The A14 Cambridge to Huntingdon Improvement Scheme Development Consent Order 2016

• “alternative apparatus” means alternative apparatus adequate to enable the statutory undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

• “apparatus” means— in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00052]), belonging to or maintained by that undertaker; in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00053] for the purposes of gas supply; in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply; and in the case of a sewerage undertaker— any drain or works vested in the undertaker under the Water Industry Act 1991[^f00054]; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act[^f00055], and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

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

• “statutory undertaker” means— any licence holder within the meaning of Part 1 of the Electricity Act 1989; a gas transporter within the meaning of Part 1 of the Gas Act 1986; a water undertaker within the meaning of the Water Industry Act 1991; and a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991, for the area of the authorised development, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.

On street apparatus

3

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

Apparatus in stopped up streets

4

• (1) Where any street is stopped up under article 13 (permanent stopping up of streets), any statutory undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the statutory undertaker legal easements reasonably satisfactory to the statutory undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the statutory undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

• (2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 14 (temporary stopping up of streets and restriction of use of streets), a statutory undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5

The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6

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

Removal of apparatus

7

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the statutory undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a statutory undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the statutory undertaker in question in accordance with sub-paragraphs (2) to (6).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the statutory undertaker in question 56 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the statutory undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

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

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the statutory undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

• (5) The statutory undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 43, and after the grant to the statutory undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

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

Facilities and rights for alternative apparatus

8

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a statutory undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the statutory undertaker in question or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

• (2) In settling those terms and conditions in respect of alternative apparatus the arbitrator must—

• (a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker or the traffic on the highway; 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 for which the alternative apparatus is to be substituted.

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

Retained apparatus

9

• (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the statutory undertaker in question a plan of the works to be executed.

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

• (3) Any requirements made by a statutory undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

• (4) If a statutory undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

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

• (6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to the statutory undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

Expenses and costs

10

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to a statutory undertaker all expenses reasonably incurred by that statutory 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), including any costs reasonably incurred in connection with the acquisition of rights under paragraph 7(3), and in watching and inspecting the execution of works under paragraph 9(2) and in making reasonable requirements under paragraph 9(3).

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 43 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

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

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

11

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of the authorised development or any such works referred to in paragraphs 5, 7(2), or 9(1), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a statutory undertaker, or there is any interruption in any service provided or of any access to any apparatus, or in the supply of any goods, by any statutory undertaker, the undertaker must—

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

• (b) make reasonable compensation to that statutory 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.

• (2) The fact that any act or thing may have been done by a statutory undertaker on behalf of the undertaker or in accordance with a plan approved by a statutory undertaker or in accordance with any requirement of a statutory 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 act, neglect or default of a statutory undertaker, its officers, servants, contractors or agents.

• (4) A statutory undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Cooperation

12

Where in consequence of the proposed construction of any of the authorised development, the undertaker or a statutory undertaker requires the removal of apparatus under paragraph 7(2) or a statutory undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use 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 statutory undertaker’s undertaking and each statutory undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

13

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

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

14

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

15

In this Part of this Schedule—

• “the 2003 Act” means the Communications Act 2003[^f00056];

• “conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system are to be construed in accordance with paragraph 1(3A)[^f00057] of that code;

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

• “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act[^f00058];

• “electronic communications code network” means— so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and an electronic communications network which the undertaker is providing or proposing to provide;

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

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

16

The exercise of the powers conferred by article 32 (statutory undertakers) is subject to paragraph 23 of Schedule 2 (undertaker’s works) to the Telecommunication Act 1984[^f00059].

17

• (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—

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

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

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

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

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

• (4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 43 (arbitration).

18

This Part of this Schedule does not apply to—

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

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

PART 3 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

19

The following provisions of this Part of this Schedule apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

20

In this Part of this Schedule—

• “access route” means an access route used by the Agency prior to the commencement of construction of a specified work for accessing a drainage work;

• “the Agency” means the Environment Agency;

• “construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are to be construed accordingly;

• “drainage work” means any watercourse forming part of a main river as defined in the Water Resources Act 1991 and includes any land which provides or is expected to provide flood storage capacity for any such watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence and any ancillary works constructed as a consequence of works carried out for drainage purposes;

• “fishery” means any waters containing fish and fish in such waters and the spawn, habitat or food of such fish;

• “maintenance” has the same meaning as in article 2(1) (interpretation);

• “plans” includes sections, drawings, specifications and method statements;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 9 metres of a drainage work or is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse or other surface waters or ground water; cause obstruction to the free passage of fish or damage to any fishery; or affect the conservation, distribution or use of water resources; and

• “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer.

