What Version

• Latest available (Revised)
• Original (As made)

Opening Options

• Open whole Instrument
• Open Instrument without Schedules
• Open Schedules only

More Resources

View more

Article 37

SCHEDULE 13PROTECTIVE PROVISIONS

PART 1FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Application

1.  For the protection of the affected undertakers referred to in this Part of this Schedule (save for any utility undertakers which are specifically protected by any other Part of this Schedule, which will take precedence) the following provisions have effect, unless otherwise agreed in writing between the undertaker and the affected undertaker concerned.

Interpretation

2.  In this Part of this Schedule—

“affected undertaker” means—

for the area of the authorised development but, for the avoidance of doubt, does not include the undertakers specified in Parts 3 to 7 of this Schedule, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained;

“alternative apparatus” means alternative apparatus adequate to enable the affected undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means—

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties; and

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land.

Precedence of the 1991 Act in respect of apparatus in the streets

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (water supply) of the Water Industry Act 1991.

Removal of apparatus

4.—(1) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an affected undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph(2), afford to the affected undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(2) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph(1), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the affected undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(3) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article44 (arbitration).

(4) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article44 (arbitration) and after the grant to the affected undertaker of any such facilities and rights as are referred to in sub-paragraph(1) or(2), 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.

(5) Regardless of anything in sub-paragraph(4), if the undertaker gives notice in writing to the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the affected undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertaker.

Facilities and rights for alternative apparatus

5.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the affected undertaker in question or in default of agreement settled by arbitration in accordance with article44 (arbitration).

(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the affected undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

6.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph4(1) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph4(1), the undertaker must submit to the affected undertaker in question a plan, section and description of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph(1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph(3) by the affected undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the affected undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by an affected undertaker under sub-paragraph(2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph(1) are submitted to it.

(4) If an affected undertaker in accordance with sub-paragraph(3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs1 to5 apply as if the removal of the apparatus had been required by the undertaker under paragraph4(1).

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph(1) in a case of emergency but in that case it must give to the affected undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph(2) in so far as is reasonably practicable in the circumstances.

Expenses and costs

7.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph4(1).

(2) There must be deducted from any sum payable under sub-paragraph(1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article44 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the affected undertaker in question by virtue of sub-paragraph(1) must be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph(3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be to be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph would be payable to an affected undertaker in respect of works by virtue of sub-paragraph(1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the affected undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

8.—(1) Subject to sub-paragraphs(2) and(3), if by reason or in consequence of the construction of any such works referred to in paragraph4(1), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an affected undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertaker, the undertaker must—

(a)bear and pay the cost reasonably incurred by that affected undertaker in making good such damage or restoring the supply; and

(b)provide reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected undertaker,

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph(1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an affected undertaker, its officers, servants, contractors or agents.

(3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Enactments and agreements

9.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an affected undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 2FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

10.  For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.

11.  In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003(3);

“the code rights” has the same meaning as in the Paragraph 3 of the electronic communications code(4);

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

“electronic communications code network” means—

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 (Application of the electronic communications code) of the 2003 Act;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and

“operator” means the operator of an electronic communications code network.

12.  The exercise of the powers conferred by this Order is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

13.—(1) Subject to sub-paragraph(2), if as a result of the authorised development or its construction, or of any subsidence resulting from any of the authorised development—

(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development), or other property of an operator; or

(b)there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other reasonable expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph(1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

14.  The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker and if such consent, is withheld, the undertaker has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

15.  Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article44 (arbitration).

16.  This Part of this Schedule does not apply to—

(a)any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

17.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus in land belonging to the undertaker on the date on which this Order is made.

PART 3FOR THE PROTECTION OF SOUTHERN WATER

18.  For the protection of Southern Water, the following provisions have effect, unless otherwise agreed in writing between the undertaker and Southern Water.

19.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable Southern Water to fulfil its statutory functions in not less efficient a manner than previously;

“apparatus” means—

and includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any sewer, drain, or works (within the meaning of section 219 (general interpretation) of that Act) and 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, design principles, site locations, accesses, soil reports, programmes, calculations, risk assessments, standoff distances, sections, drawings, specifications, method statements and other documents that are reasonably necessary to properly and sufficiently to describe the works to be executed; and

“Southern Water” means Southern Water Services Limited, company number 02366670, whose registered office is at Southern House, Yeoman Road, Worthing, West Sussex, BN13 3NX.

Precedence of the 1991 Act in respect of apparatus in streets

20.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Southern Water are regulated by the provisions of Part 3 (water supply) of the 1991 Act.

Apparatus in closed streets

21.  Regardless of the temporary closure or diversion of any street under the powers conferred by article17 (public rights of way – stopping up and vehicular use on public rights of way), Southern Water is at liberty at all times to take all necessary access across any such closed street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street subject to serving 7 days’ notice on the undertaker (save in cases of emergency).

Removal of apparatus

22.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that Southern Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of Southern Water to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Southern Water in accordance with sub-paragraphs(1) to(8) and until—

(a)any requirement for a permit under the Environmental Permitting (England and Wales) Regulations 2016(5) or other legislation and any other associated consents are obtained, and any approval or agreement required from Southern Water on alternative locations as a result of such re-location are approved, such approvals from Southern Water not to be unreasonably withheld or delayed; and

(b)the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Southern Water has agreed all of the documentation required under the Water Industry Act 1991, such agreement not to be unreasonably withheld or delayed; and such works to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by Southern Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Southern Water written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Southern Water reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph(3), afford to Southern Water the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph(2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, Southern Water must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for Southern Water to use its compulsory purchase powers to this end unless it elects to do so.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Southern Water and the undertaker or in default of agreement settled by arbitration in accordance with article44 (arbitration).

(5) Southern Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article44 (arbitration) and after the grant to Southern Water of any such facilities and rights as are referred to in sub-paragraphs(2) or(3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph(5), if the undertaker gives notice in writing to Southern Water that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, and Southern Water will refer to its own guidance, policies and specifications for carrying out works of that nature, and if agreed by Southern Water (such agreement not to be unreasonably withheld or delayed), that work, instead of being executed by Southern Water, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Southern Water.

(7) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker will, before taking any steps that will trigger the need for those substitution works, use best endeavours to comply with Southern Water’s reasonable requests for a reasonable period of time to enable Southern Water to—

(a)make network contingency arrangements; or

(b)bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.

(8) 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 the standoff distances agreed between the parties under sub-paragraph(2) and for the purposes of a sewer or rising main is the standard protective strip which is the strip of land falling 3 metres either side of the sewer or rising main or so as to require any special measures that are outside industry standard measures other than in accordance with paragraph26 (retained apparatus) below unless otherwise agreed with Southern Water, such agreement not to be unreasonably withheld or delayed, with such provision being brought promptly to the attention of any agent or contractor responsible for carrying out any work on behalf of the undertaker.

Access

23.—(1) If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is obstructed or rendered materially less convenient (in Southern Water’s opinion, acting reasonably) the undertaker must provide such alternative means of access to such apparatus as will enable Southern Water to maintain or use the apparatus no less effectively or conveniently than was possible before such obstruction.

(2) Where the undertaker proposes to provide to Southern Water an alternative means of access to any apparatus in compliance with sub-paragraph(1), the powers conferred by the Order must not be exercised until Southern Water has approved the proposed alternative means of access (such approval not to be unreasonably withheld or delayed).

