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The East Midlands Gateway Rail Freight Interchange and Highway Order 2016

Type Statutory-Instrument

Publication 2016-01-12

Last updated 2017-12-28

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(8) the East Midlands Gateway Rail Freight Interchange and Highway Order 2016[^f00044], in relation to that person, ceases to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice is deemed to have been served in respect of that interest on such date as the tribunal directs. (1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)— (a) a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Upper Tribunal (“the tribunal”); and (b) before the tribunal has determined that question the tribunal is satisfied that the person has an interest in the whole of the relevant land and is able and willing to sell that land and— (i) where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land; or (ii) where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs, (2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section is determined by the tribunal. (3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of 6 weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice.

6

The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a) section 9(4) (failure by owners to convey);

(b) paragraph 10(3) of Schedule 1 (owners under incapacity);

(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7

Section 11 (powers of entry) of the 1965 Act[^f00045] is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right (which is deemed for this purpose to have been created on the date of service of the notice); and sections 12[^f00046] (penalty for unauthorised entry) and 13[^f00047] (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8

Section 20 of the 1965 Act[^f00048] (protection for interests of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9

Section 22 of the 1965 Act (interests omitted from purchase) is modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

SCHEDULE 15 — FOR THE PROTECTION OF NATIONAL GRID

Application

1

For the protection of National Grid the following provisions, unless otherwise agreed in writing between the undertaker and National Grid, have effect.

Interpretation

2

In this Schedule—

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

“apparatus” means—in the case of electricity, electric lines or electrical plant as defined in the Electricity Act 1989[^f00049], belonging to or maintained by National Grid Electricity Plc for the purposes of electricity supply; andin the case of a gas, any mains, pipes or other apparatus belonging to or maintained by a National Grid Gas Plc 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 such land;

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

“National Grid” means National Grid Gas Plc (company number 2006000) and National Grid Electricity Transmission Plc (company number 2366977), both registered at 1-3 Strand, London WC2N 5EH); and

“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.

3

This Schedule does 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 stopped up streets

4

(1) Where any street is stopped up under article 11 (stopping up of streets), and any apparatus is in the street or accessed via that street, National Grid is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street.

(2) Regardless of the temporary stopping up or diversion of any street under the powers of article 13 (temporary stopping up of streets), National Grid is at liberty at all times to take all necessary access across any such stopped up street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that street.

Acquisition of land

5

Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker must not acquire any land interest or apparatus, or override any easement or other interest, of National Grid otherwise than by agreement.

Removal of apparatus

6

(1) If, in the exercise of the agreement reached in accordance with sub-paragraph (5) or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed, and any right of 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) inclusive.

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid 56 days’ advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its satisfaction (taking into account paragraph 7(1)) the necessary facilities and rights for—

(a) the construction of alternative apparatus in other land of 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 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, on receipt of a written notice to that effect from the undertaker, must take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation must not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.

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

(5) National Grid must after the alternative apparatus to be provided or constructed has been agreed, and subject to 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 undertaker to be removed under the provisions of this Schedule.

(6) For the avoidance of doubt this Schedule applies to apparatus the removal of which is covered by article 32 (apparatus and rights of statutory undertakers in stopped up streets).

Facilities and rights for alternative apparatus

7

(1) Where, in accordance with the provisions of this Schedule, the undertaker affords to National Grid facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and 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 agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject then the matter must be determined by arbitration in accordance with article 41 (arbitration) 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 for gas undertakers

8

(1) In this paragraph only, apparatus means apparatus belonging to or maintained by National Grid Gas Plc for the purpose of gas supply and National Grid means National Grid Gas Plc.

(2) Not less than 56 days before the commencement of any authorised works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2) or otherwise, the undertaker must submit to National Grid a plan of such works.

(3) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid under sub-paragraph (2) must be detailed including a method statement and 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;

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

(f) intended maintenance regimes.

(4) The undertaker must not commence any works to which sub-paragraph (3) applies 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-paragraph (6) or (8); and

(b) must not be unreasonably withheld.

(6) In relation to a work to which sub-paragraph (3) applies, National Grid 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.

(7) Works to which sub-paragraph (3) applies must be executed only in accordance with the plan, submitted under sub-paragraph (2) or as relevant sub-paragraph (10), 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-paragraph (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 is entitled to watch and inspect the execution of those works.

(8) Where National Grid requires any protective works to be carried out either by itself or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to National Grid’s satisfaction prior to the commencement of any relevant part of the authorised development and National Grid must give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (2) or (10) (except in an emergency).