21

• (1) Before beginning to construct any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably require.

• (2) Plans of a specified work submitted under sub-paragraph (1) relating to that part of Work No. 5 comprising the crossing of the river Great Ouse may not show a reduction of the width of the navigable channel to less than 12 metres or a reduction of the navigable headroom (measured from the normal water retention level of 10.05 metres AOD) to less than 3 metres unless the Agency has given its prior written approval in principle to such a reduction following a request made by the undertaker, such approval not to be unreasonably withheld or delayed.

• (3) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 30.

• (4) Any approval of the Agency required under this paragraph—

• (a) must not be unreasonably withheld or delayed;

• (b) is deemed to have been given if it is neither given nor refused within 8 weeks of the submission of the plans or receipt of further particulars if such particulars have been required by the Agency for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

• (c) may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work, fishery or water resources, for the prevention of flooding or pollution or in the discharge of its environmental duties including those under the Environment Act 1995[^f00060], the Natural Environment and Rural Communities Act 2006[^f00061] and the Water Environment (Water Framework Directive)(England and Wales) Regulations 2003[^f00062].

• (5) Any requirement made by the Agency under sub-paragraph (4)(c) may include—

• (a) a requirement for the undertaker to carry out monitoring during the implementation of any de-watering scheme approved by the Agency under this paragraph and to supply data arising from that monitoring to the Agency; and

• (b) a requirement for the undertaker not to prevent or materially restrict the Agency’s use of any access route during construction of the specified work or, where that is not possible owing to the nature of the work, a requirement for the undertaker to provide for use by the Agency during construction of the specified work a reasonably suitable alternative to the access route.

• (6) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (4)(b).

22

Without limitation on the scope of paragraph 21, but subject always to the provisions of that paragraph as to reasonableness, the requirements which the Agency may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

• (a) to safeguard any drainage work against damage; or

• (b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of any specified work.

23

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 22 must be constructed—

• (a) without unnecessary or unreasonable delay;

• (b) in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

• (c) to the reasonable satisfaction of the Agency,

and an officer of the Agency is entitled to watch and inspect the construction of such works.

• (2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

• (3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any specified work.

• (4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or (if undertaker so elects and the Agency in writing consents), such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

• (5) Subject to sub-paragraph (6) and paragraph 26 if, within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from the undertaker.

• (6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.

24

• (1) Subject to sub-paragraph (5), the undertaker must from the commencement of the construction of a specified work until the date falling 12 months from the date of completion of such specified work (“the maintenance period”), maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence; and upon the expiry of the maintenance period, the drainage work must be maintained by the highway authority of the highway to which the specified work relates.

• (2) If any such drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the person liable for maintenance to repair and restore the work, or any part of such work, or (if the person liable for maintenance so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

• (3) Subject to paragraph 26, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the person liable for maintenance of the specified work, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.

• (5) This paragraph does not apply to—

• (a) drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of this Order from doing so; and

• (b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.

25

Subject to paragraph 26, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the same and recover from the undertaker the expense reasonably incurred by it in so doing.

26

Except in an emergency nothing in paragraphs 23(5), 24(3) and 25 authorises the Agency to execute works on or affecting an adopted highway without the prior consent in writing of the undertaker or Cambridgeshire County Council, whichever is the highways authority for the adopted highway in question, such consent not to be unreasonably withheld or delayed.

27

The undertaker must indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

• (a) in the examination or approval of plans under this Part of this Schedule;

• (b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and

• (c) the carrying out of any surveys or tests which are reasonably required in connection with the specified works.

28

• (1) Without affecting the other provisions of this Part of this Schedule, the undertaker must indemnify the Agency from all claims, demands, proceedings, costs, damages, expenses or loss, which may be made or taken against, recovered from, or incurred by, the Agency by reason of—

• (a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

• (b) any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;

• (c) any flooding or increased flooding of any such lands; or

• (d) inadequate water quality in any water in any watercourse or other surface waters or in any groundwater,

which is caused by the construction of any of the specified works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work.

• (2) The Agency must give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

29

The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under the provisions of this Part of this Schedule.

30

Any dispute arising between the undertaker and the Agency under this Part of this Schedule is to be determined by arbitration.