Facilities and rights for alternative apparatus

24.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Southern Water facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Southern Water or in default of agreement settled by arbitration in accordance with article44 (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 Southern Water than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to Southern Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Identification and notification of apparatus

25.  If in consequence of the exercise of the powers conferred by the Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets must immediately be given to Southern Water and afforded the same protection of other Southern Water assets.

Retained apparatus

26.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used pursuant to the powers of this Order that are near to, or will or may affect, any apparatus where the removal of which has not been required by the undertaker, the undertaker must submit to Southern Water for approval a plan, section and description of the works to be executed.

(2) The undertaker must not commence the works outlined in sub-paragraph(1) until the plan of works has been approved by Southern Water (such approval not to be unreasonably withheld or delayed).

(3) Those works must be executed only in accordance with the plan, section and description submitted and approved under sub-paragraph(1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph(4) by Southern Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Southern Water is entitled to watch and inspect the execution of those works.

(4) Any reasonable requirements made by Southern Water under sub-paragraph(3) shall be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph(1) are submitted to it.

(5) If the revised plan of works is not approved within 21 days, either the undertaker or Southern Water may require a meeting to be held within 28 days of submission of the revised plan of works between the chief engineers or a suitably qualified alternative representative of the undertaker and Southern Water to agree the plan of works.

(6) If the undertaker and Southern Water fail to reach an agreement on the plan of works, the dispute shall be resolved in accordance with article44 (arbitration).

(7) If Southern Water 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, paragraphs18 to20 and23 to25 apply as if the removal of the apparatus had been required by the undertaker under paragraph22(2).

(8) Nothing in this paragraph shall preclude the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan, section and description.

(9) The undertaker is not required to comply with sub-paragraph26(1) in a case of emergency but in that case it must give to Southern Water notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph(2) in so far as is reasonably practicable in the circumstances.

(10) For the purposes of sub-paragraph(1), works are deemed to be in land near Southern Water’s apparatus if those works fall within the standoff distances agreed between the parties under sub-paragraph(2).

Expenses and costs

27.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to Southern Water the reasonable expenses incurred by Southern Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph22(2).

(2) There must be deducted from any sum payable under sub-paragraph(1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article44 (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 Southern Water in question by virtue of sub-paragraph(1) must be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph(3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be to be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph would be payable to Southern Water in respect of works by virtue of sub-paragraph(1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Southern Water any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

28.—(1) Subject to sub-paragraphs(2) and(3), if by reason or in consequence of the construction of any such works referred to in paragraph22(1) any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Southern Water, or there is any interruption in any service provided, or in the supply of any goods, by Southern Water, the undertaker must—

(a)bear and pay the cost reasonably incurred by Southern Water in making good such damage or restoring the supply; and

(b)provide reasonable compensation to Southern Water for any other expenses, loss, damages, penalty or costs incurred by Southern Water,

by reason or in consequence of any such damage or interruption.

(2) The fact that any act or thing may have been done by Southern Water on behalf of the undertaker or in accordance with a plan approved by Southern Water or in accordance with any requirement of Southern Water or under its supervision does not, subject to sub-paragraph(3), excuse the undertaker from liability under the provisions of sub-paragraph(1).

(3) Nothing in sub-paragraph(1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of Southern Water, its officers, servants, contractors or agents.

(4) Southern Water must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Arbitration

29.  For the avoidance of doubt any difference under any provision of this Part of this Schedule, unless otherwise provided for, shall be referred to and settled by arbitration in accordance with article44 (arbitration), by a single arbitrator to be agreed upon by 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 application of either party (after giving written notice to the other) by the Secretary of State.

Acquisition of land

30.  Regardless of any provision in the Order or anything shown on the land plans, the undertaker must not acquire any apparatus other by agreement with Southern Water.

Enactments and agreements

31.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Southern Water in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 4FOR THE PROTECTION OF SOUTH EASTERN POWER NETWORKS PLC

Application

32.—(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 undertakers concerned.

(2) The provisions of this Part of this Schedule will not apply to any authorised development carried out by UK Power Networks or National Grid pursuant to article6 (benefit of the Order) or article7 (consent to transfer benefit of the Order) of this Order.

Interpretation

33.  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 electric lines and electrical plant (as defined in section 64(1) of the Electricity Act 1989) belonging to or maintained by the utility undertaker;

“functions” includes powers and duties;

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;

“specified works” means any of the authorised development which—

“utility undertaker” means South Eastern Power Networks plc, whose registered office is at Newington House, 237, Southwark Bridge Road, London, SE1 6NP.

On street apparatus

34.  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 of the 1991 Act.

Apparatus in stopped up rights of way

35.—(1) Where any public right of way is closed or stopped up under article17 (public rights of way – stopping up and vehicular use on public rights of way) and the utility undertaker has apparatus in that public right of way, the utility undertaker will continue to have the same powers and rights in respect of that apparatus as it enjoyed immediately before the closure or stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph37 (removal of apparatus) or the power of the undertaker to carry out works under paragraph39 (retained apparatus).

(2) Regardless of the temporary closure or diversion of any street under the powers of article10 (street works and temporary closure of streets and private means of access), the utility undertaker is at liberty at all times to take all necessary access across any such closed or diverted street and to execute and do all such works and things in any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Acquisition of land

36.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement with the utility undertaker.

Removal of apparatus

37.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of the utility undertaker in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in accordance with sub-paragraphs(2) to(5).

(2) If, for the purpose of executing any specified works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker no less than 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order the 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 and use of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph(2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, 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, save that this obligation does not extend to the requirement for the utility undertaker to use its powers of compulsory acquisition unless it elects to do so.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article44 (arbitration).

(5) The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article44 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph(2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph(5), if the undertaker gives notice in writing to the utility undertaker that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

Facilities and rights for alternative apparatus

38.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to the utility undertaker necessary facilities and rights in land for the construction and maintenance of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms as may be agreed between the undertaker and the utility undertaker and must be no less favourable on the whole to the utility undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed, unless otherwise agreed by the utility undertaker, such agreement not to be unreasonably withheld.

(2) If the facilities and rights to be afforded by the undertaker and agreed with the utility undertaker under sub-paragraph(1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to the utility undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the matter may be referred to arbitration in accordance with paragraph45 (arbitration) and the arbitrator must make such provision for the payment of compensation by the undertaker to the utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

39.—(1) Not less than 28 days before the commencement of any specified works, the undertaker must submit to the utility undertaker a plan of the works to be executed.

(2) The plan to be submitted to the utility undertaker under sub-paragraph(1) must include a method statement and describe—

(a)the exact position of the works;

(b)the level at which they are proposed to be constructed or renewed;

(c)the manner of their construction or renewal;

(d)the position of all apparatus; and

(e)by way of detailed drawings, every alteration proposed to be made to such apparatus.

(3) The undertaker must not commence any specified works until the utility undertaker has given written approval of the plan so submitted.

(4) Any approval of the utility undertaker given under sub-paragraph(3)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph39(5);

(b)must not be unreasonably withheld; and

(c)will be deemed approved if no response is provided by the utility undertaker within 28 days.

(5) The utility undertaker may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must be executed in accordance with the plan submitted under sub-paragraph(1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph39(5) 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 will be entitled to watch and inspect the execution of those works where reasonably practicable to do so and in accordance with any relevant health and safety legislation.

(7) Any requirements made by the utility undertaker under sub-paragraph39(5) are to be made within a period of 14 days beginning with the date on which the plan is submitted to it.

