000,000.00 (Fifty Million Pounds (or an equivalent financial measure);
a parent company guarantee from a parent company in favour of Cadent to cover the undertaker’s liability to Cadent to a cap of not less than £50,000,000 (fifty million pounds) per asset per event up to a total liability cap of £50,000,000 (fifty million pounds) (in a form reasonably satisfactory to Cadent and where required by Cadent, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); or
a bank bond or letter of credit from an acceptable credit provider in favour of Cadent Gas Limited to cover the undertaker’s liability to Cadent for an amount of not less than £50,000,000 (fifty million pounds) per asset per event up to a total liability cap of £50,000,000 (fifty million pounds) (in a form reasonably satisfactory to Cadent);
“alternative apparatus” means appropriate alternative apparatus to the satisfaction of Cadent to enable Cadent to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, (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 this 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 Part of 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 Gas Limited as a public gas transporter within the meaning of Section 7 of the Gas Act 1986 (as amended by the Gas Act 1995);
“commence” has the same meaning as in article 2 of this Order and commencement will be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms commence and commencement include operations for the purposes of intrusive archaeological investigations and intrusive investigations of the existing condition of the ground or of structures within 15 metres in any direction of Cadent’s apparatus;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary and/or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) 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, must 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 to properly and sufficiently describe and assess the works to be executed;
“parent company” means a parent company of the undertaker acceptable to Cadent and which will have been approved by Cadent acting reasonably;
“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 229(2) or otherwise;
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 229(2) or otherwise; and/or
include any of the activities that are referred to in CD/SP/SSW/22 (Cadent’s policies for safe working in the vicinity of Cadent’s Assets).
On Street Apparatus
137 (1) Except for paragraphs 138 (apparatus in stopped up streets), 141 (removal of apparatus) in so far as paragraph 225(2) applies, 142 (facilities and rights for alternative apparatus) in so far as sub-paragraph 137(2) below applies, 143 (retained apparatus: protection), 144 (expenses) and 145 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of Cadent, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 of the 1991 Act.
(2) Paragraphs 141 and 142 of this Part of this Schedule will apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within existing adopted public highway.
(3) Notwithstanding article 11 (street works) or any other powers in the Order generally, section 85 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.
Apparatus of Cadent in closed or diverted streets
138 Notwithstanding the temporary closure or diversion of any highway under the powers of article 15 (temporary prohibition or restriction of use of streets and public rights of way), Cadent will be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as it would have been entitled to do immediately before such temporary closure or diversion in respect of any apparatus which at the time of the stopping up or diversion was in that highway.
Protective works to buildings
139 (1) The undertaker, in the case of the powers conferred by article 21 (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 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—
(a) pay compensation to Cadent for any loss sustained by it; and
(b) indemnify Cadent against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by Cadent, by reason of any such damage or interruption.
(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of Cadent or its contractors or workers; and Cadent will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof 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
140 (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of Cadent otherwise than by agreement.
(2) As a condition of agreement between the parties in sub-paragraph 140(1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between Cadent and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Cadent or affects the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent and variations upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure and/or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent or other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of Schedule will prevail.
(4) Any agreement or consent granted by Cadent under paragraph 143 or any other paragraph of this Part of this Schedule, will not be taken to constitute agreement under sub-paragraph 140(1).
(5) As a condition of an agreement between the parties in sub-paragraph 140(1) that involves decommissioned apparatus being left in situ in land owned by the undertaker the undertaker must accept a surrender of any existing easement 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 save that any liabilities related to subsisting breaches by Cadent of the existing easement or other interest at the time of such surrender will remain with Cadent.
(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 141 do not apply, the undertaker must—
(a) retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and
(b) (where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.
Removal of apparatus
141 (1) If, in the exercise of any agreement reached in accordance with paragraph 140 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the rights and facilities referred to in sub-paragraph (2) have been provided, to the satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive.
(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Cadent advance written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 142(1) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus);
(b) subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus); and
(c) to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus).
(3) If the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, Cadent may, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation 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, 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
142 (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 alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by Cadent.
(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under paragraph 142(1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed (in Cadent’s opinion) then the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 149 (arbitration) of this Part of this Schedule and the arbitrator will 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
143 (1) Not less than 56 days (or such time period as may be agreed in writing between Cadent and the undertaker) before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works.
(2) The plan to be submitted to Cadent under sub-paragraph (1) must include a method statement and describe—
(a) the exact position of the works;
(b) the level at which these are proposed to be constructed or renewed;
(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;
(d) the position of all apparatus;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and
(f) any intended maintenance regimes.
(3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until Cadent has given written approval of the plan so submitted.
(4) Any approval of Cadent required under sub-paragraph (3)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (5) or (7); and,
(b) must not be unreasonably withheld or delayed.
(5) In relation to any work to which sub-paragraphs (1) or (2) apply, Cadent may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.
(6) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and Cadent and in accordance with all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works.
(7) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required prior to commencement.
(8) If Cadent, in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 135 to 137 and 140 to 142 apply as if the removal of the apparatus had been required by the undertaker under paragraph 229(2) provided that such written notice must be given by Cadent to the undertaker no later than as part of the approval of a plan submitted pursuant to sub-paragraph (1).
(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.
(10) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works 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 (11) at all times.
(11) At all times when carrying out any works authorised under the Order the undertaker must comply with Cadent’s policies for safe working in proximity to gas apparatus “CD/SP/SSW/22 (Cadent’s policies for safe working in the vicinity of Cadent’s Assets” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.