PART 4 — FOR THE PROTECTION OF CAMBRIDGESHIRE COUNTY COUNCIL IN RESPECT OF ORDINARY WATERCOURSES

31

The following provisions of this Part of this Schedule apply for the protection of Cambridgeshire County Council unless otherwise agreed between the undertaker and Cambridgeshire County Council.

32

In this Part of this Schedule—

• “construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are to be construed accordingly;

• “drainage work” means an ordinary watercourse and includes any land which is expected to provide flood storage capacity for an ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse;

• “key watercourse” means any of the following ordinary watercourses— Ordinary watercourse to be regarded as a key watercourseOrdnance Survey coordinates of Ordinary watercourse to be regarded as a key watercourse OWC1So much of the OWC1 watercourse as runs between points 521823, 268245 and 521853, 268440OWC2So much of the OWC2 watercourse as runs between points 522034, 268223 and 522083, 268400OWC3So much of the OWC3 watercourse as runs between points 523173, 268195 and 523156, 268160So much of the OWC3 watercourse as runs between points 522376, 267895 and 522295, 267882So much of the OWC3 watercourse as runs between points 522563, 268269 and 522310, 267885HDC1So much of the HDC1 watercourse as runs between points 524839, 267732 and 524869, 267958HDC2So much of the HDC2 watercourse as runs between points 526421, 267747 and 526441, 267795So much of the HDC2 watercourse as runs between points 527286, 267834 and 528717, 267789So much of the HDC2 watercourse as runs between points 528754, 267800 and 528784, 267806So much of the HDC2 watercourse as runs between points 528817, 267812 and 529001, 267780So much of the HDC2 watercourse as runs between points 529136, 267788 and 529526, 267749HDC3So much of the HDC3 watercourse as runs between points 530233, 267221 and 530794, 267996OWC 4 / HDC4So much of the OWC 4 / HDC4 watercourse as runs between points 530867, 267917 and 5530878, 267894So much of the OWC 4 / HDC4 watercourse as runs between points 531485, 267508 and 531533, 267479SCDC Award Drain 233 / Oxholme DrainSo much of the SCDC Award Drain 233 / Oxholme Drain watercourse as runs between points 532513, 266823 and 533067, 267506SCDC Award Drain 231So much of the SCDC Award Drain 231 watercourse as runs between points 533091, 266751 and 533089, 266778So much of the SCDC Award Drain 231 watercourse as runs between points 533090, 266887 and 533466, 267276OWC 5The OWC 5 watercourse, running between points 533446, 267249 and 534468, 266572.OWC 6The OWC 6 watercourse, running between points 534453, 266520 and 535070, 266111SCDC Award Drain 190So much of the SCDC Award Drain 190 watercourse as runs between points 534801, 266355 and 534832, 266434OWC 7The OWC 7 watercourse, running between points 535318, 266022 and 534794, 266356SCDC Award Drain 193So much of the SCDC Award Drain 193 watercourse as runs between points 535750, 265690 and 535826, 265780OWC 8The OWC 8 watercourse, running between points 535807, 265549 and 537001, 264810Utton’s Drove Drain / SCDC Award Drain 194So much of the Utton’s Drove Drain / SCDC Award Drain 194 watercourse as runs between points 536441, 265028 and 536709, 265207SCDC Award Drain 308So much of the SCDC Award Drain 308 watercourse as runs between points 537364, 264658 and 537361, 264697OWC 9The OWC 9 watercourse, running between points 537097, 264733 and 537553, 264417OWC 10The OWC 10 watercourse, running between points 537000, 264899 and 538032, 264203SCDC Award Drain 387So much of the SCDC Award Drain 387 watercourse as runs between points 537612, 264523 and 537604, 264512Longstanton Brook / SCDC Award Drain 188So much of the Longstanton Brook / SCDC Award Drain 188 watercourse as runs between points 537955, 264159 and 538212, 264368SCDC Award Drain 271So much of the SCDC Award Drain 271 watercourse as runs between points 538431, 263920 and 538606, 264349Oakington BrookSo much of the Oakington Brook watercourse as runs between points 538713, 263666 and 538757, 263702OWC 11 / SCDC Award Drain 396So much of the OWC 11 / SCDC Award Drain 396 watercourse as runs between points 539258, 263192 and 539412, 263341OWC 12The OWC 12 watercourse, running between points 540680, 262232 and 539733, 263041SCDC Award Drain 170So much of the SCDC Award Drain 170 watercourse as runs between points 539734, 262983 and 539987, 263165SCDC Award Drain 357 (Beck Brook)So much of the SCDC Award Drain 357 (Beck Brook) watercourse as runs between points 540136, 261997 and 540515, 262167So much of the SCDC Award Drain 357 (Beck Brook) watercourse as runs between points 540611, 262186 and 540647, 262195SCDC Award Drain 244So much of the SCDC Award Drain 244 watercourse as runs between points 540667, 261502 and 540780, 261746So much of the SCDC Award Drain 244 watercourse as runs between points 540796, 261835 and 540798, 261846So much of the SCDC Award Drain 244 watercourse as runs between points 540821, 261989 and 540824, 262007OWC 13 / SCDC Award Drain 358So much of the OWC 13 / SCDC Award Drain 358 watercourse as runs between points 540767, 260740 and 541352, 261447SCDC Award Drain 245 / (Wash Pitt Brook)So much of the SCDC Award Drain 245 / (Wash Pitt Brook watercourse as runs between points 541730, 261186 and 541579, 261527 and in each case includes any land or area which is being used or is expected to be used to provide temporary or permanent flood storage capacity or relief for the watercourse and any bank, wall, embankment or other structure, or any appliance constructed or used for land drainage or flood defence in connection with the watercourse;

