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The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014

Type Statutory-Instrument

Publication 2014-09-03

Last updated 2014-09-24

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(10) In the event that the undertaker requires funds to be provided by the promoter in advance of carrying out any works to relocate apparatus in accordance with paragraph 7, the undertaker shall be entitled to submit an invoice to the promoter for the anticipated costs and expenses and the provisions of sub-paragraph (12) shall apply. If the actual costs and expenses incurred by the undertaker in connection with such works are less than the anticipated costs and expenses paid to it by the promoter, then the undertaker shall pay to the promoter such sum as represents the amount of the difference between the anticipated costs and expenses paid by the promoter and the actual costs and expenses incurred by the undertaker.

(11) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (8) has been or is likely to be exceeded, it shall forthwith notify the promoter and shall submit a revised estimate of the relevant costs and expenses to the promoter for agreement. The provisions of sub-paragraphs (8) to (10) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (8) shall be reduced to 7 days.

(12) The undertaker may from time to time, and at least twice a year (and in any event within 12 months of the costs and expenses being incurred) will, issue to the promoter invoices for costs and expenses incurred or, in the case of the costs referred to in sub-paragraph (10), anticipated to be incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (8) or (as the case may be) the revised estimate agreed under sub-paragraph (11). Invoices issued to the promoter for payment shall:

(a) specify the approved purchase order number;

(b) be supported by timesheets and or narratives that demonstrate that the work invoiced has been completed in accordance with the agreed estimate; and

(13) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (8) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (11).

(14) Any amount properly due to the undertaker under this Schedule which is not paid by the date specified in sub-paragraph (12) thereafter carry interest at the rate of 2% above the Bank of England base rate from time to time for the period from such date up to and including the date on which payment (including accrued interest) is made.

Indemnity

13

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

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

(b) indemnify that undertaker for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the undertaker, by reason or in consequence of any such damage or interruption or the undertaker becoming liable to any third party as aforesaid.

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

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

(4) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the promoter and considering their representations.

Ground subsidence monitoring scheme in respect of Undertaker’s apparatus

14

(1) No works of the type referred to in paragraphs 10(1) or 11(1) shall commence until a scheme for monitoring ground subsidence (“referred to in this paragraph as the monitoring scheme”) which is capable of interfering with or risking damage to undertaker’s apparatus has been submitted to and approved by the relevant undertaker, such approval not to be unreasonably withheld or delayed.

(2) The ground subsidence monitoring scheme described in sub-paragraph (1) shall set out—

(a) the apparatus which is to be subject to such monitoring;

(b) the extent of land to be monitored;

(d) the timescales of any monitoring activities; and

(e) the extent of ground subsidence which, if exceeded, shall require the promoter to submit for undertaker’s approval a ground subsidence mitigation scheme in respect of such subsidence in accordance with sub-paragraph (3).

(3) The monitoring scheme required by sub paragraph (1) and (2) must be submitted within 56 days prior to the commencement of any works authorised by this Order or comprised within the authorised development. Any requirements of the undertaker will be notified within 28 days of receipt of the monitoring scheme. Thereafter the monitoring scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker.

(4) As soon as reasonably practicable after any ground subsidence identified by the monitoring activities set out in the monitoring scheme has exceeded the level described in sub-paragraph (2)(e), a scheme setting out necessary mitigation measures (if any) for such ground subsidence (referred to in this paragraph as a “mitigation scheme”) shall be submitted to the undertaker for approval, such approval not to be unreasonably withheld or delayed; and any mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker save that the undertaker retains the right to carry out any further necessary protective works for the safeguarding of their apparatus and can recover any such costs in line with paragraph (12).

(5) If the monitoring scheme or mitigation scheme would conflict with any aspect of any ground subsidence monitoring scheme or ground subsidence mitigation scheme approved by the relevant planning authority pursuant to Schedule 3 (requirements) the promoter may submit a revised monitoring scheme or mitigation scheme to the undertaker for its approval, such approval not to be unreasonably withheld or delayed; and the revised monitoring scheme or mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the undertaker.

Enactments and agreements

15

Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and an undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.

Co-operation

16

Where in consequence of the proposed construction of any of the authorised development, the promoter or an undertaker requires the removal of apparatus under paragraph 7(2) or an undertaker makes requirements for the protection or alteration of apparatus under paragraphs 10 or 11, the promoter shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the undertaker’s undertaking and each undertaker shall use its best endeavours to co-operate with the promoter for that purpose.

