(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—
(a) by post;
(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or
(c) with the consent of the recipient and subject to paragraphs (5) to (8), by electronic transmission.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978 as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address and otherwise—
(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body, and
(b) in any other case, the last known address of that person at that time of service.
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having an interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—
(a) addressing it to that person by the description of “owner”, or as the case may be “occupier” of the land (describing it); and
(b) either leaving it in the hands of the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—
(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;
(b) the notice or document is capable of being accessed by the recipient;
(c) the notice or document is legible in all material respects; and
(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.
(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within seven days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.
(7) Any consent to the use of an electronic transmission by a person may be revoked by that person in accordance with paragraph (8).
(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—
(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and
(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than seven days after the date on which the notice is given.
(9) This article does not exclude the employment of any method of service not expressly provided for by it.
(10) In this article “legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.
(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed in writing between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the Upper Tribunal or which falls to be determined under paragraph (20) (appeals) of Schedule 2 to this Order) must be resolved in accordance with this article.
(2) The parties must use reasonable endeavours to settle any difference to which paragraph (1) applies through negotiations undertaken in good faith by senior representatives of the parties.
(3) Any difference which is not resolved to the satisfaction of the parties under paragraph (2) within ten business days of the dispute arising (or such longer period as may be agreed) must be referred to and settled by arbitration in accordance with the rules set at Schedule 14 (arbitration rules) by a single arbitrator to be agreed between the parties, within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on the application of either party (after giving notice in writing to the other) by the Secretary of State.
(4) Any matter for which the consent or approval of the Secretary of State is required under any provision of this Order is not subject to arbitration.
(1) Where an application or request is submitted to the local planning authority or any other relevant person for any consent, agreement or approval required or contemplated by any of the provisions of this Order, such consent, agreement or approval, must, to be validly given, be given in writing.
(2) Where paragraph (1) applies to any consent, agreement or approval, such consent, agreement or approval must not be unreasonably withheld.
(3) Part 2 (procedure for discharge of requirements) of Schedule 2 (requirements) has effect in relation to all agreements or approvals granted, refused or withheld in relation to requirements included in Part 1 (requirements) of that Schedule, and any document referred to in any requirement in that Part 1.
(1) The undertaker must not exercise the powers conferred by the provisions referred to in paragraph (2) in relation to any Order land unless it has first put in place either—
(a) a guarantee and the amount of that guarantee approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation in accordance with the provisions referred to in paragraph (2) in relation to that land; or
(b) an alternative form of security and the amount of that security for that purpose approved by the Secretary of State in respect of the liabilities of the undertaker to pay compensation in accordance with the provisions referred to in paragraph (2) in relation to that land.
(2) The provisions are—
(a) article 21 (compulsory acquisition of land);
(b) article 24 (compulsory acquisition of rights and imposition of restrictive covenants);
(c) article 25 (private rights over land);
(d) article 28 (acquisition of subsoil only);
(e) article 30 (rights under or over streets);
(f) article 31 (temporary use of land for carrying out the authorised development)
(g) article 32 (temporary use of land for maintaining the authorised development); and
(h) article 33 (statutory undertakers).
(3) A guarantee or alternative form of security given in respect of any liability of the undertaker to pay compensation under this Order is to be treated as enforceable against the guarantor or person providing the alternative form of security by any person to whom such compensation is payable and must be in such a form as to be capable of enforcement by such a person.
(4) Nothing in this article requires a guarantee or alternative form of security to be in place for more than 15 years after the date on which the relevant power is exercised.
Article 3
1 In this Schedule—
“electrical cables” means—
cables of differing types and voltages installed for the purposes of conducting electricity, auxiliary cables, cables connecting to direct current (DC) boxes, earthing cables and optical fibre cables; and
works connected with cable laying including excavations, storage of excavated material, jointing pits, hardstanding adjoining the jointing pits, combiner boxes, fibre bays, cable ducts, cable protections, joint protection, manholes, kiosks, marker posts, underground cable marker, tiles and tape, send and receive pits for horizontal directional drilling, trenching, lighting, and a pit or container to capture fluids associated with drilling;
“inverter” means electrical equipment required to convert direct current (DC) power generated by the solar pv panels to alternating current (AC);
“mounting structure” means a frame or rack designed to support the solar pv panels and inverters, affixed to the ground via posts;
“power conversion system” means inverters and transformers required to step up low voltage (LV) inverter AC output to medium voltage (MV) and would be either—
central inverter being a station comprising a combined inverter-transformer equipment with or without housing on a foundation; or
string inverters attached either to mounting structures or a frame and standalone transformers with or without housing on concrete foundation;
“solar pv panel” means a solar photovoltaic panel designed to convert solar irradiance to DC electrical energy; and
“transformer” means equipment required to transform electricity including inverter-transformers, auxiliary transformers, collector transformers, voltage regulators, and earthing transformers.
2 In the administrative area of Cumberland Council a nationally significant infrastructure project as defined in sections 14 and 15 of the 2008 Act and associated development under section 115 of the 2008 Act.
The nationally significant infrastructure project comprises all or part of the following works—
Work No. 1 — a ground mounted solar photovoltaic generating station with a gross electrical output capacity of over 50 megawatts including—
(a) solar pv panels;
(b) mounting structures; and
(c) power conversion system,
and associated development within the meaning of section 115(2) of the 2008 Act comprising—
Work No. 2 — grid connection infrastructure comprising—
(a) up to two substation buildings;
(b) a control building;
(c) Point of Connection (‘POC’) compound comprising external electrical equipment including transformers, relays, circuit breakers and harmonic filters and ancillary infrastructure;
(d) communication mast;
(e) security fencing; and
(f) electrical cables.
Work No. 2A — up to two POC masts.