(8) If the utility undertaker, in accordance with sub-paragraph39(5) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs32 to34 and36 to38 apply as if the removal of the apparatus had been required by the undertaker under paragraph37(2).

(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any specified works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(10) The undertaker is not required to comply with sub-paragraph(1) in a case of emergency works but in that case it must give to the utility undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph39(5) in so far as is reasonably practicable in the circumstances.

(11) In sub-paragraph(10), “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses and costs

40.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to the utility undertaker within 30 days of receipt of an itemised VAT invoice from the utility undertaker all expenses reasonably and properly incurred by the utility undertaker in, or in connection with the inspection, removal, alteration, relaying, replacing or protection of any apparatus or the construction of any alternative apparatus which may be required in consequence of the execution of any specified works.

(2) There must be deducted from any sum payable under sub-paragraph(1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article44 (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 by virtue of sub-paragraph(1) must be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph(3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of specified works; and

(b)where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.

(5) Any amount which apart from this sub-paragraph would be payable to the 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.

41.—(1) Subject to sub-paragraphs(2) and(3), if by reason or in consequence of the construction of any specified works any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the utility undertaker, the undertaker must—

(a)bear and pay within 30 days of receipt of an itemised invoice from the utility undertaker the cost reasonably and properly incurred by the utility undertaker in making good such damage or restoring the supply; and

(b)reimburse the utility undertaker for and indemnify for any other losses, expenses, demands, proceedings, damages, claims, penalty or costs properly incurred by or recovered from the utility undertaker, by reason or in consequence of any such damage or interruption or the utility undertaker becoming liable to any third party as aforesaid other than arising from any default of the utility undertaker.

(2) The fact that any act or thing may have been done by the utility undertaker on behalf of the undertaker or in accordance with a plan approved by the utility undertaker or in accordance with any requirement of utility undertaker or under its supervision will not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph(1), unless utility undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan agreed by utility undertaker in accordance with paragraph37(4) and paragraph39(4).

(3) Nothing in sub-paragraph(1) imposes any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of the utility undertaker , its officers, servants, contractors or agents;

(b)any part of the specified works carried out by the utility undertaker in the exercise of any functions conferred by this Order pursuant to a transfer or grant under article 7 (consent to transfer benefit of the Order); or

(c)any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working) arising from any such damage or interruption, which is not reasonably foreseeable.

(4) The utility undertaker must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must be made without the consent of the undertaker and, if such consent is withheld, the undertaker shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(5) The utility undertaker must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies and if reasonably requested to do so by the undertaker the utility undertaker must provide an explanation of how the claim has been minimised.

Enactments and agreements

42.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and the 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.

Cooperation

43.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or the utility undertaker requires the removal of apparatus under paragraph37(2) or the utility undertaker makes requirements for the protection or alteration of apparatus under paragraph39 (retained apparatus), the undertaker must use reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and the utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the utility undertaker’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.

Access

44.  If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed the undertaker must provide such alternative means of access to that apparatus as will enable the utility undertaker to maintain or use the apparatus no less effectively than was possible before the obstruction.

Arbitration

45.  Any difference or dispute arising between the undertaker and the utility undertaker under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and the utility undertaker, be determined by arbitration in accordance with article44 (arbitration).

PART 5FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY TRANSMISSION PLC AS ELECTRICITY UNDERTAKER

Application

46.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid.

(2) Subject to sub-paragraph(3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article7 (consent to transfer benefit of the Order)—

(a)any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and

(b)written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant.

(3) Sub-paragraph(2) does not apply where the benefit of the Order is transferred or granted to National Grid (but without prejudice to paragraph55(3)(b)).

Interpretation

47.  In this Part of this Schedule—

“acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: (i) “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and “A3” if the rating is assigned by Moody’s Investors Services Inc.;

“acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of indemnity of not less than a sum to be notified to the undertaker by National Grid and agreed in writing between the parties. Evidence of that insurance must be provided to National Grid on request. Such insurance shall be maintained—

“acceptable security” means either—

“alternative apparatus” means appropriate alternative apparatus to the satisfaction of National Grid to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by National Grid together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“authorised works” has the same meaning as is given to the term “authorised development” in article2(1) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;

“commence” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, must require the undertaker to submit for National Grid’s approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;

“incentive deduction” means any incentive deduction National Grid receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised works;

“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Grid: construct, use, repair, alter, inspect, renew or remove the apparatus;

“NESO” means as defined in the STC;

“parent company” means a parent company of the undertaker acceptable to and which shall have been approved by National Grid acting reasonably;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

“STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and NESO as modified from time to time;

“STC claims” means any claim made under the STC against National Grid arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid’s transmission system which arises as a result of the authorised works; and

“transmission owner” means as defined in the STC.

On street apparatus

48.  Except for paragraphs48 (apparatus of National Grid in closed streets),53 (retained apparatus: protection),54 (expenses) and55 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid in closed streets or in public rights of way that are closed or stopped up

49.—(1) Where any street is closed under article10 (street works and temporary closure of streets and private means of access) or stopped up under article17 (public rights of way – stopping up and vehicular use on public rights of way) as specified in Schedule 8 (public rights of way) to this Order, if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the closure or stopping up and the undertaker must grant to National Grid, or use reasonable endeavours to procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the closure of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph51 (removal of apparatus) or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph53 (retained apparatus: protection).

(2) Notwithstanding the temporary closure or diversion of any street under the powers of article10 (street works and temporary closure of streets and private means of access) or are stopped up under article17 (public rights of way – stopping up and vehicular use on public rights of way) as specified in Schedule 8 (public rights of way) to this Order, National Grid is at liberty at all times to take all necessary access across any such closed street or stopped up public right of way 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 closure or diversion was in that street.

Acquisition of land

50.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not (a) appropriate or acquire or take temporary possession of any land or apparatus or (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Grid otherwise than by agreement.

(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or affect the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid , and it will be the responsibility of the undertaker to procure and/or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

(3) Save where otherwise agreed in writing between National Grid and the undertaker, the undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule will prevail.

(4) Any agreement or consent granted by National Grid under paragraph53 (retained apparatus: protection) or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph(1).

Removal of apparatus

51.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs(2) to(5).

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in direct consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph(3), secure any necessary consents for the alternative apparatus and afford to National Grid to its satisfaction (taking into account paragraph52(1) below) the necessary facilities and rights—

(a)for the construction of alternative apparatus in other land of or land secured by the undertaker; and

(b)subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph(2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid may in its sole discretion, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to assist the undertaker to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation will not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to do so.

(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Grid of any such facilities and rights as are referred to in sub-paragraph(2) or(3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

Facilities and rights for alternative apparatus

52.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid (in National Grid’s opinion, acting reasonably)than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the matter may be referred to arbitration in accordance with paragraph59 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

53.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity assets.

(2) In relation to specified works the plan to be submitted to National Grid under sub-paragraph(1) must include a method statement and describe—

(a)the exact position of the works;

(b)the level at which these are proposed to be constructed or renewed;

(c)the manner of their construction or renewal including details of excavation, positioning of plant;

(d)the position of all apparatus;

(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

(f)any intended maintenance regimes;

(g)an assessment of risks of rise of earth issues; and

(h)a ground monitoring scheme, where required.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph(1) must, in addition to the matters set out in sub-paragraph(2), include a method statement describing—

(a)details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b)demonstration that pylon foundations will not be affected prior to, during and post construction;

(c)details of load bearing capacities of trenches;

(d)details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e)a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;

(f)written details of the operations and maintenance regime for any cable, including frequency and method of access;

(g)assessment of earth rise potential if reasonably required by National Grid’s engineers; and

(h)evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to and including 26 tonnes in weight.