Access

17

If in consequence of the agreement reached in accordance with paragraph 6 or the powers granted under this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

18

Any difference or dispute arising between the promoter and an undertaker under this Schedule shall, unless otherwise agreed in writing between the promoter and that undertaker, be determined by arbitration in accordance with article 63 (arbitration).

SECTION 2

Application

1

For the protection of the undertaker referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker, have effect.

Interpretation

2

In this Schedule—

“1991 Act” means the New Roads and Street Works Act 1991;

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

“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by the undertaker which for the avoidance of doubt will include substation buildings and chambers; “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, across, along or upon land; “plan” includes a section and description of the works to be executed;

“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;

“undertaker” means London Power Networks PLC.

3

This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Temporarily stopped up streets

4

Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), the undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5

(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of the undertaker or any interruption in the supply of electricity by the undertaker is caused, the promoter shall—

(a) bear and pay the cost reasonably incurred by the undertaker in connection with the obstruction or reduction in convenience of the access to any apparatus and or making good such damage or restoring the supply; and

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker (including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay to its customers by statute and reasonable ex gratia payments made to customers in addition thereto) by reason or in consequence of any such obstruction or reduction in convenience of the access to any apparatus or damage or interruption.

(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any obstruction or reduction in convenience of the access to any apparatus or damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.

(3) The undertaker shall give the promoter reasonable notice of any such claim or demand or intended ex gratia payment to be made and no settlement or compromise thereof shall be made without the consent of the promoter (such consent not to be unreasonably withheld or delayed) who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Acquisition of land

6

Regardless of any provision in this Order or anything shown on the land plans, the promoter shall not acquire any apparatus otherwise than by agreement.

Removal of apparatus

7

(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of the undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker not less than 56 days’ written notice of that requirement, together with a plan and draft programme of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order the undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), on terms no less favourable on the whole to the undertaker than those that relate to the apparatus to be removed afford to the undertaker the necessary—

(a) facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter is unable to afford or procure 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 undertaker shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, but for the avoidance of doubt such reasonable endeavours shall not include the exercise of the undertaker’s statutory powers unless the undertaker elects to do so.

(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in accordance with the undertaker’s specifications, standards, policies and procedures and in such manner and in such line or situation as may be agreed between the undertaker and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(5) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 no longer required by virtue of the construction and bringing into service of the alternative apparatus as required by the promoter to be removed under the provisions of this part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker 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 of the promoter in accordance with the exercise of the powers conferred by this Order, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker provided that such works are undertaken by the promoter and or its subcontractors in accordance with the undertaker’s plans, specifications, standards and policies and is undertaken by contractors who are approved to work on the undertaker’s apparatus and carry insurances acceptable to the undertaker. Any superintendence given by the undertaker shall not reduce the promoter’s liability under this Schedule.

(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

8

(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to the undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as are no less favourable on the whole to the undertaker than those that related to the removed apparatus or as may otherwise be agreed between the promoter and the undertaker or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—

(a) give effect to all reasonable requirements of the promoter and the undertaker for ensuring the safety and efficient operation of the authorised development and the undertaker’s distribution network and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by the promoter 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 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 arbitrator shall make such provision for the payment of compensation by the promoter to the undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus— protection

9

(1) Not less than 56 days before starting the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus (wherever situated) the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker a plan.

(2) In relation to works which will or may be situated over or within 90 metres measured in any direction of, or (wherever situated) may impose any load directly or indirectly upon any apparatus or remove from or impact upon support for any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—

(a) the exact position of the works;

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

(d) the position of all apparatus within 90 metres of the works or upon which the works will or may impose a load or may remove from or affect support for any apparatus;

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

(f) the proposed programme for carrying out such works; and

(g) the proposed measure to mitigate the impact of such works on the undertaker’s apparatus.

(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.

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

(a) may be given subject to reasonable conditions for any purpose mentioned in subparagraph (6); and

(b) shall not be unreasonably withheld.

(5) If the undertaker fails to respond to a plan submitted under subparagraph (1) within 35 days of its submission, the promoter may send a written reminder to the undertaker, and if the undertaker has is neither given nor refused its approval within 14 days of the issue of such reminder, such approval it shall be deemed to have been given.

(6) In relation to a work to which sub-paragraph (2) applies, the undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus.

(7) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (8) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus, and the undertaker shall be entitled to watch and inspect the execution of those works.