Work No. 3 — works including—
(a) electrical cables including connecting equipment within Work No. 1 and within Work No. 2 and connecting Works Nos. 1 and 2 to one another;
(b) fencing, gates, boundary treatment and other means of enclosure;
(c) improvement, maintenance and use of existing private tracks;
(d) laying down of internal access tracks, ramps, means of access, permissive paths, crossing of watercourses, culverts, and roads, including the laying and construction of drainage infrastructure, temporary traffic management measures including traffic lights and signage and information boards;
(e) works for the provision of security and monitoring measures such as CCTV columns, lighting columns and lighting, cameras, communication infrastructure, and perimeter fencing;
(f) monitoring, communications and control systems;
(g) electrical vehicle charging points;
(h) operation and maintenance units including storage, welfare and site management;
(i) works, improvements or extensions to the existing drainage and irrigation system and works to alter the position and extent of such irrigation system;
(j) landscaping and biodiversity mitigation and enhancement measures including planting;
(k) site drainage and waste management infrastructure including underground pipework, watercourse outfalls, sub-bases, filter drains, swales and attenuation tanks;
(l) working sites in connection with the construction, maintenance and decommissioning of the authorised development, lay down areas and compounds, storage compounds and their restoration; and
(m) noise attenuation works including acoustic barrier.
Work No. 4 — up to five temporary construction compounds including—
(a) site entry security stations;
(b) areas of hardstanding;
(c) parking;
(d) areas for vehicle loading, unloading and turning;
(e) site management offices, welfare facilities, canteens and workshops;
(f) safety and security infrastructure, including signage, cameras, fencing, gates and lighting; and
(g) areas to store materials, plant, machinery, equipment and waste.
Work No. 5 — works to facilitate vehicular access for all works, including—
(a) enhancement of accesses from the street;
(b) visibility splays;
(c) works to widen and surface the street and private means of access; and
(d) installation of temporary traffic management measures including traffic lights and signs
Work No. 6 — works to create, enhance and maintain green infrastructure, including—
(a) landscape and biodiversity mitigation and enhancement measures including planting and improvement of existing features;
(b) habitat creation and management including, earth works including embankments, landscaping;
(c) construction of drainage infrastructure;
(d) watercourse enhancements;
(e) maintenance of existing access routes and laying down of permissive paths, signage and information boards; and
(f) fencing, gates, boundary treatment and other means of enclosure.
In connection with, and in addition to Works Nos. 1 to 6 further associated development comprising—
(a) alteration of the layout of any street permanently or temporarily, including increasing or reducing the width of the carriageway;
(b) street works, including breaking up or opening a street, or any sewer, drain or tunnel under it, and tunnelling or boring under a street;
(c) relocation, removal or provision of new road traffic signs, signals, street lighting, road restraints and carriageway lane markings;
(d) works to place, alter, remove or maintain street furniture or apparatus (including statutory undertakers’ apparatus) in, under or above a street, including mains, sewers, drains, pipes, cables, cofferdams, lights, fencing and other boundary treatments;
(e) works to facilitate traffic management and to deliver information relating to the authorised development;
(f) laying down, maintenance and repair of internal access tracks, ramps, means of access, footpaths and permissive paths including the laying and construction of drainage infrastructure, signage and information boards;
(g) bunds, embankments, trenching and swales;
(h) fencing, gates, boundary treatments and other means of enclosure;
(i) works, improvements or extensions to the existing drainage and irrigation system and works to alter the position and extent of such irrigation system;
(j) surface water drainage systems, storm water attenuation systems including storage basins, oil water separators, including channelling and culverting and works to existing drainage networks;
(k) electrical, gas, water, foul water drainage and telecommunications infrastructure connections, diversions and works to, and works to alter the position of, such services and utilities connections;
(l) works for the provision of security and monitoring measures such as CCTV columns, lighting columns and lighting, cameras, weather stations, communication infrastructure, and perimeter fencing;
(m) habitat creation and management, including earthworks, landscaping, means of enclosure, and the laying and construction of drainage infrastructure;
(n) jointing bays, cable ducts, cable protection, joint protection, manholes, kiosks, marker posts, underground cable marker, tiles and tape, and lighting and other works associated with cable laying;
(o) landscaping and biodiversity mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;
(p) works for the benefit or protection of land affected by the authorised development;
(q) working sites in connection with the construction, maintenance and decommissioning of the authorised development, construction lay down areas and compounds, storage compounds and their restoration, improvement, strengthening, reconstruction, maintenance and use of existing streets, private tracks and access roads;
(r) temporary footpath diversions and footpath enhancement;
(s) site establishments and preparation works including site clearance (including vegetation removal, demolition of existing buildings and structures); coal mine remediation works; earthworks (including soil stripping and storage and site levelling) and excavations; the alteration of the position of services and utilities; and works for the protection of buildings and land;
(t) tunnelling, boring and drilling works;
(u) works required for crossing, moving re-routing or over/undergrounding of existing utility assets (including water, gas, sewer pipes, electricity distribution/transmission cabling, telecommunications etc.); and
(v) earthworks;
and further associated development comprising such other works or operations as may be necessary or expedient for the purposes of or in connection with the construction, operation, maintenance and decommissioning of the authorised development insofar as they are unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.
Article 3
PART 1 REQUIREMENTS
Interpretation
1 In this Schedule—
“archaeological mitigation strategy” means the document certified by the Secretary of State under article 39 as the archaeological mitigation strategy for the purposes of this Order;
“CEMP” means the construction environmental management plan;
“CTMP” means the construction traffic management plan;
“design parameters document” means the document certified by the Secretary of State under article 39 as the design parameters document for the purposes of this Order;
“DMP” means the decommissioning management plan;
“framework DMP” means the document certified by the Secretary of State under article 39 as the framework decommissioning management plan for the purposes of this Order;
“LEMP” means the landscape and ecological management plan;
“LEP” means the landscape and ecology plan;
“LSP” means the document certified by the Secretary of State under article 39 as the landscape strategy plan for the purposes of this Order;
“OMP” means the operational management plan;
“outline CEMP” means the document certified by the Secretary of State under article 39 as the outline construction environmental management plan for the purposes of this Order;
“outline CTMP” means the document of that description certified by the Secretary of State under article 39 as the outline construction traffic management plan for the purposes of this Order;
“outline drainage strategy” means section 8 of the flood risk assessment and outline drainage strategy which forms part of the document certified by the Secretary of State under article 39 as the outline drainage strategy for the purposes of this Order;
“outline LEMP” means the document certified by the Secretary of State under article 39 as the outline landscape and ecological management plan for the purposes of this Order;
“outline OMP” means the document certified by the Secretary of State under article 39 as the outline operational management plan for the purposes of this Order; and
“outline soil management plan” means the document certified by the Secretary of State under article 39 as the outline soil management plan for the purposes of this Order.
Time limits
2 (1) The authorised development must commence no later than the expiration of five years beginning with the date that this Order comes into force.