(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works the undertaker must implement an appropriate ground mitigation scheme save that Cadent retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 144(1).
Expenses
144 (1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent within 30 days of receipt of an invoice all charges, costs and expenses reasonably anticipated or reasonably incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by Cadent in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 229(3) if it elects to do so; or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting Cadent;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule;
(g) any watching brief pursuant to paragraph 231(6).
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.
(3) If in accordance with the provisions of this Part of this Schedule—
(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 43 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(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.
Indemnity
145 (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will—
(a) bear and pay on demand (accompanied by an invoice or claim from Cadent) the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and
(b) indemnify Cadent for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Cadent, by reason or in consequence of any such damage or interruption or Cadent becoming liable to any third party as aforesaid other than arising from any negligence or default of Cadent.
(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan or in a manner as may otherwise be agreed between the undertaker and Cadent.
(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 Cadent, its officers, servants, contractors or agents; and
(b) any authorised works or any other works authorised by this Part of this Schedule carried out by Cadent 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 7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this paragraph (b) will be subject to the full terms of this Part of this Schedule including this paragraph 145.
(4) Cadent must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.
(5) The undertaker must not commence construction (and must not permit the commencement of such construction) of the specified works until Cadent is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to Cadent that it will maintain such acceptable insurance for the construction period of the specified works from the proposed date of commencement of construction of the specified works) and Cadent has confirmed the same in writing to the undertaker.
(6) In the event that the undertaker fails to comply with sub-paragraph 233(5) of this Part of this Schedule, nothing in this Part of this Schedule will prevent Cadent from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.
Enactments and agreements
146 Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between Cadent and the undertaker, nothing in this Part of this Schedule will affect 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
147 (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 229(5) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 143, the undertaker will 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 will 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
148 If in consequence of any agreement reached in accordance with paragraph 140(1) or the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Cadent in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
149 Save for differences or disputes arising under sub-paragraphs 229(2), 229(4), 142(1), paragraph 233(5) and paragraph 231 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 43 (arbitration) and in settling any difference or dispute, the arbitrator must have regard to the requirements of Cadent for ensuring the safety, economic and efficient operation of Cadent’s apparatus.
Notices
150 The plans submitted to Cadent by the undertaker pursuant to paragraph 143(1) must be sent to Cadent Gas Limited Plant Protection by e-mail to plantprotection@cadentgas.com copied by e-mail to landservices@cadentgas.com and sent to the General Counsel Department at Cadent’s registered office or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker.
PART 12 FOR THE PROTECTION OF VICARAGE DROVE ENERGY CENTRE LIMITED
151 The provisions of this Part of this Schedule apply for the protection of VDEC unless otherwise agreed in writing between the undertaker and VDEC.
Interpretation
152 In this Part of this Schedule—
“apparatus” means the cables, photovoltaic panels, structures or other infrastructure owned, occupied or maintained by VDEC at Vicarage Drove Energy Centre for the purposes of electricity generation and storage;
“maintain” shall include the ability and right to construct, use, repair, inspect, renew or remove the apparatus of VDEC at Vicarage Drove Energy Centre;
“plan” and “plans” includes sections, drawings, specifications, designs, design data, software, 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 the VDEC interface area;
“specified works” means so much of any works or operations authorised by this Order (or authorised by any planning permission intended to operate in conjunction with this Order) as is within the VDEC interface area;
“VDEC” means Vicarage Drove Energy Centre Limited (company number 12290001) whose registered office address is at 6th Floor, 338 Euston Road, London, England, NW1 3BG;
“VDEC interface area” means the area of the Order land comprised of plots 18-52 and 18-56 contained in the book of reference; and
“Vicarage Drove Energy Centre” means the solar farm located on land near Boston, Lincolnshire.
Retained apparatus: protection
153 The undertaker must consult with VDEC on the plans and formulation of the proposed method of working and timing of execution of any specified works, not less than 56 days prior to such works commencing and have regard to reasonable representations received from VDEC made at least 28 days prior to such works commencing.
154 The undertaker must give to VDEC not less than 28 days’ written notice of its intention to commence the construction of any specified works and, not more than 14 days after completion of their construction, must give VDEC written notice of the completion.
155 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 method of working and 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.
156 The undertaker must at all reasonable times during construction of any specified works allow VDEC and its servants and agents reasonable access to the VDEC interface area and all reasonable facilities for inspection of the specified works.
Acquisition of land
157 Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus owned, occupied or maintained by VDEC at Vicarage Drove Energy Centre for the purposes of electricity generation and storage otherwise than by agreement.
Access
158 If in consequence of the exercise of powers granted under this Order the access to Vicarage Drove Energy Centre is materially obstructed, the undertaker must provide such alternative means of access to Vicarage Drove Energy Centre as will enable VDEC to operate and maintain its apparatus no less effectively than was possible before such obstruction.
Consent of VDEC
159 The undertaker must not exercise the powers conferred pursuant to this Order in plots 18-63 and 18-64 (as shown on the land plans) without the written consent of VDEC.
Expenses
160 Save where otherwise agreed in writing between VDEC and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to VDEC within 30 days of receipt of an itemised invoice or claim from VDEC all charges, costs and expenses reasonably and properly incurred by VDEC comprising the review of plans under this Part of this Schedule.
Indemnity
161 (1) Subject to paragraphs (2) to (6), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the specified works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, (including without limitation works carried out by the undertaker under this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus (other than apparatus located within the VDEC interface area), the undertaker will bear and pay within 60 days of receipt of an invoice or claim from VDEC the cost reasonably and properly incurred by VDEC in making good such damage.