(9) If National Grid in accordance with sub-paragraph (6) or (8) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (2) to (4) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

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

(11) The undertaker is not required to comply with sub-paragraph (2) 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—

(a) comply with sub-paragraph (3) and (4) in so far as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under the Order the undertaker must comply with National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22” and HSE’s “HSG47 Avoiding Danger from underground services”.

Retained apparatus: protection for electricity undertakers

9

(1) In this paragraph only, “apparatus” means apparatus belonging to or maintained by National Grid Electricity Transmission Plc for the purpose of electricity supply and “National Grid” means National Grid Electricity Transmission Plc.

(2) Not less than 56 days before the commencement of any authorised works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2) or otherwise, the undertaker must submit to National Grid a plan of such works and seek from National Grid details of the underground extent of its electricity tower foundations.

(3) In relation to works which will or may be situated on, over, under or within—

(a) 15 metres measured in any direction of any apparatus; or

(b) involve embankment works within 15 metres of any apparatus,

the plan to be submitted to National Grid under sub-paragraph (2) must be detailed including a method statement and describing—

(i) the exact position of the works;

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

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

(iv) the position of all apparatus;

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

(vi) details of a scheme for monitoring ground subsidence if required by National Grid.

(4) 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 to National Grid under sub-paragraph (2) must be detailed including a method statement and describing in addition to the matters set out in sub-paragraph (3)—

(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;

(d) details of 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 the cable route;

(f) written details of the operations and maintenance regime for the 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 26 tonnes to take the weight of overhead lines (OHL) construction traffic.

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

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

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (7) or 9); and

(b) must not be unreasonably withheld.

(7) In relation to a work to which sub-paragraphs (3) or (4) apply, National Grid 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.

(8) Works to which sub-paragraphs (3) and (4) apply must be executed only in accordance with the plan submitted under sub-paragraph (2) or as relevant sub-paragraph (11), 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-paragraph (7) or (9) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid is entitled to watch and inspect the execution of those works.

(9) Where National Grid require any protective works to be carried out either by itself or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to National Grid’s satisfaction prior to the commencement of any relevant part of the authorised development and National Grid must give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraphs (2) or (11) (except in an emergency).

(10) If National Grid in accordance with sub-paragraphs (7) or (9) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (2) to (4) and (7) to (9) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

(11) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, 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.

(12) The undertaker is not be required to comply with sub-paragraph (2) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works and must—

(a) comply with sub-paragraphs (3), (4) and (5) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (13) at all times.

(13) At all times when carrying out any works authorised under the Order 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

10

(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all charges, costs and expenses reasonably incurred by it in, or in connection with, the inspection, removal, relaying or replacing, 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 Schedule including without limitation—

(a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that National Grid elects to use compulsory powers to acquire any necessary rights under paragraph 6(3) all costs incurred as a result of such action;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

(d) the approval of plans;

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

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

(2) The value of any apparatus removed under the provisions of this Schedule or article 32 (apparatus and rights of statutory undertakers in stopped up streets), and which is not re-used as part of the alternative apparatus, must be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.

(3) If in accordance with the provisions of this 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 settled by arbitration in accordance with article 41 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph (1) is to be reduced by the amount of that excess except where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs must 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 is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

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

(5) An amount which apart from this sub-paragraph would be payable to National Grid 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 National Grid 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.

Indemnity

11

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development 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 the undertaker) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those 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 must—

(a) bear and pay on demand the cost reasonably 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 as aforesaid.

(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 an undertaker or in accordance with any requirement of an undertaker 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 neglect or default of National Grid, its officers, servants, contractors or agents.

(4) National Grid must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without first consulting the undertaker and considering their representations.

Ground subsidence monitoring scheme in respect of National Grid’s apparatus

12

(1) No works within the distances set out in National Grid’s specification for ‘Safe Working in the Vicinity of National Grid High Pressure Gas Pipelines and Associated Installations – Requirements for Third Parties’ (SSW22) which are capable of interfering with or risking damage to National Grid’s apparatus or alternative apparatus are to commence until a scheme for monitoring ground subsidence (referred to in this paragraph as “the monitoring scheme”) has been submitted to and approved by National Grid, such approval not to be unreasonably withheld or delayed.

(2) The ground subsidence monitoring scheme described in sub-paragraph (1) must 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, would require the undertaker to submit for National Grid’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-paragraphs (1) and (2) must be submitted at least 56 days prior to the commencement of any works authorised by this Order or comprised within the authorised development. Any requirements of National Grid must 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 National Grid.