Detailed design approval
3 (1) No part of the authorised development may commence until details of—
(a) the layout;
(b) scale;
(c) proposed finished ground levels;
(d) external appearance;
(e) hard surfacing materials;
(f) drainage, water, power and communications cables and pipelines; and
(g) vehicular and pedestrian access, parking and circulation areas,
relating to that part have been submitted to and approved in writing by the local planning authority.
(2) The details submitted must accord with the design parameters document unless it can be demonstrated to the satisfaction of the local planning authority that the subject matter of the approval sought would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.
(3) The authorised development must be carried out in accordance with the approved details.
(4) Sub-paragraph (1) does not apply to the matters listed under sub-paragraph (1)(f) if consent has already been given to the details of those works in accordance with articles 12 (power to alter layout, etc. of streets), 13 (construction and maintenance of altered streets) or 15 (access to works).
Construction environmental management plan
4 (1) No part of the authorised development may commence until a CEMP for that part has been submitted to and approved by the local planning authority following consultation by the undertaker with the Mining Remediation Authority, Environment Agency, and Natural England.
(2) Any CEMP submitted must include a commitment to regularly share all relevant pre-construction, construction, and post-construction/operational survey and monitoring data in the appropriate formats with the relevant Local Environmental Records Centre(s) and relevant national/regional environmental recording schemes.
(3) Any CEMP submitted for approval under sub-paragraph (1) must be in accordance with the outline CEMP.
(4) The construction of any part of the authorised development must be carried out in accordance with the approved CEMP for that part.
(5) The plan submitted and approved pursuant to sub-paragraph (1) must include a site waste management plan that must be in accordance with the framework site waste management plan and must be implemented as approved.
Construction traffic management plan
5 (1) No part of the authorised development may commence until a CTMP for that part has been submitted to and approved by the local planning authority following consultation by the undertaker with the local highway authority and National Highways on matters relevant to their functions.
(2) Any CTMP submitted for approval under sub-paragraph (1) must be in accordance with the outline CTMP.
(3) The construction of any part of the authorised development must be carried out in accordance with the CTMP approved for that part.
Landscaping design
6 (1) No part of the authorised development containing landscaping mitigation may commence until a LEP which relates to that part has been submitted to and approved in writing by the local planning authority.
(2) The LEP approved under sub-paragraph (1) must be in accordance with the principles set out in the LSP, and must include details of—
(a) location, number, species mix, size and planting density of any proposed planting; and
(b) existing vegetation to be retained.
(3) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards, other recognised codes of good practice and in line with the requirements of any environmental permit applicable to the works.
(4) The authorised development must be constructed in accordance with the LEP approved under sub-paragraph (1) and thereafter maintained in accordance with the relevant LEMP for that part approved under paragraph 7.
Landscape and ecological management plan
7 (1) No part of the authorised development may commence until a LEMP for that part has been submitted to and approved by the local planning authority following consultation by the undertaker with Natural England.
(2) Any LEMP submitted for approval under sub-paragraph (1) must be in accordance with the outline LEMP and must demonstrate how a minimum biodiversity net gain of 60% for area habitat units, 20% for hedgerow units and 5% for watercourse units, calculated using the Department of Environment Food and Rural Affairs’ Statutory Biodiversity Metric (February 2024), or if this is withdrawn or replaced, a biodiversity metric approved by the local planning authority in consultation with the relevant statutory nature conservation body, will be delivered.
(3) Any LEMP submitted must include a commitment to regularly share all relevant pre-construction, construction, and post-construction/operational survey and monitoring data in the appropriate formats with the relevant Local Environmental Records Centre(s) and relevant national/regional environmental recording schemes.
(4) Any LEMP approved under sub-paragraph (1) must be implemented as approved and maintained throughout the operation of the relevant part of the authorised development to which the LEMP relates.
Fencing and other means of enclosure
8 (1) No part of the authorised development may commence until written details of any proposed temporary fences, walls or other means of enclosure for that part have been submitted to and approved by the local planning authority.
(2) No part of the authorised development may commence until written details of any proposed permanent fences, walls or other means of enclosure for that part have been submitted to and approved by the local planning authority.
(3) Any construction site must remain securely fenced in accordance with the approval details under sub-paragraphs (1) and (5) at all times during construction of the part of the authorised development for which it was used.
(4) Any temporary fencing must be removed on completion of the construction of the part of the authorised development for which it was used.
(5) In the event that temporary fences, walls or other means of enclosure are required for the permitted preliminary works, no permitted preliminary works may take place until written details of all proposed temporary fences, walls or other means of enclosure required for such works have been submitted to and approved by the local planning authority.
(6) Prior to the date of final commissioning of the authorised development, any permanent fencing, walls or other means of enclosure approved under sub-paragraph (2) must be completed and properly maintained for the operational lifetime of that part of the authorised development.
Surface water drainage strategy
9 (1) No part of the authorised development may commence until written details of the surface water drainage strategy (including means of pollution control) for that part have been submitted to and approved by the local planning authority following consultation by the undertaker with the lead relevant flood authority and the Environment Agency.
(2) The written details under sub-paragraph (1) must be in accordance with the outline drainage strategy.
(3) Any approved strategy must be implemented as approved.
Archaeology
10 (1) No part of the authorised development may commence until a written scheme of investigation for the investigation of areas of archaeological interest within that part has been submitted to and approved by the local planning authority.
(2) Any written scheme of investigation submitted for approval under sub-paragraph (1) must be in accordance with the archaeological mitigation strategy.
(3) Any archaeological works or programme of archaeological investigation must be carried out in accordance with the written scheme of investigation approved under sub-paragraph (1) for the duration of the works in the part of the authorised development to which the written scheme of investigation relates.
(4) For the purposes of sub-paragraph (1) “commence” includes any intrusive archaeological surveys (including trenching).
Soil management plan
11 (1) No part of the authorised development may commence until a soil management plan for that part has been submitted to and approved by the local planning authority following consultation by the undertaker with Natural England and Mining Remediation Authority.
(2) Any soil management plan submitted for approval under sub-paragraph (1) must be in accordance with the outline soil management plan.
(3) The construction of any part of the authorised development must be carried out in accordance with the approved soil management plan for that part.
Operational management plan
12 (1) Prior to the date of final commissioning for any part of the authorised development, an OMP for that part must be submitted to and approved by the local planning authority.