(4) The undertaker must not commence any works to which sub-paragraphs(2) or(3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraph(4)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs(6) or(8);

(b)must not be unreasonably withheld or delayed.

(6) In relation to any work to which sub-paragraphs(2) or(3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works executed under sub-paragraphs(2) or(3) must be executed in accordance with the plan, submitted under sub-paragraph(1) or as relevant sub-paragraph(6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs(6) or(8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where National Grid requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required and National Grid must give notice of its requirement for such works within 14 days of the date of submission of a plan pursuant to sub-paragraph(1) (except in an emergency).

(9) If National Grid in accordance with sub-paragraphs(6) or(8) and in consequence of the specified works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs46 to48 and50 to52 apply as if the removal of the apparatus had been required by the undertaker under paragraph51(2) (removal of apparatus).

(10) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the authorised development, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(11) The undertaker will not be required to comply with sub-paragraph(1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs(6),(7) and(8) insofar as is reasonably practicable in the circumstances and comply with sub-paragraph(12) at all times.

(12) At all times when carrying out any works authorised under this Order, the undertaker must comply with National Grid’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Expenses

54.—(1) Save where otherwise agreed in writing between National Grid and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised VAT invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—

(a)any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—

(i)using its own compulsory purchase powers to acquire any necessary rights under paragraph51(3) (removal of apparatus); or

(ii)exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

(b)the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(c)the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d)the approval of plans under this part of this Schedule;

(e)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and

(f)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.

(2) There will be deducted from any sum payable under sub-paragraph(1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph59 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph(1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

(4) For the purposes of sub-paragraph(3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus will not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.

(5) Any amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph(1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on National Grid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Indemnity

55.—(1) Subject to sub-paragraphs(2) and(3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

(b)indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party and including STC claims or an incentive deduction other than arising from any default of National Grid.

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph(3) applies) excuse the undertaker from liability under the provisions of sub-paragraph(1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph(1) imposes any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents;

(b)any authorised works and/or any other works authorised by this Part of this Schedule carried out by National Grid pursuant to article6 (benefit of the Order) or as a transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any authorised works yet to be executed and not falling within this sub-paragraph will be subject to the full terms of this Part of this Schedule including this paragraph; or

(c)any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.

(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.

(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

(7) Before carrying out any specified works the undertaker must put in place a policy of acceptable insurance with a reputable insurer the coverage and level of cover to be first agreed in writing between the undertaker and National Grid, and evidence of such insurance to be provided on request and thereafter maintained for the duration of the carrying out of any specified works.

(8) Before carrying out any specified works the undertaker must put in place acceptable security, and evidence of such acceptable security is to be provided on request and thereafter maintained for the duration of the carrying out of any specified works.

(9) Any dispute between the undertaker and National Grid regarding the terms, cover or insured level of the insurance policy or regarding the form and level of acceptable security shall be resolved in accordance with paragraph59 (arbitration).

Enactments and agreements

56.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Grid and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Cooperation

57.—(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph51(2) (removal of apparatus) or National Grid makes requirements for the protection or alteration of apparatus under paragraph53 (retained apparatus: protection), the undertaker will use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid will use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.

Access

58.  If in consequence of the agreement reached in accordance with paragraph50(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

59.  Save for any differences or disputes arising under paragraph51(2),51(4),53(1) and54, any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article44 (arbitration).

Notices

60.  Notwithstanding article42 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph53 (retained apparatus: protection) must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 6FOR THE PROTECTION OF NATIONAL GRID INTERCONNECTORS LIMITED AS ELECTRICITY UNDERTAKER

Application

61.—(1) For the protection of National Grid Interconnectors as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid Interconnectors.

(2) Subject to sub-paragraph(3) or to the extent otherwise agreed in writing between the undertaker and National Grid Interconnectors, where the benefit of this Order is transferred or granted to another person under article7 (consent to transfer benefit of the Order) written notice of the transfer or grant must be given to National Grid Interconnectors on or before the date of that transfer or grant.

(3) Sub-paragraph(2) does not apply where the benefit of the Order is transferred or granted to National Grid Interconnectors (but without prejudice to paragraph68(3)(b) (indemnity)).

Interpretation

62.  In this Part of this Schedule—

“apparatus” means any electric lines, cables or electrical plant as defined in the Electricity Act 1989 and including convertor stations and sub-stations, belonging to or maintained by National Grid Interconnectors together with any apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid Interconnectors for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“authorised works” has the same meaning as is given to the term “authorised development” in article2(1) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;

“commence” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid Interconnectors setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, must require the undertaker to submit for National Grid Interconnectors’ approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

“in” in a context referring to apparatus in land includes a reference to apparatus under, over, across, along or upon such land;

“Incentive Deduction” means any incentive deduction National Grid Interconnectors receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised works;

“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus of National Grid Interconnectors: construct, use, repair or inspect the apparatus;

“National Grid Interconnectors” means National Grid Interconnectors Limited, company number 3385525, who registered office is at 1-3 Strand, London, WC2N 5EH;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

“STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and NESO as modified from time to time; and

“STC Claims” means any claim made under the STC against National Grid Interconnectors arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid Interconnectors’ transmission system which arises as a result of the authorised works.

On street apparatus

63.  Except for paragraphs64 (apparatus of National Grid Interconnectors Limited in closed streets),66 (apparatus: protection),67 (expenses) and68 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of National Grid Interconnectors, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid Interconnectors are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid Interconnectors Limited in closed streets

64.—(1) Where any street is closed under article10 (street works and temporary closure of streets and private means of access), if National Grid Interconnectors has any apparatus in the street or accessed via that street National Grid Interconnectors has the same rights in respect of that apparatus as it enjoyed immediately before the closure and the undertaker must grant to National Grid Interconnectors, or procure the granting to National Grid Interconnectors of, legal easements reasonably satisfactory to National Grid Interconnectors in respect of such apparatus and access to it prior to the closure of any such street but nothing in this paragraph affects any rights of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph66 (apparatus: protection).

(2) Notwithstanding the temporary closure or diversion of any street under the powers of article10 (street works and temporary closure of streets and private means of access), National Grid Interconnectors is at liberty at all times to take all necessary access across any such closed street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Acquisition of land

65.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not—

(a)appropriate or acquire or take temporary possession of any land or apparatus of National Grid Interconnectors; or

(b)appropriate, acquire, extinguish, interfere with or override any easement, other interest or right or apparatus of National Grid Interconnectors,

otherwise than by agreement between the undertaker and National Grid Interconnectors (such agreement not to be unreasonably withheld).

(2) As a condition of an agreement between the parties in sub-paragraph(1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid Interconnectors and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid Interconnectors or affect the provisions of any enactment or agreement regulating the relations between National Grid Interconnectors and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid Interconnectors requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid Interconnectors and the undertaker (each acting reasonably) and which must be no less favourable on the whole to National Grid Interconnectors, unless otherwise agreed by National Grid Interconnectors, and it will be the responsibility of the undertaker to use best endeavours to procure or secure (or both) the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

(3) Any agreement or consent granted by National Grid Interconnectors under paragraph66 (apparatus: protection) or any other paragraph of this Part of this Schedule must not be taken to constitute agreement under sub-paragraph(1).