(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”) must be submitted to National Grid 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 National Grid except that National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 10 (expenses).

Enactments and agreements

13

Nothing in this Schedule affects 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 National Grid on the date on which this Order is made.

Co-operation

14

Where in consequence of the proposed construction of any of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 6(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraphs 8 or 9 the undertaker must use its 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 National Grid’s undertaking and National Grid must use its reasonable endeavours to co-operate with the undertaker for that purpose.

Access

15

If in consequence of the agreement reached in accordance with paragraph 5 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 would enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

16

Any difference or dispute arising between the undertaker and National Grid under this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 41 (arbitration).

SCHEDULE 16 — FOR THE PROTECTION OF THE AIRPORT OPERATOR

1

The undertaker must carry out the authorised development in accordance with the management strategy for the safeguarding of East Midlands Airport.

2

The undertaker must produce a Bird Management Plan to minimise any bird hazard impact (as envisaged in section 4 of the management strategy for the safeguarding of East Midlands Airport) covering the design, construction and operation of the main site and obtain approval to the Bird Management Plan from the airport operator prior to the submission of any details for approval under requirement 7 (detailed design approval). The approval of the Bird Management Plan must not be unreasonably withheld or delayed. The approved Bird Management Plan must then be complied with at all times.

3

The prior approval of the airport operator must be obtained by the undertaker for the installation and operation of any radio communication or radio survey equipment (including any such temporary equipment) within the authorised development, such approval not to be unreasonably withheld or delayed.

4

The undertaker must not obstruct or in any way interfere with the existing access (including all emergency access routes) to the airport, other than in accordance with the carrying out of the authorised development, without the prior consent of the airport operator such consent not to be unreasonably withheld or delayed. Any existing access route which is to be diverted as part of the authorised development must not be closed until the replacement route is constructed and available for use.

5

The prior approval of the airport operator (acting as the statutory aerodrome safeguarding authority) must be obtained by the undertaker for the installation of any solar photovoltaic panels or apparatus within the authorised development, such approval not to be unreasonably withheld or delayed. Any request for such approval must be accompanied by a full solar glare assessment and detailed risk assessment.

6

Any difference or dispute arising between the undertaker and the airport operator under this Schedule must, unless otherwise agreed between the undertaker and the airport operator, be determined by arbitration in accordance with article 41 (arbitration).

SCHEDULE 17 — FOR THE PROTECTION OF SEVERN TRENT WATER LIMITED

The undertaker must carry out the authorised development in accordance with the Construction Management Strategy for Safeguarding the Derwent Valley Aqueduct (Document 6.14).

SCHEDULE 18 — FOR THE PROTECTION OF NETWORK RAIL

1

The following provisions of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 10, any other person on whom rights or obligations are conferred by that paragraph.

2

In this Schedule—

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

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

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of his powers under section 8 (licences) of the Railways Act 1993[^f00050];

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London, NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006[^f00051]) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“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 Infrastructure Limited and: any station, land, works, apparatus and equipment belonging to Network Rail Infrastructure Limited or connected with any such railway; and any easement or other property interest held or used by Network Rail Infrastructure Limited for the purposes of such railway or works, apparatus or equipment; and

“specified work” means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

3

(1) Where under 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 works under this Order.

4

(1) The undertaker must not exercise the powers conferred by article 14 (accesses), article 23 (authority to survey and investigate the land), article 25 (compulsory acquisition of land and rights), article 26 (power to override easements and other rights), article 27 (compulsory acquisition of land – incorporation of the mineral code), article 31 (temporary use of land for carrying out the authorised development), article 33 (operation and use of railways) and article 37 (felling or lopping of trees) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act 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 (extinguishment of rights of statutory undertakers: preliminary notices) or 272 (extinguishment of rights of telecommunications code system operators: preliminary notices) of the 1990 Act, 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 conferred by this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail.

(5) Where Network Rail is asked to give its consent under this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5

(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 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 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 is to 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 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 are to 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.

6

(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

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

(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 on it and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, regardless of 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 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.

7

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 the engineer may reasonably require with regard to a specified work or the method of constructing it.

8

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 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.

9

(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or 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 reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(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 is to be set off against any sum payable by the undertaker to Network Rail under this paragraph.