(2) Any OMP submitted for approval under sub-paragraph (1) must be in accordance with the outline OMP.
(3) The operation of the authorised development must be carried out in accordance with the approved OMP for that part.
Operational noise
13 (1) No part of Work No. 1 may be operational until a noise assessment demonstrating that Work No. 1 will not have a significant operational noise effect for that part has been submitted to and approved by the local planning authority.
(2) The design as modelled in the noise assessment must be implemented as approved and maintained throughout the operation of the relevant part of the authorised development to which the plan relates.
Decommissioning and restoration
14 (1) Unless otherwise agreed with the local planning authority no later than 6 months prior to the intended date of decommissioning of any part of the authorised development, the undertaker must submit to the local planning authority for approval a DMP for that part.
(2) Decommissioning must commence no later than 40 years following the date of final commissioning.
(3) Any DMP submitted and approved under sub-paragraph (1) must be in accordance with the framework DMP.
(4) Any DMP submitted and approved under sub-paragraph (1) must be implemented as approved.
(5) This requirement is without prejudice to any other consents or permissions that may be required to decommission any part of the authorised development.
Requirement for written approval
15 Where under any of the requirements the approval, agreement or confirmation of the Secretary of State, local planning authority or another person is required, that approval, agreement or confirmation must be given in writing.
Amendments to approved details
16 (1) The undertaker must submit any amendments to the approved documents to the local planning authority for approval and, following approval, the relevant approved document is to be taken to include the amendments as approved under this paragraph.
(2) Approval under sub-paragraph (1) for the amendments to any approved document, may not be given except where it has been demonstrated to the satisfaction of the local planning authority that the subject matter of the approval sought is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.
(3) In this paragraph, “approved document” means any document certified under article 39 (certification of documents, etc) and any plans, details or schemes which have been approved pursuant to any requirement.
Consultation
17 In relation to any provision of this Schedule requiring details to be submitted to the local planning authority for approval following consultation by the undertaker with another party, the undertaker must provide such other party with not less than 21 business days for any response to the consultation and thereafter the details submitted to the Secretary of State for approval must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted including copies of any representations made by a consultee about the proposed application and the undertaker’s response to those representations.
PART 2 PROCEDURE FOR DISCHARGE OF REQUIREMENTS
Applications made under Part 1
18 (1) Where an application has been made to the local planning authority for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement included in this Order), the local planning authority must give notice to the undertaker of its decision on the application within a period of 56 days beginning with the later of—
(a) the day immediately following that on which the application is received by the local planning authority;
(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 19 (further information regarding requirements); or
(c) such other period that is agreed in writing between the undertaker and the local planning authority.
(2) In determining any application made to the local planning authority for any consent, agreement or approval required by a requirement included in this Order, the local planning authority may—
(a) give or refuse its consent, agreement or approval; or
(b) give its consent, agreement or approval subject to reasonable conditions,
and where consent, agreement or approval is refused or granted subject to conditions the local planning authority must provide its reasons for that decision with the notice of the decision.
(3) In the event that the local planning authority does not determine an application within the period set out in sub-paragraph (1), the local planning authority is deemed to have granted all parts of the application (without any condition or qualification) at the end of that period.
(4) For deemed consent under sub-paragraph (3) to apply to any application for consent under sub-paragraph (1), the application must include a statement that the provisions of sub-paragraph (3) apply to that application.
(5) If an application for consent under sub-paragraph (1) does not include the statement required under paragraph (4), then the provisions of sub-paragraph (3) will not apply to that application.
Further information regarding requirements
19 (1) In relation to any application made under this Schedule 2, the local planning authority may request such further information from the undertaker as it considers necessary to enable it to consider the application.
(2) In the event the local planning authority considers such further information to be necessary and the requirement concerned contained in Part 1 of this Schedule does not specify that consultation with a consultee is required, the local planning authority must, within 15 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates.
(3) In the event that the local planning authority does not give such notification within the period specified in sub-paragraph (2) or (4) the local planning authority (and the consultee, as the case may be) is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.
(4) If the requirement concerned contained in Part I of this Schedule specifies that a consultation with a consultee is required, the local planning authority must issue the application to the consultee within 14 days of receipt of the application, and notify the undertaker in writing specifying any further information requested by the consultee within 14 days of receipt of such a request.
Appeals
20 (1) The undertaker may appeal to the Secretary of State in the event that the local planning authority—
(a) refuses an application for any consent, agreement or approval required by a requirement included in this Order or grants it subject to conditions;
(b) issues a notice further to sections 60 (control of noise on construction sites) or 61 (prior consent for work on construction sites) of the 1974 Act;
(c) on receipt of a request for further information under paragraph 19, the undertaker considers that either the whole or part of the specified information requested by the local planning authority is not necessary for consideration of the application; or
(d) on receipt of any further information requested under paragraph 19, the local planning authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.
(2) The appeal process applicable under sub-paragraph (1) is as follows—
(a) any appeal by the undertaker must be made within 42 days of the date of the notice of the decision;
(b) the undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the local planning authority;
(c) the Secretary of State must appoint a person to consider the appeal (“the appointed person”) as soon as is practicable after the submission under sub-paragraph (b) and must notify the appeal parties of the identity of the appointed person, a start date and the address to which all correspondence for their attention should be sent;
(d) the local planning authority must submit their written representations to the appointed person in respect of the appeal within 15 business days of the start date and must ensure that copies of their written representations and any other representations as sent to the appointed person are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;
(e) the applicant must make any counter-submissions to the appointed person within ten business days of receipt of written representations under sub-paragraph (d); and
(f) the appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable but in any event no longer than 30 business days from receipt of counter-submissions under sub-paragraph (e).
(3) The appointment of the appointed person under sub-paragraph (2)(c) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.
(4) In the event that the appointed person considers that further information is necessary to enable the appointed person to consider the appeal the appointed person must as soon as practicable notify the appeal parties in writing specifying the further information required, the appeal party from whom the information is sought, and the date by which the information is to be submitted.
(5) Any further information required under sub-paragraph (4) must be provided by the party from whom the information is sought to the appointed person and to the other appeal parties by the date specified by the appointed person.
(6) The appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day.
(7) The revised timetable for the appeal must require submission of written representations to the appointed person within 10 business days of the agreed date but must otherwise be in accordance with the process and time limits set out in sub-paragraphs (2)(c) to (f).