Apparatus: protection

66.—(1) Not less than 28 days before the commencement of any specified works the undertaker must submit to National Grid Interconnectors a plan of the works to be executed and seek from National Grid Interconnectors details of the underground extent of their electricity assets.

(2) In relation to specified works the plan to be submitted to National Grid Interconnectors under sub-paragraph(1) must include a method statement and describe—

(a)the exact position of the works;

(b)the level at which these are proposed to be constructed or renewed;

(c)the manner of their construction or renewal including details of excavation, positioning of plant;

(d)the position of all apparatus;

(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;

(f)any intended maintenance regimes;

(g)an assessment of risks of rise of earth issues; and

(h)a ground monitoring scheme, where required.

(3) The undertaker must not commence any works to which sub-paragraph(2) applies until National Grid Interconnectors has given written approval of the plan so submitted.

(4) Any approval of National Grid Interconnectors required under sub-paragraph(3)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs(5) or(7);

(b)must not be unreasonably withheld; and

(c)will be deemed approved if no response is provided by National Grid Interconnectors within 28 days of a request for approval being submitted by the undertaker.

(5) In relation to any work to which sub-paragraph(2) applies National Grid Interconnectors may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works executed under sub-paragraph(2) must be executed in accordance with the plan, submitted under sub-paragraph(1) or as relevant sub-paragraph(5), as approved or as amended from time to time by agreement between the undertaker and National Grid Interconnectors and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs(5) or(7) by National Grid Interconnectors for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid Interconnectors will be entitled to watch and inspect the execution of those works.

(7) Where National Grid Interconnectors requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid Interconnectors’ satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required and National Grid Interconnectors will give notice of its requirement for such works within 14 days of the date of submission of a plan pursuant to sub-paragraph(1) (except in an emergency).

(8) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(9) The undertaker will not be required to comply with sub-paragraph(1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid Interconnectors notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs(5),(6) and(7) insofar as is reasonably practicable in the circumstances.

Expenses

67.  Save where otherwise agreed in writing between National Grid Interconnectors and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid Interconnectors within 30 days of receipt of an itemised VAT invoice or claim from National Grid Interconnectors all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid Interconnectors in, or in connection with, the inspection or protection of any apparatus which may be required in consequence of the execution of any authorised works including without limitation—

(a)any costs reasonably incurred by or compensation properly paid by National Grid Interconnectors in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid Interconnectors as a consequence of National Grid Interconnectors exercising any compulsory acquisition powers in the Order transferred to or benefitting National Grid Interconnectors;

(b)the approval of plans under this part of this Schedule;

(c)the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and

(d)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.

Indemnity

68.—(1) Subject to sub-paragraphs(2) and(3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of National Grid Interconnectors, or there is any interruption in any service provided, or in the supply of any goods, by National Grid Interconnectors, or National Grid Interconnectors becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand accompanied by an invoice or claim from National Grid Interconnectors the cost reasonably and properly incurred by National Grid Interconnectors in making good such damage or restoring the supply; and

(b)indemnify National Grid Interconnectors for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid Interconnectors, by reason or in consequence of any such damage or interruption or National Grid Interconnectors becoming liable to any third party and including STC Claims or Incentive Deduction other than arising from any default of National Grid Interconnectors.

(2) The fact that any act or thing may have been done by National Grid Interconnectors on behalf of the undertaker or in accordance with a plan approved by National Grid Interconnectors or in accordance with any requirement of National Grid Interconnectors or under its supervision will not (unless sub-paragraph(3) applies), excuse the undertaker from liability under the provisions of sub-paragraph(1) unless National Grid Interconnectors fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph(1) imposes any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of National Grid Interconnectors, its officers, servants, contractors or agents;

(b)any authorised works or any other works authorised by this Part of this Schedule carried out by National Grid Interconnectors pursuant to article6 (benefit of the Order) or as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any authorised works yet to be executed and not falling within this sub-paragraph68(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph; or

(c)any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable.

(4) National Grid Interconnectors must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.

(5) National Grid Interconnectors must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid Interconnectors must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid Interconnectors reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid Interconnectors’ control and if reasonably requested to do so by the undertaker, National Grid Interconnectors must provide an explanation of how the claim has been minimised, where relevant.

Enactments and agreements

69.  Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Grid Interconnectors and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid Interconnectors in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

70.—(1) Where in consequence of the proposed construction of any part of the authorised works National Grid Interconnectors makes requirements for the protection of apparatus under paragraph66 (apparatus: protection), the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of National Grid Interconnectors’ undertaking and National Grid Interconnectors must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever National Grid Interconnectors’ consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.

Access

71.  If in consequence of the agreement reached in accordance with paragraph65(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid Interconnectors to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

72.  Any difference or dispute arising between the undertaker and National Grid Interconnectors under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid Interconnectors, be determined by arbitration in accordance with article44 (arbitration).

Notices

73.  Notwithstanding article42 (service of notices), any plans submitted to National Grid Interconnectors by the undertaker pursuant to paragraph66 (apparatus: protection) must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid Interconnectors may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 7FOR THE PROTECTION OF NETWORK RAIL

74.  The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph88 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.

75.  In this Part of this Schedule—

“asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by Network Rail;

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act 1993(6);

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to Network Rail and—

“regulatory consents” means any consent or approval required under—

by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development;

“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article4 (maintenance of authorised development) in respect of such works; and

“undertaker” has the same meaning as in article2 (interpretation) of this Order.

76.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a)co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b)use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

77.—(1) The undertaker must not exercise the powers conferred by—

(a)article 3 (development consent granted by the Order);

(b)article 4 (maintenance of authorised development);

(c)article 14 (access to works)

(d)article 19 (discharge of water);

(e)article 20 (authority to survey and investigate the land);

(f)article21 (compulsory acquisition of land);

(g)article23 (statutory authority to override easements and other rights)

(h)article25 (compulsory acquisition of rights and imposition of restrictive covenants);

(i)article26 (private rights);

(j)article28 (acquisition of subsoil and airspace only);

(k)article 34 (acquisition of wayleaves, easements and other rights);

(l)article 30 (temporary use of land for carrying out the authorised development);

(m)article32 (temporary use of land for maintaining the authorised development);

(n)article33 (statutory undertakers);

(o)article 43 (felling or lopping of trees or shrubs);

(p)the powers conferred by section 11(3) (powers of entry) of the 1965 Act;

(q)the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;

(r)the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016; and

(s)any powers under in respect of the temporary possession of land under the Neighbourhood Planning Act 2017;

in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

(2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(3) The undertaker must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, article33 (statutory undertakers), article 34 (acquisition of wayleaves, easements and other rights) or article26 (private rights) in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail.

(5) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

(6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion).

(7) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.

78.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.

79.—(1) Any specified work and any protective works to be constructed by virtue of paragraph78(3) must, when commenced, be constructed—

(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph76;

(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c)in such manner as to cause as little damage as is possible to railway property; and

(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

80.  The undertaker must—

(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

(b)supply the engineer with all such information as they may reasonably require with regard to a specified work or the method of constructing it.

81.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

82.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work (during a period of 24 months after the completion of that work) in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph78, pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph83(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

83.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph78 or in constructing any protective works under the provisions of paragraph78(3) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b)in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

(d)in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

84.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph(2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph78(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph(5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph(3)—

(a)the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph78(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b)Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to paragraph(a); and

(c)Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to paragraph(a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph78(1) has effect subject to the sub-paragraph.