10

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

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by him of the construction of a specified 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 railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

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

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

11

(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised works 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 works) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised works 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 works take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

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

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(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 under sub-paragraph (a); and

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

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 8 has effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning operations on the authorised railway comprised in the authorised works and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised works 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) 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; and

(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.

(8) Where Network Rail approved modifications to Network Rail’s apparatus under 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 under those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 9.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

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

(11) In relation to any dispute arising under this paragraph the wording in article 41 (arbitration) “the Lands Chamber of the Upper Tribunal” is to be substituted with “the Institution of Electrical Engineers”.

12

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.

13

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.

14

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.

15

(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail—

(a) by reason of the construction or maintenance of a specified work or the failure of such a work; or

(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,

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 does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator under sub‑paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

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

16

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 Schedule (including the amount of the relevant costs mentioned in paragraph 15) 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 Schedule (including any claim relating to those relevant costs).

17

In the assessment of any sums payable to Network Rail under this Schedule no account is to be taken of 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 Schedule or increasing the sums so payable.

18

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

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

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

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

19

Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.

20

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 7 (benefit of 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

21

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 39 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.

SCHEDULE 19 — FOR THE PROTECTION OF HIGHWAYS ENGLAND

Application

1

The provisions of this Schedule have effect.

Interpretation

2

In this Schedule—

“as built information” means one digital copy of the following information—as constructed drawings in both PDF and AutoCAD DWG formats for anything designed by the undertaker;list of supplies and materials, test results and CCTV drawings;product data sheets, technical specifications for all materials used;as constructed information for any utilities discovered or moved during the works;method statements for works carried out;in relation to road lighting, signs and traffic signals any information required by Series 1400 of the Specification for Highway Works;organisation and methods manuals for all products used;as constructed programme;test results and records; andother such information as may be reasonably required by Highways England to be used to update any relevant databases;

“the bond sum” means the sum equal to 110% of the cost of the carrying out of the phase of highway works concerned or such other sum agreed between the undertaker and Highways England;

“the cash surety” means the sum of £200,000.00 or such other sum agreed between the undertaker and Highways England;

“the commuted sums” means the commuted sums calculated in accordance with paragraph 10;

“contractor” means any contractor or sub-contractor appointed by the undertaker to carry out the highway works or any phase of the highway works and approved by Highways England under paragraph 3(2);

“detailed design information” means the following drawings, specifications and other information which must be in accordance with the general arrangements shown on the relevant regulation 6(2) plans—site clearance details;boundary environmental and mitigation fencing;road restraint systems (vehicle and pedestrian);drainage and ducting;earthworks;road pavements;kerbs, footways and paved areas;traffic signs, signals and road markings;road lighting (including columns and brackets);CCTV masts and cantilever masts;electrical work for road lighting and traffic signs;motorway communications;highway structures;landscaping; andutilities diversions,where relevant to the phase concerned;

“estimated costs” means the estimated costs in respect of each phase agreed under paragraph 5(1) and (5);

“the excess” means the amount by which Highways England estimates that the costs referred to in paragraph 5(1) will exceed the estimated costs under paragraph 5(5)(b);

“highway works” means that part of the authorised development to be carried out in the areas identified as i, ii, vi and ix on the highway works components plans the general arrangement of which is shown on the relevant regulation 6(2) plan and any works ancillary to that part of the authorised development;

“nominated persons” means the undertaker’s representatives or the contractors’ representatives on site during the carrying out of the highway works;

“phase” means that part of the highway works which is to be carried out in separate phases in the areas identified as i, ii, vi and ix on the highway works components plan except that components ii and ix is a single phase, or such other phasing arrangements as are agreed with Highways England;

“programme of works” means a document setting out the sequence and timetabling of works for the phase in question;

“relevant regulation 6(2) plans” means Documents 2.4A, 2.4B, 2.4E, 2.4H, 2.4J, 2.4M and 2.4N certified under article 39 (certification of plans etc.);

“Road Safety Audit Standard” means the Design Manual for Roads and Bridges Standard HD 19/15 or any replacement or modification of that part of the Manual; and

“utilities” means any pipes, wires, cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act.

Prior approvals and security

3

(1) No work is to commence on any phase of the highway works until the detailed design information and a programme of works in respect of that phase has been submitted to and approved by Highways England and, in the case of phase ix identified on the highway works component plans, also submitted to and approved by Leicestershire County Council, such approvals not to be unreasonably withheld or delayed.

(2) No works are to commence on any phase of the highway works other than by a contractor employed by the undertaker but first approved by Highways England, such approval in respect of each phase not to be unreasonably withheld or delayed.