(2) The fact that any act or thing may have been done by VDEC on behalf of the undertaker or in accordance with a plan reviewed by VDEC or in accordance with any requirement of VDEC 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 VDEC fails to carry out and execute the works properly with due care and attention and in a skilful and workmanlike 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 act, neglect or default of VDEC, its officers, servants, contractors or agents; or
(b) 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) VDEC must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability, compromise or demand must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.
(5) VDEC 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) VDEC 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 VDEC’s reasonable ability and control to do so and if reasonably requested to do so by the undertaker VDEC must provide an explanation of how the claim has been minimised, where relevant.
Arbitration
162 Any difference or dispute arising between VDEC and the undertaker must, unless otherwise agreed in writing between VDEC and the undertaker, be determined by arbitration in accordance with article 43 (arbitration) of the Order.
PART 13 FOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY UNDERTAKER
Application
163 (1) For the protection of National Grid as referred to in this Schedule the following provisions have effect, unless National Grid is acting with the benefit of the Order or as otherwise agreed in writing, between the undertaker and National Grid.
(2) Subject to sub paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 7 (consent to transfer benefit of the Order)—
(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and
(b) written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant
(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid (but without prejudice to paragraph 261(3)(b)).
Interpretation
164 In this Part of this Schedule—
“acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: (i) “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and “A3” if the rating is assigned by Moody’s Investors Services Inc.;
“acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of indemnity of not less than £50,000,000.00 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance shall be maintained (a) for the duration of the construction period of the authorised works; and (b) after the construction period of the authorised works in respect of any use and maintenance of the authorised development by or on behalf of the undertaker which constitute specified works and arranged with an insurer whose security/credit rating meets the same requirements as an “acceptable credit provider”, such insurance shall include (without limitation)—
a waiver of subrogation and an indemnity to principal clause in favour of National Grid;
pollution liability for third party property damage and third party bodily damage arising from any pollution/contamination event with a (sub)limit of indemnity of not less than £10,000,000.00 (ten million pounds) per occurrence or series of occurrences arising out of one event or £20,000,000.00 (twenty million pounds) in aggregate;
“acceptable security” means either—
a parent company guarantee from a parent company in favour of National Grid to cover the undertakers liability to National Grid to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Grid and where required by National Grid, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); or
a bank bond or letter of credit from an acceptable credit provider in favour of National Grid to cover the undertaker’s liability to National Grid for an amount of not less than £10,000,000.00 (ten million pounds) per asset per event up to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Grid); or “alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means any electric lines or electrical plant as defined in the 1989 Act, belonging to or maintained by National Grid; together with any replacement apparatus and such other apparatus whether or not constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) (interpretation) of this Order and includes any associated development authorised by the Order and for the purposes of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;
“commence” and “commencement” has the same meaning as in article 2(1) (interpretation) of this Order except for the purposes of this Schedule only where it shall include any below ground surveys, ground work operations or the erection of construction plant and equipment;
“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Schedule;
“functions” includes powers and duties;
“ground mitigation scheme” means a scheme approved by National Grid (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, is to require the undertaker to submit for National Grid’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;
“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 works;
“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Grid; construct, use, repair, alter, inspect, renew or remove the apparatus;
“NESO” means as defined in the STC;
“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;
“parent company” means a parent company of the undertaker acceptable to and which shall have been approved by National Grid acting reasonably; “specified works” means any of 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 257(2) (removal of apparatus) or otherwise; or
may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 257(2) or otherwise; and
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 owner and NESO as modified from time to time;
“STC Claims” means any claim made under the STC against National Grid Electricity Transmission plc 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.
On Street Apparatus
165 Except for paragraphs 254 (apparatus of National Grid in affected streets), 259 (retained apparatus: protection), 260 (expenses) and 261 (indemnity) of this Part of this Schedule which apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus of National Grid in affected streets
166 (1) Where any street is stopped up under article 13 (power to alter layout etc. of streets), article 11 (street works), article 17 (access to works), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street or highway but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 257 (removal of apparatus) or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 259 (retained apparatus: protection).
(2) Notwithstanding the temporary closure or diversion of any highway under the powers of article 16 (temporary prohibition or restriction of use of streets and public rights of way), National Grid is at liberty at all times to take all necessary access across any such closed highway or public right of way and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary to enable it to maintain any apparatus which at the time of the closure or diversion was in that highway or public right of way.
Protective works to buildings
167 The undertaker, in the case of the powers conferred by article 21 (protective works 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 National Grid.
Acquisition of land
168 (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 (a) appropriate or acquire or take temporary possession of any land or apparatus belonging to National Grid or (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Grid otherwise than by agreement.
(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or affect the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it will be the responsibility of the undertaker to procure and/or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.
(3) Save where otherwise agreed in writing between National Grid and the undertaker, the undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/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 National Grid and/or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule shall prevail.
(4) Any agreement or consent granted by National Grid under paragraph 170 (retained apparatus: protection) or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).
Removal of apparatus
169 (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Schedule and any right of National Grid 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 National Grid in accordance with sub-paragraphs (2) to (5).
(2) If, for the purpose of executing any works comprised in the authorised development 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 National Grid advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to National Grid to its satisfaction (taking into account paragraph 169(1) (facilities and rights for alternative apparatus) below) the necessary facilities and rights—
(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and
(b) subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid may, in its sole discretion, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to assist the undertaker to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.
(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.
(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Grid 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.
Facilities and rights for alternative apparatus
170 (1) Subject to sub-paragraph (2), where, in accordance with the provisions of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.