(6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph(3), the testing of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph(5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a)the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

(b)Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;

(c)Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and

(d)the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.

(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs(5) or(6)—

(a)Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

(b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph79.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph88(2) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph(6) applies.

(10) For the purpose of paragraph83(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article44 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.

85.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

86.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

87.  Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

88.—(1) In this paragraph—

“the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph(2); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.

(2) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (subject to article36 (no double recovery)) which may be occasioned to or reasonably incurred by Network Rail—

(a)by reason of the construction, maintenance or operation of a specified work or the failure thereof;

(b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

(c)by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development;

(d)in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others; and

(e)in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission, and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(3) Network Rail must—

(a)give the undertaker reasonable written notice of any such claims or demands;

(b)not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

(c)take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

(4) The sums payable by the undertaker under sub-paragraph(2) shall if relevant include a sum equivalent to the relevant costs.

(5) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph(4) which relates to the relevant costs of that train operator.

(6) The obligation under sub-paragraph(4) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph(5).

89.  Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph88) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

90.  In the assessment of any sums payable to Network Rail under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

91.  The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a)any railway property shown on the works plans and land plans and described in the book of reference;

(b)any land, works or other property held in connection with any such railway property; and

(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

92.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993.

93.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article7 (consent to transfer benefit of the Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

(a)the nature of the application to be made;

(b)the extent of the geographical area to which the application relates; and

(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.

94.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article41 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.

95.  In relation to any dispute arising under this part of this Part of this Schedule (except for those disputes referred to in paragraph84(11)), the provisions of article 44 (arbitration) shall not apply and any such dispute, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers.

PART 8FOR THE PROTECTION OF LONDON ST PANCRAS HIGHSPEED

96.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Company.

97.  In this Part of this Schedule—

“CDM Regulations” means the Construction (Design and Management) Regulations 2015(7);

“Company” means HS1 Limited, trading as London St. Pancras Highspeed (company number 03539665, whose registered office is at 5th Floor, Kings Place, 90 York Way, London N1 9AG) and any HS1 Group Company which holds property for railway purposes;

“concession agreement” means the agreement between the Secretary of State for Transport and the Company for the design, construction, financing, operation, repair and maintenance of High Speed 1 as amended or supplemented from time to time;

“construction” includes execution, placing, alteration, testing and commissioning (and, where relevant, the removal, alteration, re-carrying out after testing/commissioning or re-testing/commissioning) and reconstruction and construct and constructed have corresponding meanings;

“contamination” means the presence of any substance at, in, on or under any given property, that is capable of causing harm to the environment;

“emergency” means fouling of the line, any plant and/or equipment failing and/or falling within the fence, anything touching the overheads, any breach of the security fence, or any activity which adversely affects the stability or safety of any earthwork or structure (including track, overheads and/or stanchions);

“the engineer” means an engineer appointed by the Company for the purposes of this Order;

“environment” means any one or more of—

“High Speed 1” means the high speed rail link between St Pancras in the London Borough of Camden and the Channel Tunnel Portal at Castle Hill, Folkestone, Kent and the international stations at St Pancras, Stratford and Ebbsfleet and Ashford and all associated track, facilities and installations, including the Waterloo Connection and the maintenance depots at Temple Mills and Singlewell;

“HS1 group company” means any subsidiary or holding company of the Company or of another subsidiary or holding company of the Company, as “subsidiary” and “holding company” are understood within section 1159, Companies Act 2006, but on the basis that the holding of not less than one quarter of voting rights shall be deemed to satisfy the condition in section 1159(1)(a);

“HS1 property” means any land (whether freehold or leasehold), easement, property interest, railway, infrastructure, structure (or any part of any of the foregoing) including works, apparatus or equipment, leased, owned, held or used by the Company for the purposes of High Speed 1 that may be affected by the authorised development;

“network licence” means the network licence, as is amended from time to time, granted to the Company by the Secretary of State in exercise of powers pursuant to the Railways Act 1993(8);

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of HS1 property;

“protective works” means any works specified by the engineer under paragraph100;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease; and

“specified work” means so much of any of the authorised development as is, or is to be, situated upon, across, under, over or within 15 metres of, or may (or whose maintenance may) in any way adversely affect, HS1 property.

98.—(1) Where under this Part of this Schedule the Company is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that the Company must comply with any relevant railway operational procedures, any obligations under statute and the concession agreement.

(2) In so far as any specified work or the acquisition or use of HS1 property or rights over HS1 property is or may be subject to railway operational procedures, the Company must—

(a)co-operate with the undertaker and use its reasonable endeavours to avoid delay and secure conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b)use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development under this Order.

99.—(1) The undertaker shall not exercise the powers conferred by articles20 (authority to survey and investigate the land),21 (compulsory acquisition of land),23 (statutory authority to override easements and other rights),25 (compulsory acquisition of rights and imposition of restrictive covenants),26 (private rights),28 (acquisition of subsoil and airspace only),30 (temporary use of land for carrying out the authorised development),32 (temporary use of land for maintaining the authorised development),33 (statutory undertakers), and38 (use of subsoil and airspace within the Order limits) of the Order or the powers conferred by section 11(3) of the Compulsory Purchase Act 1965 in respect of any HS1 property unless the exercise of such powers is with the consent of the Company.

(2) The undertaker shall not in the exercise of the powers conferred by the Order prevent pedestrian or vehicular access to any HS1 property, unless preventing such access is with the consent of the Company.

(3) The undertaker shall not under the powers of the Order acquire or use or acquire new rights over any HS1 property except with the consent of the Company.

100.—(1) Where the Company is asked to give its consent pursuant to this paragraph, such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.

(2) The undertaker must, before commencing construction of any specified work, supply to the Company proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article44 (arbitration).

(3) The approval of the engineer under sub-paragraph (2) must not be unreasonably withheld, and if by the end of the period of 30 business days beginning with the date on which such plans have been supplied to the Company the engineer has not intimated disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 10 business days beginning with the date upon which the engineer receives written notice from the undertaker and if, by the expiry of the further 10 business days period specified in the written notice the engineer has not intimated approval or disapproval, the engineer is deemed to have refused the plans as submitted and the undertaker shall be entitled to refer the dispute for arbitration in accordance with the provisions of article44 (arbitration) of this Order. Where the engineer notifies the undertaker that it withholds its approval under sub-paragraph (2) and gives its reasons, the undertaker shall resubmit such plans amended to address the engineer’s reasons as soon as practicable and the provisions of this paragraph100 shall apply to the revised plans.

(4) The undertaker shall ensure compliance with any conditions imposed by the engineer if and when approving any given plans.

(5) If the Company gives notice to the undertaker that it desires itself to construct any part of a specified work or protective work (including in either case some or all of the requisite design) which in the reasonable opinion of the engineer will or may affect the stability of HS1 property or the safe operation of traffic on High Speed 1 then, if the undertaker desires such part of the specified work to be constructed and subject to sub-paragraph (4), the Company must construct it (together with any adjoining part of the specified work which the undertaker reasonably requires to be constructed with that work with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(6) When signifying approval of the plans under sub-paragraph (2) the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of HS1 property or the continuation of safe and efficient operation of High Speed 1 or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by the Company, or by the undertaker, if the Company so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

(7) Without prejudice to the provisions of sub-paragraph (6), in a case of emergency the Company may elect to carry out itself any protective works or any alteration or addition (or other work) as may be specified under paragraph104, in which case such work shall be carried out by the Company with all reasonable dispatch.