• “ordinary watercourse” has the same meaning as given in section 72 (interpretation) of the Land Drainage Act 1991[^f00063];

• “plans” includes sections, drawings, specifications and method statements; and

• “specified work” means any of the following works carried out in relation to any ordinary watercourse— erecting any mill dam, weir or other similar obstruction to the flow of the watercourse, or raising or otherwise altering any such obstruction; erecting a culvert in the watercourse; or altering a culvert in a manner that would be likely to affect the flow of the watercourse.

Key watercourses

33

• (1) Before beginning to construct any specified work in relation to a key watercourse, the undertaker must submit to Cambridgeshire County Council plans of the work, and such further particulars available to the undertaker as Cambridgeshire County Council may within 28 days of the submission of the plans reasonably require.

• (2) Any such specified work in relation to a key watercourse must not be constructed except in accordance with such plans as may be approved in writing by Cambridgeshire County Council, or determined under paragraph 41.

• (3) Any approval of Cambridgeshire County Council required under this paragraph—

• (a) must not be unreasonably withheld or delayed;

• (b) is to be deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval or where further particulars are submitted under sub-paragraph (1), within 2 months of the submission of those particulars; and

• (c) may be given subject to such reasonable requirements or conditions as Cambridgeshire County Council may make for the protection of any key watercourse or for the prevention of flooding.

34

The requirements or conditions which Cambridgeshire County Council may make under paragraph 33 include conditions requiring the undertaker at its own expense to construct such protective works (including any new works as well as alterations to existing works) as are reasonably necessary—

• (a) to safeguard any key watercourse against damage, or

• (b) to secure that the efficiency of any key watercourse for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of the specified work in relation to a key watercourse.

35

• (1) Any specified work in relation to a key watercourse, and all protective works required by Cambridgeshire County Council under paragraph 33 must be constructed to the reasonable satisfaction of Cambridgeshire County Council and an officer of Cambridgeshire County Council is entitled on giving such notice as may be reasonable in the circumstances, to inspect and watch the construction of such works.

• (2) The undertaker must give to Cambridgeshire County Council not less than 14 days’ notice of its intention to commence construction of any specified work in relation to a key watercourse and the undertaker must give to Cambridgeshire County Council notice of completion of a specified work in relation to a key watercourse not later than 7 days after the date on which it is brought into use.

• (3) If any part of the works comprising a structure in, over or under a key watercourse is constructed otherwise than in accordance with the requirements of this Part of this Schedule, Cambridgeshire County Council may by notice require the undertaker at its own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and Cambridgeshire County Council in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as Cambridgeshire County Council reasonably requires.

• (4) Subject to sub-paragraph (5) if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, Cambridgeshire County Council may execute the works specified in the notice and any expenditure reasonably incurred by it in so doing is to be recoverable from the undertaker.