(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 less favourable on the whole to National Grid 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 265 (arbitration) of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph, article 43 (arbitration) applies.
Retained apparatus: protection
171 (1) Not less than 56 days before the commencement of any specified works 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 the Specified Works the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement which shows and describes—
(a) the exact position of the specified works;
(b) the level at which the specified works 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 specified 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’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 subparagraphs (6) or (8); and
(b) must not be unreasonably withheld or delayed.
(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 and National Grid must notify the undertaker of such modifications within a period of 56 days beginning with the date on which the plan required under sub-paragraph (1) has been submitted to National Grid.
(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 (10), 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 satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required and National Grid shall give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(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, paragraph 257(2) (removal of apparatus) applies 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 for which a plan has been submitted for specified works (or part thereof), a new plan for such works, 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 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 specified works authorised under this Order, the undertaker must comply with National Grid’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.
Expenses
172 (1) Save where otherwise agreed in writing between National Grid and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—
(a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—
(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 257(3); or
(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;
(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;
(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
(d) the approval of plans;
(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and
(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 Schedule.
(2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this 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 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 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 259 to be necessary, then, if such placing involves cost in the construction of works under 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 subparagraph would be payable to National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.
(5) Any amount which apart from this sub-paragraph would be payable to National Grid 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 National Grid 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.
(6) Where reasonably anticipated charges, costs or expenses have been paid by the undertaker pursuant to sub-paragraph (1), if the actual charges, costs or expenses incurred by National Grid are less than the amount already paid by the undertaker National Grid will repay the difference to the undertaker as soon as reasonably practicable.
Indemnity
173 (1) Subject to sub-paragraphs (2) to (7), if by reason or in consequence of the construction of any works authorised by this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, (including without limitation works carried out by the undertaker under this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of 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 will—
(a) bear and pay within 30 days of receipt of 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 workmanlike 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 act, neglect or default of National Grid, its officers, servants, contractors or agents;
(b) any authorised works and/or any other works authorised by this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of this Order pursuant to section 156 of the 2008 Act or articles 6 (benefit of the Order) or 7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be executed and not falling within this sub-paragraph (b) will be subject to the full terms of this Schedule including this paragraph; and
(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.
(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability, compromise or demand must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its 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
(7) The undertaker must not commence construction (and not permit the commencement of such construction) of the specified works on any land owned by National Grid or in respect of which National Grid has an easement or wayleave for its Apparatus or other interest or to carry out any works within 15 metres of National Grid apparatus until the following conditions are satisfied—
(a) unless and until National Grid is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has first provided the acceptable security (and provided evidence that it shall maintain such acceptable security for the construction period of the authorised works (or maintenance thereof) from the proposed date of commencement of construction or maintenance of the authorised works) and National Grid has confirmed the same to the undertaker in writing; and
(b) unless and until National Grid is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to National Grid that it shall maintain such acceptable insurance for the construction period of the authorised works (or maintenance thereof) from the proposed date of commencement of construction or maintenance of the authorised works) and National Grid has confirmed the same in writing to the undertaker.
(8) In the event that the undertaker fails to comply with sub-paragraph (7) of this paragraph 261 (Indemnity), nothing in this Schedule shall prevent National Grid from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.
Enactments and agreements
174 Save to the extent provided for to the contrary elsewhere in this Schedule or by agreement in writing between National Grid and the undertaker, nothing in this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Cooperation
175 (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 257(2) (removal of apparatus) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 259 (retained apparatus: protection), the undertaker shall use reasonable endeavours to coordinate 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 National Grid’s undertaking and National Grid shall use reasonable endeavours to cooperate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever National Grid’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
176 If in consequence of the agreement reached in accordance with paragraph 167(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.
Arbitration
177 Save for differences or disputes arising under paragraphs 257(2), 257(4), 169(1) and 259 any, difference or dispute arising between the undertaker and National Grid under this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 43 (arbitration).
Notices
178 Notwithstanding article 41 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 259 (retained apparatus: protection) must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.
PART 14 FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY DISTRIBUTION (EAST MIDLANDS) PLC
Application
179 For the protection of NGED the following provisions have effect, unless otherwise agreed in writing between the undertaker and NGED.
Interpretation
180 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable NGED to fulfil its statutory functions in a manner not less efficient than previously and where the context requires includes any part of such alternative apparatus;
“alternative rights” means all and any necessary legal easements, leases, consents or permissions required by NGED in order to permit or authorise a diversion and to permit or authorise NGED to lay, keep, operate, maintain, adjust, repair, alter, relay, renew, supplement, inspect, examine, test and remove the alternative apparatus;
“apparatus” means electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by NGED;
“diversion” means an alteration to the NGED Network in order to enable or facilitate the authorised development;
“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;
“NGED” means National Grid Electricity Distribution (East Midlands) plc (company number 02366923) whose registered office is at Avonbank, Feeder Road, Bristol, BS2 0TB;
“NGED Network” means NGED’s distribution network operated pursuant to its distribution licence issued pursuant to section 6 of the 1989 Act;
“plan” or “plans” includes all designs, drawings, specifications, method statements, programmes, calculations, risk assessments and other documents that are reasonably necessary to properly and sufficiently describe and assess the works to be executed; and
“specified work” means so much of any of the authorised development that is carried out within 15 metres of any apparatus;
other terms have the meaning given in article 2 (interpretation).
Precedence of 1991 Act in respect of apparatus in streets
181 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and NGED are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Access to NGED apparatus in streets
182 Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 16 (temporary prohibition or restriction of use of streets and public rights of way), NGED is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.