(8) Subject to sub-paragraph (9), if, in any case, the carrying out of the specified works requires the diversion or other alteration of any road or the alteration, removal, replacement or protection of any apparatus belonging to third parties (including mains, sewers, pipes, drains and cables), the undertaker shall be responsible for—

(a)obtaining all requisite consents and approvals for such works;

(b)ensuring such works do not significantly impact on any access or any use of any utilities by the Company; and

(c)meeting any and all costs, fees, charges and expenses associated with such works, including any compensation or other amounts payable to third parties.

(9) Where the Company is carrying out any specified works pursuant to sub-paragraph (5) and the carrying out of the specified works requires the diversion or other alteration of any road or the alteration, removal, replacement or protection of any apparatus belonging to third parties (including mains, sewers, pipes, drains and cables), the Company shall be responsible for—

(a)obtaining all requisite consents and approvals for such works; and

(b)ensuring such works do not significantly impact on any access or any use of any utilities by the undertaker.

101.—(1) Any specified work and any protective works to be constructed by virtue of paragraph100(5) must, when commenced, be constructed—

(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph100;

(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c)in such manner as to cause as little damage as is reasonably possible to HS1 property; and

(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of the Company or the traffic on it and the use by passengers of HS1 property.

(2) The undertaker shall forthwith halt the carrying out of any specified work or protective work or do anything reasonably required by the engineer (including the carrying out of emergency works) to ensure the safety, security, stability, operation or maintenance of High Speed 1. The engineer shall notify the undertaker of the action required to be taken by the undertaker in order to rectify the situation. The undertaker shall be entitled to recommence performance of the specified work or protective work provided that they are in accordance with such action as the engineer requires the undertaker to take.

(3) If any damage to HS1 property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of, a specified work by the undertaker or any person for whom the undertaker is responsible or a protective work carried out by the undertaker or any person for whom the undertaker is responsible, the undertaker must, regardless of any such approval, make good such damage and must pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may sustain by reason of any such damage, interference or obstruction.

(4) If the carrying out of the specified works or the protective works or any act, omission, neglect or default on the part of the undertaker or any person for whom the undertaker is responsible, results in any contamination which has the potential to adversely affect HS1 property, or disturbs or causes to be disturbed any existing contamination which has the potential to adversely affect HS1 property in addition to any other rights—

(a)the Company may give the undertaker a notice specifying the remedial action it reasonably requires and a reasonable period for the undertaker to do it; and

(b)the undertaker shall undertake the remedial action within the stated period at its own costs and to the Company’s reasonable satisfaction.

(5) If the undertaker does not complete the remedial action within the stated period, the Company may do so and the undertaker shall pay the costs which the Company incurs in doing so plus 7% on account of overheads (on demand and as a debt) provided that any such delay could have been avoided by the undertaker acting reasonably.

(6) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of the Company or its servants, contractors or agents, or any liability on the Company with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or the undertaker’s employees, contractors or agents.

102.  The undertaker must—

(a)at all times afford reasonable facilities to the engineer for access to a specified work or protective work during its construction; and

(b)supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or protective work or the method of constructing it.

103.  The Company must at all times afford reasonable facilities to the undertaker and the undertaker’s agents for access to any works carried out by the Company under this Part of this Schedule during their construction and must supply the undertaker with such information as the undertaker may reasonably require with regard to such works or the method of constructing them.

104.—(1) If any permanent or temporary alterations or additions to HS1 property are reasonably necessary in consequence of the construction of a specified work or a protective work, or during a period of 12 months after the completion of that work in order to ensure the safety of HS1 property or the continued safe operation of the railway of the Company, such alterations and additions may be carried out by the Company and if the Company gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (and the notice must specify details of alterations and additions including the costs of carrying out, and in the case of any permanent alterations or additions, maintaining, working and, when necessary, renewing such alterations or additions), the undertaker must pay to the Company the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be properly and reasonably incurred by the Company in maintaining, working and, when necessary, renewing any such alterations or additions provided the undertaker acting reasonably approves the costs contained in the notice provided under this paragraph prior to the works being carried out.

(2) If during the construction of a specified work or a protective work by the undertaker, the Company gives notice to the undertaker that the Company desires itself to construct that part of the specified work or protective work which in the reasonable opinion of the engineer is endangering the stability of HS1 property or the safe operation of traffic on High Speed 1 then, if the undertaker decides that part of the specified work or protective work is to be constructed, the Company must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any such approval of a specified work or protective work under paragraph100, pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may suffer by reason of the execution by the Company of that specified work or protective work provided that the undertaker is not liable under this paragraph for any injury, loss, damage, costs arising from the negligence of the Company or any person for whom it is responsible in respect of any specified or protective works under.

(3) If the cost of maintaining, working or renewing HS1 property are reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be notified to the undertaker by the Company as soon as reasonably practicable and is to be set off against any sum payable by the undertaker to the Company under this paragraph.

(4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph105 provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(5) Other than as expressly set out in this Part of this Schedule, the Company shall have no liability to the undertaker arising out of or in consequence of any works to which this Part of this Schedule applies save where the Company or its contractors have been negligent. This applies whatever the manner in which liability might otherwise have arisen (whether for breach of contract, in tort, for breach of statutory duty or otherwise) and whether such liability would otherwise have arisen in respect of losses, damages, costs, liabilities, injuries, actions, claims, proceedings or matters suffered or incurred by or brought against the undertaker (including, without limitation, in respect of any works carried out pursuant to paragraphs100(6),100(8) or104(2) of this Part of this Schedule) of the Company or otherwise.

(6) Where has liability to the undertaker under this Schedule shall use best endeavours to pursue its appointed consultant(s) and contractor(s) in respect of the remedying defects in the relevant works in accordance with the terms of their appointments. To the extent that recovers any monies from such consultant(s) or contractor(s) the Company shall pay or apply such monies as can, in its reasonable opinion, be apportioned works—

(a)first in meeting its own costs, liabilities and losses (current, anticipated or otherwise) (if any); and

(b)any balance then being paid to the undertaker.

105.  The undertaker must repay to the Company all fees, costs, charges and expenses properly and reasonably incurred by the Company—

(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph100 or in constructing any protective works including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b)in respect of the reasonable approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work or a protective work;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting HS1 property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work or a protective work;

(d)in respect of any special traffic working resulting from any speed restrictions which may in the reasonable opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or a protective work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e)in respect of any additional temporary lighting of HS1 property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work or a protective work,

provided that the undertaker is not liable for any injury, loss, damage, costs nor is the undertaker required to repay any sums under paragraphs (a) to (e) which arise from, or in connection with, the Company in carrying out any specified works or protective works negligently.

106.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with the Company’s apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of the Company’s apparatus;

“Company’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by the Company for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to the Company’s apparatus carried out after approval of plans under paragraph100(2) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with the Company (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a)the undertaker must consult with the Company as early as reasonably practicable to identify all of the Company’s apparatus which may be at risk of EMI, and must continue to consult with the Company (both before and after formal submission of plans under paragraph100(2)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b)the Company must make available to the undertaker all information in the possession of the Company reasonably requested by the undertaker in respect of the Company’s apparatus identified under paragraph (a); and

(c)the Company must allow the undertaker reasonable facilities for the inspection of the Company’s apparatus identified under paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to the Company’s apparatus, the Company must not withhold or delay its consent unreasonably to modifications of the Company’s apparatus, but the means of prevention and the method of their execution must be selected at the reasonable discretion of the Company, and in relation to such modifications paragraph100(2) has effect subject to this paragraph.