(8) Any requirements made by the undertaker under sub-paragraph (7) shall be made within a period of 56 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(9) If the undertaker, in accordance with sub-paragraph (8) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).

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

(11) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (7) insofar as is reasonably practicable in the circumstances.

Expenses

10

(1) Subject to the following provisions of this paragraph, the promoter shall repay to the undertaker the reasonable costs and expenses actually incurred (including both internal and external costs and expenses) by the undertaker in reviewing any plans or proposals submitted to it in connection with this part of this Schedule, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this part of this Schedule.

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated by the undertaker 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 promoter (such agreement not to be unreasonably withheld or delayed) or, in default of agreement, is not determined by arbitration in accordance with article 63 (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 undertaker by virtue of sub-paragraph (1) shall 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 shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus;

(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 shall be treated as if it also had been agreed or had been so determined; and

(c) where the replacement of existing apparatus with apparatus of a better type, of greater capacity or of greater dimensions is dictated by the undertaker’s current written standards, policies or procedures in place at the time of replacement, this shall not be treated as a placing of apparatus of a better type, of greater capacity or of greater dimensions than those of the existing apparatus.

(5) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 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.

(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 10 (expenses) that it reasonably expects to incur.

(7) The promoter and the undertaker will use their reasonable endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.

(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 28 days of the estimate being agreed under sub-paragraph (7) and in any event not less than 30 days before work is due to commence.

(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall as soon as reasonably practicable notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 14 days.

(10) The undertaker may from time to time issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—

(a) specify the approved purchase order number;

(b) include reasonable supporting evidence that such sums as have been invoiced have been incurred or are committed to be incurred in accordance with the agreed estimate; and

(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).

Compensation

11

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Order, 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 the undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the undertaker, the promoter shall—

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

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker, by reason or in consequence of any such damage or interruption including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay by statute and reasonable ex gratia payments made to customers.

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

(3) The undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent (such not to be unreasonably withheld or delayed) of the promoter who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Enactments and agreements

12

Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the promoter and the undertaker in respect of any apparatus laid or erected in land belonging to the promoter on the date on which this Order is made.

Co-operation

13

Where in consequence of the proposed construction of any of the authorised development, the promoter or the undertaker requires the removal of apparatus under paragraph 7(2) or the undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and the undertaker shall use its best endeavours to co-operate with the promoter for that purpose.

Access

14

If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to operate, maintain, repair or replace or use the apparatus no less safely, efficiently, economically and effectively than was possible before such obstruction.

Arbitration

15

Any difference or dispute arising between the undertaker and the promoter under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the promoter, be referred to and settled by arbitration under article 63 (arbitration).

SECTION 3 — Other electricity undertakers

Application

1

For the protection of the undertakers referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker, have effect.

Interpretation

2

In this Schedule—

“1991 Act” means the New Roads and Street Works Act 1991;

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

“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by the undertaker which for the avoidance of doubt will include substation buildings and chambers; “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, across, along or upon land; “plan” includes a section and description of the works to be executed;

“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;

“undertaker” means any licence holder (save for National Grid Electricity Transmission plc and London Power Networks plc) within the meaning of Part 1 of the Electricity Act 1989.

3

This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Temporarily stopped up streets

4

Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), the undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5

(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures)and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of the undertaker or any interruption in the supply of electricity by the undertaker is caused, the promoter shall—

(a) bear and pay the cost reasonably incurred by the undertaker in connection with the obstruction or reduction in convenience of the access to any apparatus and or making good such damage or restoring the supply; and

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker (including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay to its customers by statute and reasonable ex gratia payments made to customers in addition thereto) by reason or in consequence of any such obstruction or reduction in convenience of the access to any apparatus or damage or interruption.

(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any obstruction or reduction in convenience of the access to any apparatus or damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.

(3) The undertaker shall give the promoter reasonable notice of any such claim or demand or intended ex gratia payment to be made and no settlement or compromise thereof shall be made without the consent of the promoter (such consent not to be unreasonably withheld or delayed) who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Removal of apparatus

6

(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of the undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker not less than 56 days’ written notice of that requirement, together with a plan and draft programme of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order the undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), on terms no less favourable on the whole to the undertaker than those that relate to the apparatus to be removed afford to the undertaker the necessary—

(a) facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter is unable to afford or procure 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 undertaker shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, but for the avoidance of doubt such reasonable endeavours shall not include the exercise of the undertaker’s statutory powers unless the undertaker elects to do so.