No acquisition except by agreement
183 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
184 (1) If, in the exercise of the powers conferred by this Order, the undertaker requires that apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of NGED to maintain that apparatus in that land must not be extinguished until (a) alternative apparatus has been constructed, (b) alternative rights have been acquired or granted for the alternative apparatus, (c) the alternative apparatus is in operation and (d) access to it has been provided if necessary, to the reasonable satisfaction of NGED in accordance with sub-paragraphs (2) to (10) or with such alternative or supplementary provisions as the undertaker and NGED may agree between them.
(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, it must give to NGED 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.
(3) If as a direct consequence of the exercise of any of the powers conferred by this Order NGED reasonably needs to remove or divert any of its apparatus and the removal of that apparatus has not been required by the undertaker under sub-paragraph (2) then NGED must give to the undertaker advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and this Part has effect as if the removal or diversion of such apparatus had been required by the undertaker under sub-paragraph (2).
(4) If as a direct consequence of the removal or diversion of apparatus under sub-paragraph (2) or (3) alternative apparatus is to be constructed in land owned or controlled by the undertaker then the undertaker must afford to NGED the necessary facilities alternative rights and any necessary third party consent or approvals for the construction of alternative apparatus in the other land owned or controlled by the undertaker.
(5) If the undertaker or NGED requires to remove or divert any apparatus placed within the Order land and alternative apparatus is to be constructed in land not owned or controlled by the undertaker as a consequence of the removal or diversion of apparatus then NGED shall use its reasonable endeavours, as soon as reasonably possible, to obtain alternative rights in the land in which the alternative apparatus is to be constructed.
(6) If alternative apparatus is to be constructed in land not owned or controlled by the undertaker and NGED is unable to obtain such alternative rights as are mentioned in sub-paragraph (5), the undertaker and NGED shall consider whether there is an alternative engineering solution that can achieve the diversion without the need for the use of compulsory powers. Should such an alternative engineering solution not be practicable and deliverable in a reasonable timescale and at a reasonable cost (which shall be determined by the undertaker acting reasonably), NGED may but shall not be compelled to use the powers of compulsory acquisition set out in this Order or the Electricity Act 1989 to obtain the necessary facilities and rights in the land outside the Order limits in which the alternative apparatus is to be constructed in accordance with a timetable agreed between NGED and the undertaker.
(7) Any alternative apparatus required pursuant to sub-paragraphs (2) or (3) must be constructed in such manner and in such line or situation as may be agreed between NGED and the undertaker or in default of agreement settled in accordance with paragraph 277.
(8) NGED must, after the alternative apparatus to be provided or constructed has been agreed or settled pursuant to paragraph 277, and after the acquisition by or grant to NGED of any such facilities and alternative rights as are referred to in sub-paragraphs (2) to (6), 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.
(9) Regardless of anything in sub-paragraph (8), if the undertaker gives notice in writing to NGED that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by NGED, must be executed by the undertaker—
(a) in accordance with plans and specifications and in such line or situation agreed between the undertaker and NGED, or, in default of agreement, determined in accordance with paragraph 277; and
(b) without unnecessary delay to the reasonable satisfaction of NGED.
(10) Nothing in sub-paragraph (9) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus or alternative apparatus, or execute any filling around the apparatus or alternative apparatus (where the apparatus or alternative apparatus is laid in a trench) within 600 millimetres of the point of connection or disconnection.
Facilities and rights for alternative apparatus
185 (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to NGED 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 NGED or in default of agreement settled in accordance with paragraph 277.
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in the land of the undertaker, the expert 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 which may be required to prevent interference with any proposed works of the undertaker;
(b) have regard to the terms and conditions, if any, applicable to the apparatus for which the alternative apparatus is to be substituted;
(c) have regard to NGED’s ability to fulfil its service obligations and comply with its licence conditions; and
(d) have regard to the standard form rights NGED ordinarily secures for the type of alternative apparatus to be constructed in the circumstances similar to the authorised development.
(3) If the facilities and alternative rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and alternative rights are to be granted, are in the opinion of the expert less favourable on the whole to NGED 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 expert must make such provision for the payment of compensation by the undertaker to NGED as appears to the expert to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
186 (1) Not less than 60 days before the undertaker intends to start the execution of any specified work where the removal of the apparatus in question has not been required under paragraph 5, the undertaker shall submit to NGED a plan of the works to be executed. Any submission must note the time limits imposed on NGED under sub-paragraph (3) below.
(2) Subject to sub-paragraph (3) below the undertaker shall not commence any works to which sub-paragraph (1) applies until NGED has identified, without unreasonable delay, any reasonable requirements it has for the alteration or protection of the apparatus, or for securing access to it.
(3) If by the expiry of 60 days beginning with the date on which a plan under sub-paragraph (1) is submitted NGED has not advised the undertaker in writing of any reasonable requirements for the alteration or protection of the apparatus, or for securing access to it, it shall be deemed not to have any such requirements and the undertaker shall be at liberty to proceed with the works.
(4) The works referred to in sub-paragraph (1) must be executed only in accordance with the plan submitted under sub-paragraph (1), and in accordance with any reasonable requirements as may be notified in accordance with sub-paragraph (2) by NGED and NGED shall be entitled to watch and inspect the execution of those works.
(5) At all times when carrying out the authorised development the undertaker shall comply with NGED’s Avoidance of Danger from Electricity Overhead Lines and Underground Cables (2014), the Energy Network Association’s A Guide to the Safe Use of Mechanical Plant in the Vicinity of Electricity Overhead Lines (undated), the Health and Safety Executive’s GS6 Avoiding Danger from Overhead Power Lines and the Health and Safety Executive’s HSG47 Avoiding Danger from Underground Services (Third Addition) (2014) as the same may be replaced from time to time.