(8) On an appeal under this paragraph, the appointed person may—
(a) allow or dismiss the appeal; or
(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to the appointed person in the first instance.
(9) The appointed person may proceed to a decision on an appeal taking into account such written representations as have been sent within the relevant time limits and in the sole discretion of the appointed person such written representations as have been sent outside of the relevant time limits.
(10) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.
(11) The decision of the appointed person on an appeal is final and binding on the parties unless proceedings are brought by a claim for a judicial review.
(12) Except where a direction is given under sub-paragraph (13) requiring some or all the costs of the appointed person to be paid by the local planning authority, the reasonable costs of the appointed person must be met by the undertaker.
(13) The appointed person may give directions as to the costs of the appeal and as to the parties by whom the costs are to be paid.
(14) In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to relevant guidance on planning appeals and award costs published in Planning Practice Guidance: Appeals (March 2024) or any circular or guidance which may from time to time replace it.
Fees
21 (1) Where an application is made to the local planning authority for written consent, agreement or approval in respect of a requirement, the fee prescribed under regulation 16(1)(b) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (as may be amended or replaced from time to time) is to apply and must be paid to the local planning authority for each application.
(2) Any fee paid under this Schedule must be refunded to the undertaker within four weeks of—
(a) the application being rejected as invalidly made; or
(b) the local planning authority failing to determine the application within the relevant period in paragraph 18(1) unless—
(i) within that period the undertaker agrees, in writing, that the fee is to be retained by the local planning authority and credited in respect of a future application; or
(ii) a longer period of time for determining the application has been agreed under paragraph 18 of this Schedule.
Article 8
1 The following provisions do not apply in so far as they relate to the construction of any numbered work or the carrying out of any operation required for the purpose of, or in connection with, the construction, operation, maintenance or decommissioning of the authorised development—
(a) Cumbria Act 1982;
(b) Dean (Cumberland) Inclosure Act 1809;
(c) Whitehaven, Cleator and Egremont Railway Act 1854;
(d) Whitehaven, Cleator and Egremont Railway Act 1861;
(e) Whitehaven, Cleator and Egremont Railway Act 1863;
(f) Whitehaven, Cleator and Egremont Railway Act 1865;
(g) Whitehaven, Cleator and Egremont Railway Act 1875;
(h) Whitehaven, Cleator and Egremont Railway Act 1876;
(i) Whitehaven, Cleator and Egremont Railway Act 1877;
(j) Workington and Winscales Inclosures Act 1809.
Article 10
(1) Street | (2) Extent of street works
(U2186 101) Gilgarran Road | Between points SW/1 and SW/2 hatched blue on sheet 2 of the streets and access plans
(U2186 101) Gilgarran Road | Between points SW/3 and SW/4 hatched blue on sheet 2 of the streets and access plans
Article 12
(1) Street subject to alteration of layout | (2) Description of alteration
C2054 103 Branthwaite Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/1 to AS/2 shaded purple on sheet 1 of the streets and access plans
C2054 102 Branthwaite Edge Road | Works for the provision of temporary signage within the area shown as AS/3 to AS/4 shaded purple on sheets 1 and 2 of the streets and access plans
U2186 101 Gilgarran Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/5 to AS/6 shaded purple on sheet 2 of the streets and access plans
U2186 101 Gilgarran Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/7 to AS/8 shaded purple on sheet 2 of the streets and access plans
U2186 101 Gilgarran Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/9 to AS/10 shaded purple on sheet 2 of the streets and access plans
C2054 102 Branthwaite Edge Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/11 to AS/12 shaded purple on sheet 2 of the streets and access plans
C2054 102 Branthwaite Edge Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/13 to AS/14 shaded purple on sheets 2 and 3 of the streets and access plans
C2054 102 Branthwaite Edge Road | Works to enhance the existing means of access to the authorised development within the area shown as AS/15 to AS/16 shaded purple on sheet 3 of the streets and access plans
SCHEDULE 6 STREETS TO BE TEMPORARILY CLOSED OR RESTRICTED
Article 14
(1) Street to be temporarily stopped up | (2) Extent of temporary closure
U2186 101 Gilgarran Road | Temporarily closed or restricted for the length shown between point TSC/1 and TSC/2 hatched yellow on sheet 1 of the traffic regulation measures plan
Article 15
(1) Street | (2) Description of means of access
C2054 103 Branthwaite Road | Existing access to be improved within the area shown as A/1 shaded pink on sheet 1 of the streets and access plans
U2186 101 Gilgarran Road | Existing access to be improved within the area shown as A/2 shaded pink on sheet 2 of the streets and access plans
C2054 102 Branthwaite Edge Road | Existing access to be improved within the area shown as A/3 shaded pink on sheet 2 of the streets and access plans
U2186 101 Gilgarran Road | Existing access to be improved within the area shown as A/4 shaded pink on sheet 2 of the streets and access plans
U2186 101 Gilgarran Road | Existing access to be improved within the area shown as A/5 shaded pink on sheet 2 of the streets and access plans
C2054 102 Branthwaite Edge Road | Existing access to be improved within the area shown as A/6 shaded pink on sheet 3 of the streets and access plans
C2054 102 Branthwaite Edge Road | Existing access to be improved within the area shown as A/7 shaded pink on sheet 3 of the streets and access plans
U2186 101 Gilgarran Road | Existing access to be improved within the area shown as A/8 shaded pink on sheet 2 of the streets and access plans
U2186 101 Gilgarran Road | Existing access to be improved within the area shown as A/9 shaded pink on sheet 2 of the streets and access plans
Article 17
(1) Street | (2) Extent of temporary measure | (3) Temporary traffic regulation measure
U2186 101 Gilgarran Road | For the length shown between point TRO/01 and TRO/02 on sheet 1 of the traffic regulation measures plan | Temporary 30mph speed limit
SCHEDULE 9 LAND IN WHICH ONLY NEW RIGHTS ETC. MAY BE ACQUIRED
Article 24
(1) Number of Plot number shown on land plan | (2) Purpose for which rights may be acquired or restrictive covenants may be imposed
1-09, 1-17, 1-21, 1-31, 1-40, 1-43 and 4-12 | Provision of access for authorised development
1-70, 1-71, 2-01 and 2-02 | Installation of electricity cable underground and the rights and restrictive covenants to construct, protect, operate, access and maintain that cable
SCHEDULE 10 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR THE CREATION OF NEW RIGHTS AND IMPOSITION OF NEW RESTRICTIVE COVENANTS
Article 24
Compensation enactments
1 The enactments for the time being in force with respect to compensation for the compulsory purchase of land are to apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant as they apply as respects compensation on the compulsory purchase of land and interests in land.