• (5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, Cambridgeshire County Council must not, except in an emergency, exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

General

36

• (1) From the commencement of the construction of any specified work until the date falling 12 months from the date of completion of the specified work (“the maintenance period”), the undertaker must maintain in good repair and condition and free from obstruction the drainage work which is situated within the limits of deviation for that specified work and on land held by the undertaker for the purposes or in connection with the specified work, whether the drainage work is constructed under this Order or is already in existence. Upon the expiry of the maintenance period, the drainage work must be maintained by the highway authority for the highway to which the specified work relates.

• (2) If any such drainage work is not maintained to the reasonable satisfaction of Cambridgeshire County Council, it may by notice require the person liable for maintenance of the drainage work to maintain the drainage work, or any part of it, to such extent as Cambridgeshire County Council reasonably requires.

• (3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the person liable for maintenance, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, Cambridgeshire County Council may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the person liable for maintenance.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2) Cambridgeshire County Council must not except in a case of emergency exercise the powers of sub-paragraph (3) until the dispute has been finally determined.

37

If by reason of the construction of any specified work or of the failure of any such work the efficiency of any ordinary watercourse for flood defence purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of Cambridgeshire County Council and if the undertaker fails to do so, Cambridgeshire County Council may make good the same and recover from the undertaker the expense reasonably incurred by it in doing so.

38

• (1) The undertaker must indemnify Cambridgeshire County Council in respect of all costs, charges and expenses which it may reasonably incur or which it may sustain—

• (a) in the examination or approval of plans under this Part of this Schedule; and

• (b) in the inspection of the construction of a specified work in respect of a key watercourse or any protective works required by Cambridgeshire County Council under this Part of this Schedule.

• (2) The maximum amount payable to Cambridgeshire County Council under sub-paragraph (1)(a) or (b) is to be the same as would have been payable to Cambridgeshire County Council in accordance with the scale of charges for pre-application advice and land drainage consent applications published on Cambridgeshire County Council’s website from time to time.

39

• (1) Without prejudice to the other provisions of this Part of this Schedule, the undertaker must indemnify Cambridgeshire County Council from all claims, demands, proceedings or damages, which may be made or taken against, or recovered from Cambridgeshire County Council by reason of—

• (a) any damage to any ordinary watercourse so as to impair its efficiency for flood defence purposes,

• (b) any raising or lowering of the water table in land adjoining the works authorised by this Order or adjoining any sewers, drains and watercourses, or

• (c) any flooding or increased flooding of any such lands,

which is caused by, or results from, the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the work.

• (2) Cambridgeshire County Council must give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand is to be made without the consent of the undertaker which, if it withholds such consent, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

40

The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to have been approved by Cambridgeshire County Council, or to its satisfaction, does not (in the absence of negligence on the part of Cambridgeshire County Council, its officers, contractors or agents) relieve the undertaker from any liability under the provisions of this Part of this Schedule.

41

Any dispute arising between the undertaker and Cambridgeshire County Council under this Part of this Schedule is to be determined by arbitration.

PART 5 — FOR THE PROTECTION OF NATIONAL GRID

Application

42

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

Interpretation

43

In this Part of this Schedule—

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

• “apparatus” means mains, pipes or other apparatus belonging to or maintained by National Grid for the purposes of gas supply;

• “authorised development” has the same meaning as in article 2 (interpretation)and (unless otherwise specified) for the purposes of this Part of this Schedule includes the use and maintenance of the authorised development;

• “functions” includes powers and duties;

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

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

• “National Grid” means National Grid Gas PLC (Company No. 200600) whose registered office is at 1-3 Strand, London, WC2N 5EH;

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

• “specified work” means so much of any of the authorised development that will or may be situated within 15 metres (measured in any direction) of, or which may affect, any apparatus.

44

This Part of 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 streets subject to temporary stopping up or restriction

45

Regardless of the temporary prohibition or restriction under the powers of article 14 (temporary stopping up and restriction of use of streets), National Grid is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.

Acquisition of land

46

• (1) 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 (such agreement not to be unreasonably withheld).

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

Removal of apparatus

47

• (1) If, in the exercise of the agreement reached in accordance with paragraph 46 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 under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraphs (2) to (5).

• (2) If, for the purpose of executing any works comprised in the authorised development in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid 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 their satisfaction (taking into account paragraph 48(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 must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for 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 Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.

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

Facilities and rights for alternative apparatus

48

• (1) Where, in accordance with the provisions of this Part 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 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 in the matter must be referred to 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.

• (3) In respect of the appointment of an arbitrator under sub-paragraph (2), article 43 (arbitration) applies.