(6) If at any time prior to the completion of the authorised development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by the Company of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to the Company’s apparatus.

(7) In the event of EMI having occurred—

(a)the undertaker must afford reasonable facilities to the Company for access to the undertaker’s apparatus in the investigation of such EMI;

(b)the Company must afford reasonable facilities to the undertaker for access to the Company’s apparatus in the investigation of such EMI; and

(c)the Company must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of the Company’s apparatus or such EMI.

(8) Where the Company approves modifications to the Company’s apparatus under sub-paragraphs (5) or (6)—

(a)the Company must allow the undertaker reasonable facilities for the inspection of the relevant part of the Company’s apparatus; and

(b)any modifications to the Company’s apparatus approved under those paragraphs must be carried out and completed by the undertaker in accordance with paragraph101.

(9) If any changes in the operation of High Speed 1 cause EMI (whether or not measures have been adopted pursuant to sub-paragraph (3)) then the undertaker shall as quickly as reasonably practicable after notification by the Company of EMI take all measures necessary to remedy the same by way of modification to the source of such EMI or (as the case may be) further protective works or modification to the specified works or the Company’s apparatus (subject to the Company’s approval under sub-paragraph (5)).

(10) To the extent that it would not otherwise do so, and unless otherwise expressly stated, the indemnity in paragraph110(1) applies to the costs and expenses reasonably incurred or losses suffered by the Company through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to the Company’s apparatus) or in consequence of any EMI to which sub-paragraph (7) applies.

(11) For the purpose of paragraph104(1) any modifications to the Company’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(12) In relation to any dispute arising under this paragraph the reference in article44 (arbitration) to a single arbitrator to be agreed between the parties is to be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.

107.  If at any time after the completion of a specified work or a protective work, not being a work vested in the Company, the Company gives notice to the undertaker informing it that the state of maintenance of any part of the specified work or protective work appears to be such as adversely affects the operation of HS1 property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work or protective work in such state of maintenance as to not adversely affect HS1 property.

108.  The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work or a protective work in the vicinity of any railway belonging to the Company unless the undertaker has first consulted the Company and the undertaker must comply with the Company’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

109.  Any additional expenses which the Company may properly and reasonably incur in altering, reconstructing or maintaining HS1 property under any powers existing at the making of this Order by reason of the existence of a specified work or a protective work must-provided that 5 business days’ previous written notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker be repaid by the undertaker to the Company.

110.—(1) The undertaker must pay to the Company all reasonable and properly incurred costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (but subject always to the remaining provisions of this paragraph and to article36 (no double recovery)) which may be occasioned to or reasonably incurred by the Company—

(a)by reason of the construction or maintenance of a specified work or a protective work or the failure of it by the undertaker or of any person in the undertaker’s employ or of the undertaker’s contractors; or

(b)by reason of any act or omission of the undertaker or of any person in the undertaker’s employ or of the undertaker’s contractors whilst engaged upon a specified work or a protective work,

and the undertaker must indemnify and keep indemnified the Company from and against each and all losses, claims, demands, actions, proceedings, damages, matters, costs, expenses and liabilities whatsoever arising in any way from, in connection with or relating to a specified work or a protective work or any such failure, act or omission; save where the Company or its contractors have been negligent and the fact that any act or thing may have been done by the Company on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision will not (provided it is done without negligence on the part of the Company or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this paragraph.

(2) The indemnity in sub-paragraph (1) shall include but shall not be limited to any losses, claims, demands, actions, proceedings, damages, matters, costs, expenses and liabilities which arise out of the works in respect of—

(a)any disruption caused to High Speed 1 during the period of the specified works;

(b)any claims for personal injury or death to/concerning employees or third parties;

(c)any loss, damage or environmental damage (to include pollution, contamination, the presence of hazardous substances or waste, and nuisance) to High Speed 1 and/or HS1 property whether temporary or permanent or to any adjoining or neighbouring property (whether real or personal) belonging to, used by or in the possession of the Company and/or any third parties or for which the Company or any such third parties are responsible or liable which results from the specified works;

(d)any financial loss claims brought against the Company, any HS1 group company, any train or freight operating company, or any infrastructure manager, whether or not loss or damage to material property is suffered or incurred;

(e)the carrying out of the specified works, or the failure of any such works;

(f)any act, omission or neglect on the part undertaker, or any person involved in the carrying out of any specified works.

(3) During the period of the specified works, the undertaker shall procure that the undertaker’s contractor is insured against the liabilities referred to herein for an amount to be agreed between the parties (both acting reasonably), and shall provide details of such insurance upon request by the Company. The specified works shall not commence until such insurance has been procured and where requested by the Company evidence of such insurance has been provided.

(4) The Company must—

(a)give the undertaker written notice of any such claims or demands as soon as reasonably possible after the Company became aware of any such claims or demands;

(b)not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior consent of the undertaker (which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand);

(c)take all reasonable steps to mitigate any liabilities relating to such claims or demands; and

(d)keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.

111.  The Company must, on receipt of a request from the undertaker, from time to time, provide the undertaker free of charge with a written breakdown of the estimates of the costs, charges, expenses, and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph110 and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made under this Part of this Schedule (including any claim relating to those relevant costs).

112.  In the assessment of any sums payable to the Company under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the Company if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

113.  The undertaker and the Company may, subject to compliance with the terms of the concession agreement, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a)any HS1 property shown on the works plans or land plans and described in the book of reference;

(b)any lands, works or other property held in connection with any such HS1 property; and

(c)any rights and obligations (whether or not statutory) of the Company relating to any HS1 property or any lands, works or other property referred to in this paragraph.

114.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993.

115.  Unless and to the extent agreed otherwise in writing by the parties, to the extent that the protective works and the specified works constitute a single project for the purposes of the CDM Regulations, the undertaker is to act as the only client for the purposes of the CDM Regulations and is to indemnify the Company from and against any, each and all reasonably foreseeable and properly mitigated losses, claims, demands, actions, proceedings, damages, costs, expenses and liabilities arising directly from, in connection with or out of any breach (by the undertaker) of the CDM Regulations provided that the Company shall comply with all health and safety laws and with its obligations under the CDM Regulations, and shall (without prejudice to the generality of the aforesaid) provide all information required by the undertaker in a timely manner and co-operate with the undertaker so as to enable the undertaker to fulfil its duties as the client.

116.  The undertaker must give written notice to the Company if any application is proposed to be made by the undertaker for the Secretary of State’s consent under article7 (consent to transfer benefit of Order) of this Order in relation to HS1 property or any specified works and any such notice must be given no later than 10 business days before any such application is made and must describe or give (as appropriate)—

(a)the nature of the application to be made;

(b)geographical area to which the application relates; and

(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.

117.  The undertaker must no later than 20 Business Days from the date that the documents referred to in article41 (certification of plans, etc.) are submitted to and certified by the Secretary of State in accordance with article41 (certification of plans, etc.), provide a set of those documents to the Company in a digital format reasonably specified by the Company.

118.  Any notice—

(a)from the undertaker which may be provided to the Company under this Part may be given by a contractor of the undertaker; and

(b)from the Company which may be provided to the undertaker, may be provided to the contractor of the undertaker,

provided the undertaker has provided written notification of the contractor to the Company.