2 (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973 has effect subject to the modifications set out in sub-paragraph (2).
(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5—
(a) for the words “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from”; and
(b) for the words “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.
3 (1) Without limitation on the scope paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).
(2) For section 5A(5A) (relevant valuation date) of the 1961 Act, after “if” substitute—
(a) the acquiring authority enters on land for the purpose of exercising a right in accordance with a notice of entry under section 11(1) of the 1965 Act(as modified by paragraph 7 of Schedule 10 (modification of compensation and compulsory purchase enactments for the creation of new rights and imposition of new restrictive covenants) to the Dean Moor Solar Farm Order 2026;
(b) the acquiring authority is subsequently required by a determination under paragraph 13 of Schedule 2A to the 1965 Act (as substituted by paragraph 9 of Schedule 10 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants) to the Dean Moor Solar Farm Order 2026) to acquire an interest in the land; and
(c) the acquiring authority enters on and takes possession of that land,
the authority is deemed for the purposes of subsection (3)(a) to have entered on that land where it entered on that land for the purpose of exercising that right.
.
Application of the 1965 Act
4 The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right, or to the imposition under this Order of a restrictive covenant, as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are read (according to the requirements of the particular context) as referring to, or as including references—
(a) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or
(b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.
(2) Without limiting sub-paragraph (1), Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right or, in relation to the imposition of a restrictive covenant, with the modifications specified in the following provisions of this Schedule.
5 For section 7 (measure of compensation in case of severance) of the 1965 Act substitute—
7. In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.
.
6 The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—
(a) section 9(4) (failure by owners to convey);
(b) paragraph 10(3) of Schedule 1 (owners under incapacity);
(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and
(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),
are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.
7 Section 11 (powers of entry) of the 1965 Act is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 21 (compulsory acquisition of land)), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant (which is deemed for this purpose to have been created on the date of service of the notice); and sections 11A (powers of entry: further notices of entry), 11B (counter-notice requiring possession to be taken on specified date), 12 (unauthorised entry) and 13 (refusal to give possession to acquiring authority) entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.
8 Section 20 (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.
9 Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 29(4) (modification of Part 1 of the Compulsory Purchase Act 1965) is so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or restrictive covenant imposed, subject to compliance with that section as respects compensation.
10 For Schedule 2A (counter-notice requiring purchase of land not in notice to treat) of the 1965 Act substitute—
SCHEDULE2A
COUNTER-NOTICE REQUIRING PURCHASE OF LAND
Introduction
1. (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 27 (application of the 1981 Act) and article 31 (modification of the 2017 Regulations) in respect of the land to which the notice to treat relates.
(2) But see article 28(3) (acquisition of subsoil only) of the Dean Moor Solar Farm Order 2026 which excludes the acquisition of subsoil only from this Schedule.
2. In this Schedule, “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
3. A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.
4. A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.
Response to counter-notice
5. On receiving a counter-notice, the acquiring authority must decide whether to—
(a) withdraw the notice to treat,
(b) accept the counter-notice, or
(c) refer the counter-notice to the Upper Tribunal.
6. The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
7. If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.
8. If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.
9. If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.
Determination by Upper Tribunal
10. On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—
(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or
(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
11. In making its determination, the Upper Tribunal must take into account—
(a) the effect of the acquisition of the right or the imposition of the covenant,
(b) the use to be made of the right or covenant proposed to be acquired or imposed, and
(c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
12. If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.
13. If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.
14. (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.
(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.
.
SCHEDULE 11 LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN
Article 31
(1) Number of plot shown on land plan | (2) Purpose for which temporary possession may be taken
1-01, 1-02, 1-03, 1-10, 1-47, 1-48, 1-49, 1-50, 1-51, 1-52, 1-53, 1-54, 1-55, 1-56, 1-57, 1-58, 1-59, 1-60, 1-61, 1-62, 1-63, 1-64, 1-65, 1-66 and 4-04 | Temporary use (including access) for the purposes of Work No. 3 and to facilitate the carrying out of Works Nos. 1 to 6
1-04, 1-05, 1-06, 1-07, 1-08, 1-68, 1-69, 1-72, 1-73, 2-03, 2-04, 2-05, 2-06, 2-07, 2-11, 4-01, 4-02, 4-03, 4-05 and 4-06 | Temporary use (including access) for the purposes of Works Nos. 3 and 5 and to facilitate the carrying out of Works Nos. 1 to 6
Article 43
PART 1 FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS
1 For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.
2 In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by that utility undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986 for the purposes of gas supply;
in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; and
in the case of a sewerage undertaker—
any drain or works vested in the utility 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 of works) of that Act or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewage disposal works, at a future date) of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any inspection chambers, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land;
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;
“utility undertaker” means—
any licence holder within the meaning of Part 1 of the Electricity Act 1989;
a gas transporter within the meaning of Part 1 of the Gas Act 1986;
a water undertaker within the meaning of the Water Industry Act 1991; and
a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,
for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
On street apparatus
3 This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.
Apparatus in closed streets
4 Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 14 (temporary closure or restriction of streets), a utility 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 or desirable 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 plan, the undertaker must not acquire any apparatus otherwise than by agreement.
Removal of apparatus
6 (1) If, 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 utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility 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 utility undertaker in question in accordance with sub-paragraphs (2) to (6).
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed the utility undertaker 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 utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 41 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 41 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-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 the undertaker gives notice in writing to the utility undertaker in question that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
Facilities and rights for alternative apparatus
7 (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 the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 41 (arbitration).
(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Retained apparatus
8 (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2), the undertaker must submit to the utility undertaker in question a plan and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.
(4) If a utility undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(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 unless otherwise agreed with the utility undertaker, a new plan and description 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 the utility undertaker in question notice as soon as is reasonably practicable and a plan and description 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.
Expenses and costs
9 (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2).