(6) If NGED, in accordance with sub-paragraph (2) and in consequence of the works proposed by the undertaker, reasonably requires the removal or diversion of any apparatus and gives advance written notice to the undertaker of that requirement, this Part of this Schedule applies as if the removal or diversion of the apparatus had been required by the undertaker under paragraph 272(2).
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 60 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.
(8) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to NGED notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with any reasonable requirements stipulated by NGED under sub-paragraph (2) and with sub–paragraphs (4) and (5) in so far as is reasonably practicable in the circumstances. Nothing in this sub-paragraph prevents NGED from exercising its rights under sub-paragraph (6).
Expenses and costs
187 (1) Subject to the following provisions of this paragraph, the undertaker must pay to NGED the proper and reasonable expenses reasonably incurred by NGED in or in connection with, the inspection, removal, diversion, alteration or protection of any apparatus, the construction of any alternative apparatus and the acquisition or grant of alternative rights for the alternative apparatus, arising as a result of the powers conferred upon the undertaker pursuant to this Order.
(2) The value of any apparatus removed 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.
(3) If in accordance with the provisions of this Part of this Schedule NGED requires that alternative apparatus of better type, of greater capacity, of greater dimensions or at a greater depth is placed in substitution for existing apparatus—
(a) for NGED’s network requirements; and
(b) over and above what is necessary as a consequence of and for the purpose of the authorised development,
NGED shall reduce the amount payable by the undertaker pursuant to sub-paragraph (1) by an amount equal to the cost of such additional requirements.
(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 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 NGED 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 NGED 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.
Liability
188 (1) Subject to sub-paragraph (2), if by reason or in consequence of the construction of any specified work or any subsidence resulting from any such work any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of NGED the undertaker is to—
(a) bear and pay the cost reasonably incurred by NGED in making good such damage or restoring the supply; and
(b) reimburse NGED for any other expenses, loss, damages, penalty or costs reasonably and properly incurred by NGED, 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 NGED, its officers, servants, contractors or agents.
(3) NGED must give the undertaker reasonable notice of any such claim, including third-party claims, or demand and no settlement, admission of liability, compromise, or demand is to be made without the consent of the undertaker, unless payment is required in connection with a compensation scheme. If the undertaker withholds such consent, NGED is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) NGED must act reasonably in relation to any claim or demand served under sub-paragraph (1) and use its reasonable endeavours to mitigate and minimise any costs, expenses, loss, demands, proceedings and penalties to which a claim or demand under sub-paragraph (1) applies and 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) NGED’s liability to the undertaker for negligence or breach of contract, in respect of each diversion, shall be limited to the value of that diversion and NGED shall not otherwise be liable to the undertaker for any losses or costs incurred by the undertaker resulting from delays to the authorised development as a result of its failure to undertake works to deliver any alternative apparatus.
Expert determination
189 (1) Article 43 (arbitration) shall apply to any difference or dispute as to the legal interpretation of this Schedule and as provided for in sub-paragraph (7).
(2) Save as provided for in sub-paragraph (1) or sub-paragraph (7) any difference or dispute under this Part of this Schedule must 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 or the President of the Institution of RICS or the President of the Institution of Engineering and Technology (as relevant and agreed between NGED and the undertaker, both acting reasonably and without delay).
(3) All parties involved in settling any difference must use best endeavours to do so within 14 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 21 days of the notification of the dispute.
(4) The costs and fees of the expert and the costs of NGED and the undertaker are payable by the parties in such proportions as the expert may determine. In the absence of such determination the costs and fees of the expert are payable equally by the parties who shall each bear their own costs.
(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 14 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 14 days of receipt of the submissions under sub-paragraph (b); and
(d) give reasons for the decision.
(6) The expert must consider where relevant—
(a) the development outcome sought by the undertaker;
(b) the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;
(c) the nature of the power sought to be exercised by the undertaker;
(d) the effectiveness, cost and reasonableness of proposals for mitigation arising from any party;
(e) NGED’s service obligations and licence conditions; and
(f) any other important and relevant consideration.
(7) 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 43.
Enactments and agreements
190 Save to the extent provided for to the contrary elsewhere in this Schedule or by agreement in writing between NGED and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and NGED 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
191 (1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or NGED requires the removal and/or diversion of apparatus under paragraph 272 (removal of apparatus) or NGED makes requirements for the protection or alteration of apparatus under paragraph 274 (retained apparatus), the undertaker must use its reasonable endeavours to co-ordinate the execution of the authorised works in the interests of safety and the efficient and economic operation of NGED’s undertaking and NGED must use its reasonable endeavours to co-operate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever NGED’s consent, agreement or approval is required in relation to plans, documents or other information submitted by NGED or the taking of action by NGED, it must not be unreasonably withheld or delayed.
Access
192 If in consequence of the agreement reached under paragraph 271 (no acquisition except by agreement) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable NGED to maintain or use the apparatus no less effectively than was possible before such obstruction.
PART 15 FOR THE PROTECTION OF BICKER DROVE LIMITED
Access
193 The provisions of this Part of this Schedule apply for the protection of Bicker Drove, subject to paragraph 194, and unless otherwise agreed in writing between the undertaker and Bicker Drove.
194 (1) In the event that—
(a) UK Transition Power Holdings Limited or Bicker Drove no longer has an interest in the Bicker Drove land;
(b) Bicker Drove is no longer proceeding with the Bicker Drove Project; or
(c) The Bicker Drove Planning Permission lapses,
(2) Bicker Drove must notify the undertaker as soon as reasonably practicable.