(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in accordance with the undertaker’s specifications, standards, policies and procedures and in such manner and in such line or situation as may be agreed between the undertaker and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(5) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 no longer required by virtue of the construction and bringing into service of the alternative apparatus as required by the promoter to be removed under the provisions of this part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker 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 of the promoter in accordance with the exercise of the powers conferred by this Order, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker provided that such works are undertaken by the promoter and or its subcontractors in accordance with the undertaker’s plans, specifications, standards and policies and is undertaken by contractors who are approved to work on the undertaker’s apparatus and carry insurances acceptable to the undertaker. Any superintendence given by the undertaker shall not reduce the promoter’s liability under this Schedule.

(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

7

(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to the undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as are no less favourable on the whole to the undertaker than those that related to the removed apparatus or as may otherwise be agreed between the promoter and the undertaker or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—

(a) give effect to all reasonable requirements of the promoter and the undertaker for ensuring the safety and efficient operation of the authorised development and the undertaker’s distribution network and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by the promoter 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 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 arbitrator shall make such provision for the payment of compensation by the promoter to the undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus— protection

8

(1) Not less than 56 days before starting the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus (wherever situated) the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker a plan.

(2) In relation to works which will or may be situated over or within 90 metres measured in any direction of, or (wherever situated) may impose any load directly or indirectly upon any apparatus or remove from or impact upon support for any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—

(a) the exact position of the works;

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

(d) the position of all apparatus within 90 metres of the works or upon which the works will or may impose a load or may remove from or affect support for any apparatus;

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

(f) the proposed programme for carrying out such works; and

(g) the proposed measure to mitigate the impact of such works on the undertaker’s apparatus.

(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.

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

(a) may be given subject to reasonable conditions for any purpose mentioned in subparagraph (6); and

(b) shall not be unreasonably withheld.

(5) If the undertaker fails to respond to a plan submitted under subparagraph (1) within 35 days of its submission, the promoter may send a written reminder to the undertaker, and if the undertaker has is neither given nor refused its approval within 14 days of the issue of such reminder, such approval it shall be deemed to have been given.

(6) In relation to a work to which sub-paragraph (2) applies, the undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus.

(7) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (8) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus, and the undertaker shall be entitled to watch and inspect the execution of those works.

(8) Any requirements made by the undertaker under sub-paragraph (7) shall be made within a period of 56 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(9) If the undertaker, in accordance with sub-paragraph (8) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).

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

(11) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (7) insofar as is reasonably practicable in the circumstances.

Expenses

9

(1) Subject to the following provisions of this paragraph, the promoter shall repay to the undertaker the reasonable costs and expenses actually incurred (including both internal and external costs and expenses) by the undertaker in reviewing any plans or proposals submitted to it in connection with this part of this Schedule, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this part of this Schedule.

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated by the undertaker 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,

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

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

(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 shall be treated as if it also had been agreed or had been so determined; and

(c) where the replacement of existing apparatus with apparatus of a better type, of greater capacity or of greater dimensions is dictated by the undertaker’s current written standards, policies or procedures in place at the time of replacement, this shall not be treated as a placing of apparatus of a better type, of greater capacity or of greater dimensions than those of the existing apparatus.

(5) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 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.

(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 9 that it reasonably expects to incur.

(7) The promoter and the undertaker will use their reasonable endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.

(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 28 days of the estimate being agreed under sub-paragraph (7) and in any event not less than 30 days before work is due to commence.

(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall as soon as reasonably practicable notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 14 days.

(10) The undertaker may from time to time issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—

(a) specify the approved purchase order number;

(b) include reasonable supporting evidence that such sums as have been invoiced have been incurred or are committed to be incurred in accordance with the agreed estimate; and

(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).

Enactments and agreements

10

Co-operation

11

Access

12

Arbitration

13

SECTION 4

Application

1

Interpretation

2

In this Schedule—

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

“apparatus” means, in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply; “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, across, along or upon land; “plan” includes a section and description of the works to be executed;

“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;

“undertaker” means a gas transporter (save for National Grid Gas plc) within the meaning of Part 1 of the Gas Act 1986.

3

This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Temporarily stopped up streets

4

Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), an undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5

(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of any undertaker or any interruption in the supply of gas, as the case may be, by the undertaker is caused, the promoter shall—

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

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by that undertaker, by reason or in consequence of any such damage or interruption.