(2) There must be deducted from any sum payable under subparagraph (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 41 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a) an extension of apparatus to a length greater than the length of existing apparatus 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 an inspection chamber 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 a utility undertaker in respect of works by virtue of sub-paragraph (1), if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.
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(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—
(a) bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker 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.
Cooperation
11 Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility 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 2003 Act” means the Communications Act 2003;
“electronic communications apparatus” has the same meaning as in the electronic communications code;
“the electronic communications code” has the same meaning as in section 106 (application of the electronic code) of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (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; and
“operator” means the operator of an electronic communications code network.
14 The exercise of the powers conferred by article 33 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.
15 (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—
(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 those works), or other property of an operator; or
(b) there is any interruption in the supply of the service provided by an operator,
the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker 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.
(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 41 (arbitration).
(5) 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 damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.
(6) 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 laid or erected in land belonging to the undertaker on the date on which this Order is made.
PART 3 FOR THE PROTECTION OF DRAINAGE AUTHORITIES
16 The provisions of this Part have effect for the protection of a drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority.
17 In this Part—
“construction” includes execution, placing, altering, replacing, relaying and removal; and “construct” and “constructed” must be construed accordingly;
“drainage authority” means in relation to an ordinary watercourse—
the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991; and
in the case of any area for which there is no such drainage board, the lead local flood authority within the meaning of section 6 (other definitions) of the Flood and Water Management Act 2010(b);
“drainage work” means any ordinary watercourse and includes any land that provides or is expected to provide flood storage capacity for an ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence;
“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991;
“plans” includes sections, drawings, specifications and method statements;
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—
affect the total volume or the volumetric rate of flow of water in or flowing to or from any drainage work; or
affect the conservation, distribution or use of water resources.
18 (1) Before beginning to construct any specified work, the undertaker must submit to the drainage authority plans of the specified work and such further particulars available to it as the drainage authority may within 28 days of the submission of the plans reasonably require.
(2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph.
(3) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under sub-paragraph (1).
(4) Any approval of the drainage authority required under this paragraph—
(a) must not be unreasonably withheld or delayed;
(b) is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval (or submission of further particulars if required by the drainage authority under sub-paragraph (1)); and
(c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, for the protection of any ordinary watercourse or for the prevention of flooding or pollution or discharge of its environmental function.
(5) For deemed consent under sub-paragraph (4)(b) to apply to any application for consent under sub-paragraph (1), the application must include a statement that the provisions of sub-paragraph (4)(b) apply to that application.
(6) If a submission of plans for approval (or submission of further particulars if required by the drainage authority) under sub-paragraph (1) does not include the statement required under sub-paragraph (5), then the provisions of sub-paragraph (4)(b) will not apply to that submission of plans for approval.
(7) Any refusal under this paragraph must be accompanied by a statement of reasons for refusal.
19 Without limiting paragraph 18, the requirements which the drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a) to safeguard any drainage work against damage; or
(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,
by reason of any specified work.
20 (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 19, must be constructed—
(a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part; and
(b) to the reasonable satisfaction of the drainage authority,
and an officer of the drainage authority is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to the drainage authority—
(a) not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and
(b) notice in writing of its completion not later than 7 days after the date of completion.
(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work.
(4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part, the drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.
(5) Subject to sub-paragraph (6), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice, and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.
(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.
21 If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or the drainage work is otherwise damaged, the impairment or damage must be made good by the undertaker to the reasonable satisfaction of the drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.
22 The undertaker must make reasonable compensation to the drainage authority in respect of all reasonable costs, charges and expenses that the drainage authority may reasonably incur, have to pay or may sustain—
(a) in the examination or approval of plans under this Part;
(b) in inspecting the construction of any specified work or any protective works required by the drainage authority under this Part; and
(c) in carrying out of any surveys or tests by the drainage authority that are reasonably required in connection with the construction of the specified work.
23 (1) Without limiting the other provisions of this Part, the undertaker must make reasonable compensation to the drainage authority in respect of all claims, demands, proceedings, costs, damages, expenses or loss that may be made or taken against, recovered from or incurred by, the drainage authority by reason of—
(a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence; or
(b) any flooding or increased flooding of any such land,
that is caused by the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the work.
(2) The drainage authority must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker (such agreement not to be unreasonably withheld or delayed).
(3) The drainage authority must use its reasonable endeavours to mitigate in whole or in part and to minimise any claims, demands, proceedings, costs, damages, expenses or loss to which this paragraph applies.
(4) If requested to do so by the undertaker, the drainage authority must provide an explanation of how the claim has been minimised.
(5) The undertaker is only liable under this paragraph for claims reasonably incurred by the drainage authority.
(6) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage to the extent that it is attributable to the act, neglect or default of the drainage authority or the breach of a statutory duty of the drainage authority, its officers, servants, contractors or agents.
24 The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the drainage authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part.
25 Any dispute between the undertaker and the drainage authority under this Part, if the parties agree, must be determined by arbitration under article 41 (arbitration).
PART 4 FOR THE PROTECTION OF UNITED UTILITIES WATER LIMITED
26 The provisions of this Part have effect, in addition to the provisions of Part 1, for the protection of UU Water unless otherwise agreed in writing between the undertaker and UU Water.
27 In this Part—
“UU Water” means United Utilities Water Limited (company number 02366678), registered office at Haweswater House, Lingley Mere Business Park, Lingley Green Avenue, Great Sankey, Warrington, WA5 3LP and includes its successors in title or any successor as a water and sewerage undertaker within the meaning of the Water Industry Act 1991.
Expenses and costs
28 (1) If the undertaker proposes to connect foul water to a public sewer operated by UU Water, the undertaker shall give to UU Water notice of the proposal, and within 42 days of the receipt by them of the notice, UU Water may refuse permission for the connection (but only if it has reasonable grounds for doing so), or it may grant permission for the connection or alteration, subject to such reasonable conditions as it thinks fit acting reasonably. Any such permission may in particular specify the mode and point of connection.
(2) If the undertaker proposes to connect surface water to a public sewer operated by UU Water, the undertaker shall give to UU Water notice of the proposal, and within 42 days of the receipt by them of the notice, UU Water may refuse permission for the connection (but only if it has reasonable grounds for doing so), or it may grant permission for the connection or alteration, subject to such reasonable conditions as it thinks fit acting reasonably. Any such permission may in particular specify the mode, the point of connection, the rate of discharge and the size of any attenuation necessary. UU Water shall be entitled to refuse any connection where the sustainable drainage system hierarchy for managing surface water has not been reasonably investigated and / or sustainable drainage has not been incorporated within the proposed surface water drainage to the satisfaction of UU Water.