(3) No work is to commence on any phase of the highway works until the undertaker has provided security for the carrying out of those works as provided for in paragraph 8 or some other form of security acceptable to Highways England.

(4) No work is to commence on any phase of the highway works until Highways England have considered whether a temporary traffic regulation order is necessary for that phase and if necessary Highways England have approved and made the necessary temporary traffic regulation order.

(5) No work is to commence on any phase of the highway works until a Stage 2 Road Safety Audit has been carried out in respect of that phase in accordance with the Road Safety Audit Standard and if necessary all issues raised incorporated into an amended design approved by Highways England or any relevant exceptions approved by Highways England.

(6) No work is to commence on any phase of the highway works until traffic management provisions have been agreed with Highways England, such agreement not to be unreasonably withheld or delayed.

(7) No work is to commence on any phase of the highway works until stakeholder liaison has taken place in accordance with a scheme for such liaison agreed between the undertaker and Highways England.

Carrying out of works

4

(1) If the undertaker commences the authorised development the undertaker must design construct, test and commission the highway works.

(2) The undertaker must prior to commencement of each phase of the highway works give Highways England 28 days’ notice in writing of the proposed date on which that phase will start.

(3) The undertaker must comply with Highways England’s usual road space booking procedures prior to and during the carrying out of each phase of the highway works and no highway works for which a road space booking is required can commence without a road space booking having first been secured.

(4) Each phase of the highways works must be carried out to the satisfaction of Highways England in accordance with—

(a) the relevant detailed design information;

(b) a programme of works approved under paragraph 3(1) or as subsequently varied by agreement between the undertaker and Highways England;

(c) the Design Manual for Roads and Bridges, the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works) and any amendment to or replacement of those documents for the time being in force except to the extent that they are a departure from such standards and have been approved by Highways England and such approvals or requirements of Highways England in paragraph 3 that need to be in place prior to the works being undertaken; and

(d) all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same and in particular the undertaker must ensure that all client duties (as defined in the said Regulations) are satisfied and must indemnify Highways England against all claims, damages, costs, losses, liabilities and actions arising out of a failure to do so.

(5) The undertaker must permit and require the contractor to permit at all reasonable times persons authorised by Highways England (whose identity must have been previously notified to the undertaker) to gain access to the highway works for the purposes of inspection and supervision and the undertaker must provide to Highways England contact details of the nominated persons with whom Highways England should liaise during the carrying out of the highway works.

(6) At any time during the carrying out of the highway works the nominated persons must act upon any request made by Highways England in relation to the carrying out of the highway works as soon as practicable following such request being made to the nominated persons except to the extent that the contents of such request are inconsistent with or fall outside the contractor’s obligations under its contract with the undertaker or the undertakers obligations in this Order.

(7) If at any time the undertaker does not comply with any of the terms of this Schedule in respect of any phase of the highway works having been given notice of an alleged breach and an adequate opportunity to remedy it by Highways England then Highways England is on giving to the undertaker 14 days’ notice in writing to that effect entitled to carry out and complete that phase of the highway works and any maintenance works which the undertaker would have been responsible for on the undertaker’s behalf and the undertaker must within 28 days of receipt of the itemised costs pay to Highways England the costs so incurred by Highways England.

(8) Nothing in this Schedule prevents Highways England from carrying out any work or taking such action as deemed appropriate straight away without prior notice to the undertaker in the event of an emergency or danger to the public, the cost to Highways England of such work or action being chargeable to and recoverable from the undertaker if the need for such action arises from the carrying out of the highway works.

(9) For the avoidance of doubt it is confirmed that the undertaker in carrying out each phase of the highway works must at its own expense divert or protect all utilities as may be necessary to enable the highway works to be properly carried out and all agreed alterations to existing services must be carried out to the reasonable satisfaction of Highways England.

Payments

5

(1) The undertaker must fund the whole of the highway works costs and all costs incidental to the highway works and must also pay to Highways England in respect of each phase of the highway works a sum equal to the whole of any costs and expenses which Highways England incur, (the estimated costs), including costs and expenses for using external staff and resources as well as costs and expenses of using in house staff and resources in relation to the highway works and arising out of it and its implementation including without limitation on the scope—

(a) the checking and approval of all design work carried out by or on behalf of the undertaker for that phase;

(b) costs in relation to agreeing the programme of works for that phase;

(d) all legal and administrative costs in relation to paragraphs (a) and (b); and

(e) all costs in relation to the transfer of any land required for the highway works.