Retained apparatus: protection of National Grid as Gas Undertaker

49

• (1) Not less than 56 days before the commencement of any authorised development authorised by this Order that involves activities or works specified in National Grid’s “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22” that are within the proximities described in that document to any apparatus the removal of which has not been required by the undertaker under paragraph 47(2) or otherwise, the undertaker must submit to National Grid a plan.

• (2) In relation to specified work, or any works that (wherever situated) impose any load directly upon any apparatus, the plan to be submitted to National Grid under sub-paragraph (1) must show—

• (a) the exact position of the works;

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

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

• (d) the position of all apparatus;

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

• (f) intended maintenance regimes; and

• (g) details of any ground monitoring scheme (if required in accordance with National Grid’s “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22”).

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

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

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

• (b) must not be unreasonably withheld.

• (5) In relation to a work to which sub-paragraphs (1) and (2) 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.

• (6) Works executed under sub-paragraphs (1) or (2) must be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (2), as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (4), (5), (7) 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.

• (7) Where National Grid requires protective works to be carried out either by themselves 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 authorised development (or any relevant part of it) and National Grid must give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (2) (except in an emergency).

• (8) If National Grid in accordance with sub-paragraph (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 42 to 44 and 47 to 48 apply as if the removal of the apparatus had been required by the undertaker under paragraph 47(2).

• (9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 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.

• (10) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must—

• (a) comply with sub-paragraph (5), (6) and (7) in so far as is reasonably practicable in the circumstances; and

• (b) comply with sub-paragraph (11) at all times.

• (11) At all times when carrying out any works authorised under the Order 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 the Health and Safety Executive’s “HS(~G)47 Avoiding Danger from underground services”.

Expenses

50

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all charges, costs and expenses reasonably anticipated or incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of 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 purchase powers to acquire any necessary rights under paragraph 47(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;

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

• (d) the approval of plans;

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

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

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or in default of agreement settled by arbitration in accordance with article 43 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to 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 are to 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 must 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 must 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, must be reduced by the amount which represents that benefit.

Indemnity

51

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised 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 him) in the course of carrying out such works (including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works), any material 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 National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision does not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and professional manner or in a manner that does not materially accord with the approved plan or as otherwise agreed between the undertaker and National Grid.

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

• (5) National Grid must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If reasonably requested to do so by the undertaker, National Grid must provide an explanation of how the claim has been minimised. The undertaker is only liable under this paragraph for costs and expenses properly incurred by National Grid.

Co-operation

52

National Grid and the undertaker must each use their best endeavours to co-ordinate with the other party on the timing and method of execution of any works carried out under the Order or this Part of this Schedule 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 other party’s operations.

Access

53

If in consequence of the agreement reached in accordance with paragraph 46(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

54

Any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule, unless otherwise agreed in writing between the undertaker and National Grid, must be determined by arbitration in accordance with article 43 (arbitration).

PART 6 — FOR THE PROTECTION OF RAILWAY INTERESTS

55

The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 69, any other person on whom rights or obligations are conferred by that paragraph.

56

In this Part of 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 of the Railways Act 1993[^f00064];

• “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 of the Companies Act 2006[^f00065]) 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;

• “protective works” means any works specified by the engineer under paragraph 59(4);

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

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

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

57

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

• (2) In so far as any specified work or the acquisition or use of railway property or rights over 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 its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development under this Order.

58

• (1) The undertaker must not exercise the powers conferred by articles 13 (permanent stopping up of streets and private means of access), 14 (temporary stopping up and restriction of use of streets), 15 (access to works), 17 (discharge of water), 18 (protective works to buildings), 19 (authority to survey and investigate land), 20 (compulsory acquisition of land), 23 (compulsory acquisition of rights), 24 (public rights of way), 25 (private rights over land), 27 (acquisition of subsoil or airspace only), 28 (acquisition of part of certain properties), 29 (rights under or over streets), 30 (temporary use of land for carrying out the authorised development), 31 (temporary use of land for maintaining the authorised development), 32 (statutory undertakers), 36 (felling or lopping of trees and removal of hedgerows) and 37 (trees subject to tree preservation orders) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act or the 1981 Act as applied by this Order 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 or article 32 (statutory undertakers), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

• (4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over 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.

59

• (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 his 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 those railways (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to his reasonable satisfaction.

60

• (1) Any specified work and any protective works to be constructed by virtue of paragraph 59(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 59;

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

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

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