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

(3) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of the promoter who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Removal of apparatus

6

(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of an undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.

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

(a) facilities and rights for the construction of alternative apparatus in other land of the promoter; 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 the promoter, or the promoter 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 undertaker in question shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(5) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 promoter to be removed under the provisions of this part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the 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 of the promoter, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(7) Nothing in sub-paragraph (6) shall authorise the promoter to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

Facilities and rights for alternative apparatus

7

(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to an undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the promoter and the undertaker in question or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—

(a) give effect to all reasonable requirements of the promoter for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions (if any) applicable to the apparatus constructed in the authorised development for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by the promoter 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 more or less favourable on the whole to the 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 shall make such provision for the payment of compensation to or by the promoter by or to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus— protection

8

(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 7(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker in question a plan.

(2) In relation to works which will or may be situated over or within 15 metres measured in any direction of, or (wherever situated) impose any load directly upon any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—

(a) the exact position of the works;

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

(d) the position of all apparatus within 15 metres of the works or upon which the works will impose a load; and

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

(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.

(4) Any approval of the undertaker required under sub-paragraph (2)—

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

(b) shall not be unreasonably withheld; and

(c) shall be deemed to have been given if it is neither given nor refused within 21 days of the submission of plans for approval.

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

(6) Works of the type referred to in paragraph 7(2) shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (7) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the undertaker shall be entitled to watch and inspect the execution of those works.

(7) Any requirements made by an undertaker under sub-paragraph (6) shall be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(8) If an undertaker in accordance with sub-paragraph (7) and in consequence of the works proposed by the promoter, reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, paragraphs 1 to 3 and 5 to 8 shall apply as if the removal of the apparatus had been required by the promoter under paragraph 7(2).

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

(10) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (6) insofar as is reasonably practicable in the circumstances.

Expenses

9

(1) Subject to the following provisions of this paragraph, the promoter shall repay to an undertaker the reasonable expenses incurred by that undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2).

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions 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 promoter or, in default of agreement, is not determined by arbitration in accordance with article 63 (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 undertaker in question by virtue of sub-paragraph (1) shall 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 shall 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 shall 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 undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 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.

(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 9 that it reasonably expects to incur.

(7) The promoter and the undertaker will use their best endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.

(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 21 days of the estimate being agreed under sub-paragraph (7).

(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall forthwith notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 7 days.

(10) The undertaker may from time to time, and at least bi-monthly issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—

(a) specify the approved purchase order number;

(b) be supported by timesheets and narratives that demonstrate that the work invoiced has been completed in accordance with the agreed estimate; and

(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).

Enactments and agreements

10

Co-operation

11

Where in consequence of the proposed construction of any of the authorised development, the promoter or an undertaker requires the removal of apparatus under paragraph 7(2) or a specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and each specified undertaker shall use its best endeavours to co-operate with the undertaker for that purpose.

Access

12

If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will, so far as reasonably practicable, enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

13

PART 2 — THE PORT OF LONDON AUTHORITY

1

The provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the Port of London Authority, have effect for the protection of the Port of London Authority.

2

The construction or carrying out of any tidal work is not subject to any of the controls in sections 66-75 of the 1968 Act.

Definitions

3

In this Part of this Schedule—

“the 1968 Act” means the Port of London Act 1968;

“detailed submission programme” means a programme setting out the anticipated dates for submissions seeking approval of detailed design of tidal works under paragraph 4;

“navigational risk assessment” means assessment of any potential risk of the tidal works at each site, and shall contain the following information: existing navigational features including extent of authorised channels, existing navigational structures and constraints; tidal characteristics; existing river uses; general navigational arrangements; existing site specific issues; existing navigational risks; proposed navigational strategies; delivery schedules; and such other details as agreed between the undertaker and the Authority;

“permanent work” means any work or structure forming part of the authorised development that is required for the construction and operation of the authorised project that is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;

“plans and sections” includes sections, elevations, drawings, calculations, specifications, programmes, method statements, assessments of navigational risk and hydraulic information relating to the construction, carrying out and, where appropriate, removal of any tidal work;

“scour and accretion monitoring and mitigation strategy” means a scour and accretion monitoring and mitigation strategy for the tidal works to be submitted to the Authority including, but not limited to, results and clarification of existing and further works, and the extent, frequency, and form of the monitoring and mitigation for scour and accretion;