(2) The sums referred to in subparagraph (1) do not include any sums payable from the undertaker to the contractor but do include any value added tax which is payable by Highways England in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs.

(3) The undertaker must pay to Highways England upon demand the total costs properly and reasonably incurred by Highways England in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the highways works and whether or not such procedure or order is or are experimental, temporary or permanent provided that this paragraph does not apply to the making of any orders which duplicate orders contained in this Order.

(4) The undertaker and Highways England must agree a schedule of the estimated costs to be incurred under sub-paragraph (1) in respect of each phase prior to the commencement of that phase.

(5) The undertaker must make the payments referred to in sub-paragraph (1) as follows—

(a) the undertaker must pay a sum equal to the agreed estimated costs in respect of a phase prior to commencing that phase; and

(b) if at any time or times after the payment in respect of a phase referred to in paragraph (5)(a) has become payable the Highways England estimates that the costs in respect of that phase referred to in sub-paragraph (1) will exceed the estimated costs for that phase it may give notice to the undertaker of the amount by which it then estimates those costs will exceed the estimated costs (“the excess”) and the undertaker must pay to Highways England within 28 days of the date of that notice a sum equal to the excess.

(6) If Highways England have received the as built information within 91 days of the issue of the final certificate for each phase of the highway works under paragraph 7, Highways England must give the undertaker a final account of the costs referred to in sub-paragraph (1) and within 28 days from the expiry of the 91 day period—

(i) if the account shows a further sum as due to Highways England the undertaker must pay to Highways England the sum shown due to it in that final account; and

(ii) if the account shows that the payment or payments previously made have exceeded those costs Highways England must refund the difference to the undertaker.

(7) If any payment due under any of the provisions of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the rate payable in respect of compensation under section 32 (rate of interest after entry on land) of the Land Compensation Act 1961[^f00052] for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate and defects period

6

(1) As soon as each phase of the highway works has been completed and a Stage 3 Road Safety Audit for that phase has been carried out in accordance with the Road Safety Audit Standard and any resulting recommendations complied with Highways England must issue a provisional certificate of completion in respect of that phase such certificate not to be unreasonably withheld or delayed.

(2) Highways England must also issue a defects list to the undertaker together with timescales within which defects are to be resolved. The undertaker must at its own expense remedy any defects in that phase of the highway works as reasonably required to be remedied by Highways England and identified by Highways England during a period of 12 months from the date of the provisional certificate in respect of that phase.

(3) The undertaker must submit Stage 4(a) and Stage 4(b) Road Safety Audits as required by and in line with the timescales stipulated in the Road Safety Audit Standard. The undertaker must comply with the findings of the Stage 4(a) and 4(b) Road Safety Audit reports inclusive of conducting any works that are required.

(4) Highways England must approve the audit brief and curriculum vitaes for all Road Safety Audits and exceptions to items raised, if appropriate, in accordance with the Road Safety Standard.

Final certificate

7

(1) The undertaker must apply to Highways England for the issue of the final certificate in respect of each phase at the expiration of the 12-month period in respect of that phase referred to in paragraph 6(2) or on a date on which any defects or damage arising from defects during that period has been made good to the reasonable satisfaction of Highways England (not to be unreasonably withheld or delayed) and when making such application the undertaker must—

(a) submit to Highways England the health and safety file and as built information of the relevant phase; and

(b) provide a plan clearly identifying the extent of any land which is to be highway maintainable at public expense by Highways England.

(2) If the provisions of sub-paragraph (1) are satisfied Highways England must as soon as reasonably practicable issue a final certificate for the phase concerned.

Surety

8

(1) Subject to paragraph 3(3) the undertaker must provide security for the carrying out of the highway works as follows—

(a) prior to the commencement of each phase the highway works within that phase must be secured by a bond first approved by Highways England, drafted substantially as detailed in Form 1 contained in paragraph 9 or in such other form that may be agreed between the undertaker and Highways England to indemnify Highways England against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of that phase under the provisions of this Schedule provided that the maximum liability of the bond must not exceed the bond sum relating to that Phase; and

(b) prior to the commencement of the highway works the undertaker must provide the cash surety which may be utilised by Highways England in the event of the undertaker failing to meet its obligations to make payments under paragraph 5 or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker (which must for the avoidance of doubt be a single cash surety for the entirety of the highway works).