(3) UU Water may prohibit the discharge of foul water into the public sewer reserved for surface water, and prohibit the discharge of surface water into the public sewer reserved for foul water.
(4) Where UU Water has not granted or refused permission under this paragraph within 42 days from the receipt of notice of a proposal the permission shall be deemed to be granted.
(5) Nothing in this section entitles the undertaker to—
(a) discharge into a public sewer (directly or indirectly), highway drainage, groundwater, trade effluent or any liquid or other matter, the discharge of which into a public sewer is prohibited by or under any enactment; or
(b) have drains or sewers that communicate directly with a storm water overflow.
Article 41
Commencing an arbitration
1 The arbitration is deemed to have commenced when a party (“the claimant”) serves a written notice of arbitration on the other party (“the respondent”).
Time periods
2 (1) All time periods in these arbitration rules are measured in days and include weekends, but not bank or public holidays.
(2) Time periods are calculated from the day after the arbitrator is appointed which is either—
(a) the date the arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or
(b) the date the arbitrator is appointed by the Secretary of State.
Timetable
3 (1) The timetable for the arbitration is that which is set out in sub-paragraphs (2) to (4) below unless amended in accordance with paragraph 5(3).
(2) Within 14 days of the arbitrator being appointed, the claimant must provide both the respondent and the arbitrator with—
(a) a written statement of claim which describes the nature of the difference between the parties, the legal and factual issues, the claimant’s contentions as to those issues, the amount of its claim or the remedy it is seeking;
(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.
(3) Within 14 days of receipt of the claimant’s statements under sub-paragraph (2) by the arbitrator and respondent, the respondent must provide the claimant and the arbitrator with—
(a) a written statement of defence consisting of a response to the claimant’s statement of claim, its statement in respect of the nature of the difference, the legal and factual issues in the claimant’s claim, its acceptance of any elements of the claimant’s claim and its contentions as to those elements of the claimant’s claim it does not accept;
(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;
(c) any objection it wishes to make to the claimant’s statements, comments on the claimant’s expert reports (if submitted by the claimant) and explanations of the objections.
(4) Within seven days of the respondent serving its statements under sub-paragraph (3) the claimant may make a statement of reply by providing both the respondent and the arbitrator with—
(a) a written statement responding to the respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;
(b) all statements of evidence and copies of documents in response to the respondent’s submissions;
(c) any expert report in response to the respondent’s submissions;
(d) any objections to the statements of evidence, expert reports or other documents submitted by the respondent; and
(e) its written submissions in response to the legal and factual issues involved.
Procedure
4 (1) The parties’ pleadings, witness statements and expert reports (if any) must be concise. A single pleading must not exceed 30 single-sided A4 pages using 10pt Arial font.
(2) The arbitrator will make an award on the substantive differences based solely on the written material submitted by the parties unless the arbitrator decides that a hearing is necessary to explain or resolve any matters.
(3) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.
(4) Within seven days of receiving the last submission, the arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.
(5) Within 10 days of the arbitrator advising the parties that a hearing is to be held, the date and venue for the hearing are to be fixed by agreement with the parties, save that if there is no agreement the arbitrator must direct a date and venue which the arbitrator considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the arbitrator’s direction confirming the date and venue of the hearing.
(6) A decision must be made by the arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the arbitrator, then any experts attending the hearing may be asked questions by the arbitrator.
(7) There is to be no examination or cross examination of experts, but the arbitrator must invite the parties to ask questions of the experts by way of clarification of any answers given by the experts in response to the arbitrator’s questions. Prior to the hearing in relation to the experts—
(a) at least 28 days before a hearing, the arbitrator must provide a list of issues to be addressed by the experts;
(b) if more than one expert is called, they will jointly confer and produce a joint report or reports within 14 days of the issues being provided; and
(c) the form and content of a joint report must be as directed by the arbitrator and must be provided at least seven days before the hearing.
(8) Within 14 days of a hearing or a decision by the arbitrator that no hearing is to be held the parties may by way of exchange provide the arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The arbitrator must take these submissions into account in the award.
(9) The arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which the arbitrator is appointed, unless both parties otherwise agree to an extension to the date for the award.
(10) If a party fails to comply with the timetable, procedure or any other direction then the arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before the arbitrator attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure or direction.
(11) The arbitrator’s award must include reasons. The parties must accept that the extent to which reasons are given must be proportionate to the issues in dispute and the time available to the arbitrator to deliver the award.
Arbitrator’s powers
5 (1) The arbitrator has all the powers of the Arbitration Act 1996, save where modified in this Schedule.
(2) There must be no discovery or disclosure, except that the arbitrator is to have the power to order the parties to produce such documents as are reasonably requested by another party no later than the statement of reply, or by the arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing.
(3) Any time limits fixed in accordance with this procedure or by the arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the arbitrator. In the absence of agreement, the arbitrator may vary the timescales or procedure—
(a) if the arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;
(b) only for such a period that is necessary to achieve fairness between the parties.
(4) On the date the award is made, the arbitrator will notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the arbitrator’s fees and expenses.
Costs
6 (1) The costs of the arbitration must include the fees and expenses of the arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the arbitration.
(2) Where the difference involves connected or interrelated issues, the arbitrator must consider the relevant costs collectively.
(3) The final award must fix the costs of the arbitration and decide which of the parties are to bear them or in what proportion they are to be borne by the parties.
(4) The arbitrator must award recoverable costs on the general principle that each party should bear its own costs, having regard to all material circumstances, including such matters as exaggerated claims or defences, the degree of success for different elements of the claims, claims that have incurred substantial costs, the conduct of the parties and the degree of success of a party.
Confidentiality
7 (1) Subject to sub-paragraphs (2) and (3), any arbitration hearing and documentation will be open to and accessible by the public.
(2) The arbitrator may direct that the whole or part of a hearing is to be private or any documentation to be confidential where it is necessary in order to protect commercially sensitive information.
(3) Nothing in this paragraph will prevent any disclosure of a document by a party pursuant to an order of a court in England and Wales or where disclosure is required under any enactment.