“scour and accretion monitoring and mitigation plan” means a plan prepared in accordance with paragraph 17;

“site” means Putney Embankment Foreshore, Carnwath Road Riverside, Dormay Street, Cremorne Wharf Depot, Chelsea Embankment Foreshore, Kirtling Street, Heathwall Pumping Station, Albert Embankment Foreshore, Victoria Embankment Foreshore, Blackfriars Bridge Foreshore, Chambers Wharf, Greenwich Pumping Station and King Edward Memorial Park Foreshore, Abbey Mills or any of them;

“specified day” means, in relation to any tidal work, the business day on which plans and sections of that work are received by the Authority under paragraph 5(1);

“temporary work” means any work or structure forming part of the authorised development that is not required for the operation of the authorised project and which is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;

“tidal work” means any permanent or temporary work or operation excluding any tunnelling works, constructed or carried out under this order that is, or may be on, in, under or over the surface of land below mean high water level forming part of the river, including any projection over the river outside the order limits by booms, cranes and similar plant or machinery, whether or not they are situated within the order limits; the placing or maintenance of apparatus, plant or equipment; any survey or monitoring works undertaken pursuant to article 22 (authority to survey and investigate land) or maintenance works undertaken pursuant to article 36 (temporary use of land for maintaining authorised project) which would if not for the provisions of this order require a licence pursuant to section 66 of the 1968 Act; any such work or operation (including any suspension or extinguishment of public rights of navigation under article 47 (public rights of navigation)) that affects the river or any function of the Authority, whether or not that work or operation is in, over or under the river, but does not include maintenance dredging; and

“tunnelling works” means works 1a to 1d, 3b, 4b, 5b, 7, 10b, 11b, 12b, 14b, 15b, 16b and 20 so far as these works are under the river.

Time limits

4

(1) The time limits for which this Part of this Schedule provides are subject to the provisions of this paragraph.

(2) The undertaker shall submit the detailed submission programme to the Authority for comment.

(3) If, by reason of the number or complexity of the submissions anticipated in the detailed submission programme, the Authority (acting reasonably) is of the view that it could not, while continuing to perform its statutory functions without interruption, comply with any time limit for which this Part of the Schedule provides, the Authority will notify the undertaker in writing within 15 business days of receiving the detailed submission programme.

(4) A notice given under paragraph 4(3) shall include the Authority’s reasonable estimate of the time required for it to deal with the submission or submissions identified pursuant to paragraph 4(3), such an estimate not to exceed 65 business days from the anticipated date of receipt of the relevant submission as identified in the detailed submission programme, and the Authority shall thereafter determine such a submission within the estimate included in its notice given pursuant to this paragraph.

Tidal works: approval of detailed design

5

(1) Before—

(a) commencing the construction or carrying out of a tidal work; or

(b) commencing any operation for the maintenance of a tidal work,

the undertaker shall submit to the Authority plans and sections of the tidal work, a scour and accretion monitoring and mitigation plan relating to the tidal work, a navigational risk assessment, its proposals for any lighting and laying down of buoys to secure the navigational safety of the river in the vicinity of the proposed tidal works (including any area over which public rights of navigation have been suspended) and such further particulars as the Authority may reasonably require.

(2) A tidal work shall not be constructed, carried out or maintained except in accordance with plans and sections approved in writing by the Authority under this paragraph or determined under paragraph 24.

(3) Any approval of the Authority required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable conditions as the Authority may make for the protection of—

(a) traffic in, or the flow or regime of, the river;

(b) the use of its operational land or the river for the purposes of performing its functions; or

(4) Conditions made under paragraph 5(3) may include conditions as to—

(a) the proposed location of any temporary work and its dimensions;

(b) the length of time that any temporary work may be kept in place;

(c) the removal of any temporary work and the undertaking by the undertaker of any related work or operation that the Authority considers to be necessary for the purpose of removing or preventing any obstruction to navigation;

(d) the relocation, provision and maintenance of works (other than tidal works), moorings, apparatus and equipment necessitated by the tidal work; and

(e) the expiry of the approval if the undertaker does not commence construction or carrying out of the approved tidal work within a prescribed period.

(5) Subject to paragraph 5(6) and paragraph 5(7), an application for approval under this paragraph shall be deemed to have been refused if it is neither given nor refused within 35 business days of the specified day.