(3) The provisions in this Part of this Schedule cease to apply in the case of any event listed under paragraph 194(1)(a), (b) or (c) above.
Interpretation
195 In this Part of this Schedule
“apparatus” means the battery energy storage or other infrastructure owned, occupied or maintained by Bicker Drove on the Bicker Drove land for the purposes of the Bicker Drove Project;
“authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) (interpretation) of this Order and includes any associated development authorised by the Order and for the purposes of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;
“Bicker Drove” means Bicker Drove Limited (company number 15674780) whose registered office address is at 20 St. James’s Street, 7th Floor, London, United Kingdom, SW1A 1ES;
“Bicker Drove interface area” means the area notified by the undertaker to Bicker Drove in accordance with paragraph 4;
“Bicker Drove land” means the land over which UK Transition Power Holdings Limited or Bicker Drove hold an interest and which is contained within the Order limits;
“Bicker Drove Project” means the proposed 1.2GW Battery Energy Storage System development subject to planning application reference B/25/0224 located on land near Boston, Lincolnshire;
“Bicker Drove stand-off area” means the Bicker Drove land within the Order limits, other than the Bicker Drove interface area;
“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, is to require the undertaker to submit for Bicker Drove’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” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Bicker Drove; construct, use, repair, inspect, renew or remove the apparatus;
“plan” and “plans” includes sections, drawings, specifications, designs, design data, software, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals,programmesand details of the extent, timing and duration of any proposed occupation of the Bicker Drove interface area or Bicker Drove stand-off area (as applicable);
“specifiedworks” means so much of any works or operationsauthorisedby this Order (orauthorisedby any planning permission intended to operate in conjunction with this Order) as is will or may be situated over, or within 15metresmeasured in any direction of any apparatus of Bicker Drove and within the Bicker Drove interface area or Bicker Drove stand-off area (as applicable); and
“The Bicker Drove Planning Permission” means the planning permission granted by Boston Borough Council on 29 June 2026 for the Proposed installation and operation of a Battery Energy Storage System (BESS) and other ancillary and associated infrastructure at Land East of Bicker Fen substation, Bicker Fen, Boston, under the Application Reference: B/25/0224.
Notification of route within the Bicker Drove land
196 (1) As soon as is reasonably practicable after the undertaker has identified the area of land required for the authorised works within the Bicker Drove land and in any event no later than three years from the date this Order takes effect, the undertaker must notify Bicker Drove in writing of the confirmed location of the Bicker Drove interface area (the “Route Confirmation Notice”).
(2) The Route Confirmation Notice must include a plan sufficient to identify the Bicker Drove interface area.
(3) From (and including) the date the Route Confirmation Notice is given—
(a) the area identified in the Route Confirmation Notice shall constitute the “Bicker Drove interface area”; and
(b) the Bicker Drove land, other than the Bicker Drove interface area, shall constitute the “Bicker Drove stand-off area”;
(4) for the purposes of this Part of this Schedule.
(5) The undertaker may, if reasonably required, issue a revised Route Confirmation Notice to vary the Bicker Drove interface area, provided that any revised notice is given as soon as is reasonably practicable and before the commencement of any specified works within any newly identified part of the Bicker Drove land. Any revised Route Confirmation Notice shall take effect from the date it is given and the Bicker Drove interface area and Bicker Drove stand-off area shall be construed accordingly.
(6) For the avoidance of doubt, the giving of the Route Confirmation Notice (or any revised Route Confirmation Notice) does not disapply or vary the undertaker’s obligations in paragraph 197 (retained apparatus within the Bicker Drove interface area: protection), including consultation and notice periods prior to commencing specified works within the Bicker Drove interface area.
Retained apparatus within the Bicker Drove interface area: protection
197 The undertaker must consult with Bicker Drove on the plans and formulation of the proposed method of working and timing of execution of any specified works within the Bicker Drove interface area, not less than 56 days prior to such works commencing and have regard to reasonable representations received from Bicker Drove made at least 28 days prior to such works commencing.
198 Where, as a direct result of the specified works within the Bicker Drove interface area, Bicker Drove requires any diversion or protective works to be carried out either by themselves or by the undertaker (whether of a temporary or permanent nature) such diversion or protective works must be carried out to Bicker Drove’s reasonable satisfaction prior to the commencement of any authorised development (or any relevant part thereof) for which diversion or protective works are required and Bicker Drove shallgive notice of its requirement for such works within 28 days of the date of first being consulted in accordance with paragraph 197 (retained apparatus within the Bicker Drove interface area: protection).
199 The undertaker must give to Bicker Drove not less than 28 days’ written notice of its intention to commence the construction of any specified works within the Bicker Drove interface area and, not more than 14 days after completion of their construction, must give Bicker Drove written notice of the completion.
200 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 within the Bicker Drove interface area, a new method of working and 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.
201 The undertaker must at all reasonable times during construction of any specified works within the Bicker Drove interface area allow Bicker Drove and its servants and agents reasonable facilities for inspection of such specified works.