(2) Each bond sum and the cash surety (the latter in respect of the final phase only) must be progressively reduced as follows—

(a) on receipt of written confirmation (including receipt of receipted invoices evidencing payments made by the undertaker to the contractors) from the undertaker of the payments made from time to time to the contractor, Highways England must in writing authorise the reduction of the bond sum and (in respect of the final phase only) the cash surety by such proportion of the surety sum and cash deposit as amounts to 80% of those payments;

(b) within 20 working days of completion of each phase of the highway works (as evidenced by the issuing of the provisional certificate in respect of that phase under paragraph 6(1)) Highways England must in writing release the bond provider from its obligations by 80% of the bond sum in respect of that phase except in so far as any claim or claims have been made against the bond or liability on its part has arisen prior to that date and (in respect of the final Phase only) return 80% of the cash surety to the undertaker; and

(c) within 20 working days of the issue of the final certificate for each phase of the highway works referred to in paragraph 7 Highways England must in writing release the bond provider from all its obligations in respect of that phase subject to Highways England having received the documents referred to in paragraph 7(1)(a) and (b) and except in so far as any claim or claims have been made against the bond or liability on its part has arisen prior to that date and (in respect of the final phase only) must release the remainder of the cash surety to the undertaker.

9

Form 1 as referred to in paragraph 8(1)(a) is—

Commuted sums

10

(1) Prior to the commencement of each phase of the highway works the undertaker is to be provided with an estimate of the amount of the commuted sum in respect of the maintenance costs of that phase of the highway works to be incurred following the issue of the final certificate, if any and following completion of that phase of the highway works the undertaker must pay to Highways England the commuted sum within 28 days of the date of the final certificate. The commuted sum must be calculated in line with FS Guidance S278 Commuted Lump Sum Calculation Method dated 18th January 2010, except that—

(a) the agreed commuted sum in respect of the highway bridge structures within Phase ii identified on the highway works component plans is £931,197.57; and

(b) the agreed commuted sum in respect of the highway bridge structure within Phase viii identified on the highway works component plans is £1,046,151.18.

(2) If the form of any structures referred to in sub-paragraph (1)(a) and (b) changes significantly from that contained in the approval in principle already submitted to and approved by Highways England then the calculation of the figure in sub-paragraph (1)(a) or (b) as the case may be must, if requested by either the undertaker or Highways England, be recalculated in accordance with the FS Guidance S278 Commuted Lump Sum Calculation Method dated 18th January 2010.

Insurance

11

The undertaker must, prior to commencement of the highway works, effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the Highway Works or any part of them by the undertaker.

Indemnification

12

The undertaker must, in relation to the carrying out of the highway works, take such precautions for the protection of public and private interests as would be incumbent upon it if it were the highway authority and must indemnify Highways England from and against all costs expenses, damages, losses and liabilities arising from or in connection with or ancillary to any claim, demand, action or proceedings resulting from the design, carrying out or maintenance of the highway works, including but without limitation on the scope of this paragraph any claim against Highways England under the Land Compensation Act 1973[^f00053] or by virtue of the application of the provisions of the Noise Insulation Regulations 1975[^f00054], including any liability falling upon Highways England by virtue of its exercising its discretionary powers under the said Regulations.

Warranties

13

The undertaker must procure warranties from the contractor and designer of each phase of the highway works to the effect that all reasonable skill care and due diligence must be exercised in designing and constructing that phase of the highway works including the selection of materials, goods, equipment and plant; such warranties to be provided to Highways England before that phase of the highway works commences.

SCHEDULE 20 — FOR THE PROTECTION OF LEICESTERSHIRE COUNTY COUNCIL AS HIGHWAY AUTHORITY

Application

1

The provisions of this Schedule have effect.

Interpretation

2

In this Schedule—

“as built information” means the following information—drawings showing the highway works as constructed;list of supplies and materials, test results and CCTV drainage;product data sheets, technical specifications for all materials to be used;as built information for any utilities discovered or moved during the works and in relation to the over bridge;method statements for works to be carried out;road lighting, signs and traffic signals;organisation and methods manuals for all products used;as built programme;drawings referred to in paragraphs (a), (k) and (l) in Auto CAD;test results and records;landscape drawings;highway drainage drawings; andplans identifying land which is highway maintainable at public expense;

“detailed design information” means the following drawings, specifications and other information which must be in accordance with the general arrangements shown on the relevant regulation 6(2) plans—site clearance details;boundary environmental and mitigation fencing;road restraint systems (vehicle and pedestrian);drainage and ducting;earthworks;road pavements;kerbs, footways and paved areas;traffic signs, signals and road markings;road lighting (including columns and brackets);CCTV masts and cantilever masts;electrical work for road lighting and traffic signs;motorway communications;highway structures;landscaping; andutility diversions;