(6) An approval of the Authority under this paragraph shall not be deemed to have been unreasonably withheld if approval within the time limit specified by paragraph 5(5) has not been given pending the outcome of any consultation on the approval in question that the Authority is obliged to carry out in the proper exercise of its functions.

(7) In the event that the Authority requires further information pursuant to paragraph 5(1), then the Authority shall determine the submission submitted pursuant to paragraph 5(1) as soon as reasonably practicable, but in any event no later than 65 business days from the specified day.

(8) An approval of the Authority under this paragraph is evidence that the plans and sections to which the approval relates have been approved only as affecting the Authority, the Authority’s functions and the River in relation to those functions, and does not imply approval or endorsement of the plans and sections for any other purpose.

6

(1) The undertaker shall serve notice on the Authority under Article 47(3) not later than 20 business days prior to the proposed commencement date of any suspension or extinguishment of the public rights of navigation.

(2) Any such notice shall provide details (or in the case of a consent notice, proposed details) of the suspension or extinguishment including particulars of:

(a) commencement date;

(b) duration; and

and in the case of a consent notice shall include an explanation of the need for the proposed closure.

(3) Any suspension of the public rights of navigation under article 47(2) shall not take place except in accordance with approval in writing by the Authority and any conditions imposed by the Authority under this paragraph or determined under paragraph 24.

(4) The Authority may in relation to any consent notice impose reasonable conditions for any purpose described in paragraph 6(3).

(5) Conditions imposed under paragraph 6(4) may include conditions as to–

(a) the limits of any area subject to a temporary suspension of public rights of navigation;

(b) the duration of any temporary suspension;

(c) the means of marking or otherwise providing warning in the river of any area affected by a temporary suspension or permanent extinguishment of public rights of navigation; and

(d) the use by the undertaker of the area subject to any temporary suspension so as not to interfere with any other part of the river or affect its use.

(6) For the purposes of Article 47(4) the Authority shall issue its notice to mariners:-

(a) in relation to a temporary suspension or permanent extinguishment under article 47(1) within 15 business days of receipt of the undertaker’s notice served pursuant to paragraph 6(1);

(b) in relation to a temporary suspension under Article 47(2) within 15 business days of consent to the suspension being given by the Authority or determined pursuant to paragraph 24.

(7) Sub-paragraphs (5), (6) and (7) of paragraph 5 apply to any application for consent made by the undertaker under Article 47(2).

(8) In this paragraph “consent notice” means a notice relating to temporary suspension requiring consent under Article 47(2).

General provision as to construction of works including inspection

7

The construction or carrying out of any tidal work shall, once commenced, be carried out by the undertaker with all reasonable dispatch and to the reasonable satisfaction of the Authority so that river traffic, the flow or regime of the river and the exercise of the Authority’s functions shall not suffer more interference than is reasonably practicable, and the Authority shall be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.

Works to river banks

8

The undertaker shall not, in exercise of the powers conferred by article 19 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved (or determined under paragraph 24) as a tidal work or is otherwise approved in writing by the Authority.

Discharges etc.

9

(1) The undertaker shall not without the consent of the Authority—

(a) deposit in or allow to fall or be washed into the river any gravel, soil or other material;

(b) discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise; or

(2) Any consent of the Authority under this paragraph shall not be unreasonably withheld but may be given subject to such terms and conditions as the Authority may reasonably impose.

(3) Any such consent shall be deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 5 business days of the day on which the request for consent is submitted under paragraph 9(1).

(4) Article 19 (discharge of water) has effect subject to this paragraph.

Navigational lights, buoys, etc

10

(1) The undertaker shall, at or near any tidal work, and any other work below mean high water level of which the undertaker is in possession, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Authority may from time to time reasonably require.

(2) The Authority shall give the undertaker not less than 20 business days written notice of a requirement under paragraph 10(1) except in the case of emergency when the Authority shall give such notice as is reasonably practicable.

(3) Without prejudice to section 133 of the 1968 Act (Lights detrimental to navigation), the undertaker shall comply with the directions of the Harbour Master from time to time with regard to the lighting on the tidal works, or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river.

Removal etc of the Authority’s moorings and buoys

11

(1) Subject to paragraph 11(2), if by reason of the construction of any tidal work it is reasonably necessary for the Authority to incur the cost of—

(a) temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Authority;

(b) laying down and removing substituted moorings or buoys; or

not being costs which it would have incurred for any other reason, the undertaker shall pay the costs reasonably so incurred by the Authority.

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