Retained apparatus within the Bicker Drove stand-off area: protection
202 (1) Not less than 56 days before the commencement of any specified works within the Bicker Drove stand-off area, the undertaker must submit to Bicker Drove a plan of the works to be executed and seek from Bicker Drove details of the extent of their assets within the Bicker Drove stand-off area. In relation to the specified works within the Bicker Drove stand-off area the plan to be submitted to Bicker Drove under this paragraph must include a method statement which shows and describes—
(a) the exact position of the specified works within the Bicker Drove stand-off area;
(b) the level at which the specified works within the Bicker Drove stand-off area are proposed to be constructed or renewed;
(c) the manner of their construction or renewal within the Bicker Drove stand-off area including details of excavation, positioning of plant;
(d) the position of all apparatus within the Bicker Drove stand-off area;
(e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus within the Bicker Drove stand-off area;
(f) any intended maintenance regimes within the Bicker Drove stand-off area;
(g) an assessment of risks of rise of earth issues within the Bicker Drove stand-off area; and
(h) a ground monitoring scheme within the Bicker Drove stand-off area, where required.
(2) The undertaker must not commence any specified works within the Bicker Drove stand-off area to which sub-paragraph (1) applies until Bicker Drove has given written approval of the plan so submitted.
(3) Any approval of Bicker Drove required under sub-paragraph (2)—
(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (4) or (6); and
(b) must not be unreasonably withheld or delayed.
(4) In relation to any work to which this paragraph applies, Bicker Drove 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 within the Bicker Drove stand-off area and Bicker Drove must notify the undertaker of such modifications within a period of 56 days beginning with the date on which the plan required under sub-paragraph (1) has been submitted to Bicker Drove.
(5) Works executed under this paragraph must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and Bicker Drove and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (4) or (6) by Bicker Drove for the alteration or otherwise for the protection of the apparatus within the Bicker Drove stand-off area, or for securing access to it, and Bicker Drove will be entitled to watch and inspect the execution of those works within the Bicker Drove stand-off area.
(6) Where Bicker Drove requires any protective works within the Bicker Drove stand-off area 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 Bicker Drove’s satisfaction prior to the commencement of any specified works within the Bicker Drove stand-off area (or any relevant part thereof) for which protective works are required and Bicker Drove shall give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of the works within the Bicker Drove stand-off area for which a plan has been submitted for specified works within the Bicker Drove stand-off area (or part thereof), a new plan for such works, 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.
(8) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works within the Bicker Drove stand-off area as defined in the 1991 Act but in that case it must give to Bicker Drove notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (4), (5) and (6) insofar as is reasonably practicable in the circumstances.
Acquisition of land within the Bicker Drove stand-off area
203 (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 (a) appropriate or acquire or take temporary possession of any land or apparatus within the Bicker Drove stand-off area belonging to Bicker Drove or (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus, within the Bicker Drove stand-off area, belonging to Bicker Drove otherwise than by agreement (such agreement not to be unreasonably withheld or delayed).
(2) Any agreement or consent granted by Bicker Drove under paragraph 202 (retained apparatus within the Bicker Drove stand-off area: protection) or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).
Cooperation within the Bicker Drove stand-off area
204 (1) Where in consequence of the proposed construction of any part of the authorised works within the Bicker Drove stand-off area, Bicker Drove makes requirements for the protection or alteration of apparatus under paragraph 202 (retained apparatus: within the Bicker Drove stand-off area: protection), the undertaker shall use reasonable endeavours to coordinate 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 Bicker Drove’s undertaking and Bicker Drove shall use reasonable endeavours to cooperate with the undertaker for that purpose.
(2) For the avoidance of doubt whenever Bicker Drove’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
205 If in consequence of the exercise of powers granted under this Order access to the Bicker Drove land is materially obstructed, the undertaker must provide such alternative means of access to the Bicker Drove land as will enable Bicker Drove to operate and maintain its apparatus no less effectively than was possible before such obstruction.
Expenses
206 (1) Save where otherwise agreed in writing between Bicker Drove and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to Bicker Drove within 30 days of receipt of an itemised invoice or claim from Bicker Drove all charges, costs and expenses reasonably and properly incurred by Bicker Drove comprising the review of plans under this Part of this Schedule.
(2) Notwithstanding any other provision of this Part of this Schedule, Bicker Drove shall not be entitled to recover more than once in respect of the same loss, cost, expense, or liability arising out of or in connection with any matter for which the undertaker is liable under this Part of this Schedule or any related agreement.
(3) For the avoidance of doubt, where Bicker Drove is entitled to recover any sum under more than one provision of this Part of this Schedule or any related agreement in respect of the same loss, cost, expense, or liability, Bicker Drove shall only be entitled to recover such sum once.
Indemnity
207 (1) Subject to sub-paragraphs (2) to (6), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the specified works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, (including without limitation works carried out by the undertaker under this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus within the Bicker Drove land, the undertaker will bear and pay within 60 days of receipt of an invoice or claim from Bicker Drove the cost reasonably and properly incurred by Bicker Drove in making good such damage.
(2) The fact that any act or thing may have been done by Bicker Drove on behalf of the undertaker or in accordance with a plan reviewed by Bicker Drove pursuant to paragraph 4 or in accordance with any requirement of Bicker Drove or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Bicker Drove fails to carry out and execute the works properly with due care and attention and in a skillful and workmanlike 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 act, neglect or default of Bicker Drove, its officers, servants, contractors or agents; or
(b) 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) Bicker Drove must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability, compromise or demand must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.
(5) Bicker Drove 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) Bicker Drove 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 Bicker Drove’s reasonable ability and control to do so and if reasonably requested to do so by the undertaker Bicker Drove must provide an explanation of how the claim has been minimised, where relevant.
Arbitration
208 Any difference or dispute arising between Bicker Drove and the undertaker must, unless otherwise agreed in writing between Bicker Drove and the undertaker, be determined by arbitration in accordance with article 43 (arbitration) of the Order.
Propose a change