“director” means a director of Environment and Transportation of the highway authority or any successor post responsible for the highway authority function of Leicestershire County Council;

“final certificate” means the final certificate issued by the director for each phase of the highway works in accordance with paragraph 5;

“highway works” means that part of the authorised development to be carried out in the areas identified as iii, iv, v, vii, viii on the highway works component plans the general arrangement of which is shown on the relevant regulation 6(2) plans;

“highway authority” means Leicestershire County Council;

“maintenance period”, in relation to each phase of the highway works, means 12 months from the date of issue of the provisional certificate for that phase;

“phase” means that part of the highway works which is to be carried out as separate phases in the areas identified as iii, iv, v, vii and viii on the highways works components plans except that components vii and viii is a single phase or such other phasing arrangement as must be agreed with the highway authority;

“provisional certificate” means the provisional certificate of completion issued by the director for each phase of the highway works in accordance with paragraph 4;

“relevant regulation 6(2) plans” means Documents 2.4A, 2.4B, 2.4C, 2.4E, 2.4F, 2.4H, 2.4K, 2.4M and 2.4N;

“specification” means—in relation to design—the 6C’s Design Guide; andDesign Manual for Roads and Bridges;in relation to specification—Leicestershire County Council’s Specification for highway works for new developments; andLeicestershire County Council’s Standard drawings;in relation to street lighting—design in accordance with BS5489; andLeicestershire County Council’s Street Lighting Specification; andin relation to traffic signs—the Traffic Signs Regulations and General Directions 2002 and any modifications of them;the Traffic Signs Manual (DOT); andLeicestershire County Council’s Traffic Signs and Road Markings Specification;

“supervising officer” means the officer of the highway authority appointed by it to supervise the highway works on its behalf; and

“works fees” means the actual costs incurred by the highway authority (utilising its standard charge out rates) in relation to—considering and approving the detailed design information;the work carried out by the Supervising Officer including travel expenses to and from the highway works and all other expenses properly incurred by the Supervising Officer in connection with his duties; andadministration in relation to paragraphs (a) and (b) above.

Highway works

3

The undertaker must carry out and complete the highway works in accordance with—

(a) the detailed design information approved under paragraph 14; and

(b) the programme of works approved under paragraph 22 or as subsequently varied by agreement between the undertaker and the highway authority.

Provisional certificate and maintenance period

4

When and so soon as each phase of the highway works has been completed including such road safety audits as required in accordance with paragraph 27 to the reasonable satisfaction of the director, the director must issue a provisional certificate, such certificate not to be unreasonably withheld or delayed, and the undertaker at its own expense must maintain that phase of the highway works in a good state of repair and to the satisfaction of the director for the duration of the maintenance period and must carry out such routine maintenance as may be necessary or required by the director to facilitate use by the public; and for the avoidance of doubt the undertaker must undertake all other work and maintenance in respect of that work including but not limited to any damage until issue of the final certificate in respect of that phase under paragraph 5 and that phase of the highway works becomes highways maintainable at the public expense.

Final certificate

5

(1) The undertaker must apply to the director for issue of the final certificate in respect of each phase at the expiration of the maintenance period in respect of that phase or on a date (whichever is the later) on which any damage arising during the maintenance period is made good. to the reasonable satisfaction of the director or completion of all or any works identified by any road safety audit required in accordance with paragraph 27.

(2) Upon receipt of the as built information in respect of a phase and approval of the same, the director must issue a final certificate in respect of that phase and as from the date of such final certificate the highway works become highways maintainable at the public expense.

(3) If the undertaker does not apply for and receive a final certificate for a phase within two years of the issue of the provisional certificate in respect of that phase the undertaker must pay to the highway authority a further administration charge of five hundred pounds (£500.00).

Payment for supplemental maintenance

6

(1) Where the period from commencement of a phase of the highway works to the issue of the final certificate in respect of that phase exceeds a period of two years the undertaker must pay to the highway authority the cost of carrying out a bulk clean and lamp change for all the street lighting provided as part of that phase of the highway works.

(2) Prior to the issue of the final certificate of completion in respect of a phase the undertaker must pay to the highway authority the cost of a bulk clean and lamp change of all illuminated signs and bollards erected as part of that phase of the highway works.

Indemnity

7

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