The York Potash Harbour Facilities Order 2016

• “Shared Area 3” means the land comprising plots 332, 343, 345 and 347 on the Land Plans;

• “Shared Area 4” means the land comprising plots 384, 397, 395, 401 and 405 on the Land Plans;

• “Shared Area 5” means the land comprising plots 417, 418, 427, 432, 436 and 439 on the Land Plans;

• “Shared Area 6” means the land comprising plots 540a and 540d on the Land Plans;

• “Shared Area Plan” means the plan which is certified as the Net Zero Teesside Anglo American Shared Area Plan by the Secretary of State under article 45 (certification of plans etc.) of the NZT Order; and

• “Specified Works” means so much of the authorised development as is within the Shared Area.

Consent to works in the shared area

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• (1) Where the consent or agreement of the NZT Undertaker is required under the provisions of this Schedule the undertaker must give at least 21 days written notice to the NZT Undertaker of the request for such consent or agreement and in such notice must specify the works or matter for which consent or agreement is to be requested and the Plans that will be provided with the request which must identify—

• (a) the land that will or may be affected;

• (b) which Works Nos. from the Order any powers sought to be used or works to be carried out relate to;

• (c) the identity of the contractors carrying out the work;

• (d) the proposed programme for the power to be used or works to be carried out; and

• (e) the named point of contact for the undertaker for discussions in relation to the information supplied and the consenting process.

• (2) The NZT Undertaker must notify the undertaker within 14 days of the receipt of the written notice under sub-paragraph (1) of—

• (a) any information it reasonably requires to be provided in addition to that proposed to be supplied by the undertaker under sub-paragraph (1);

• (b) any particular circumstances with regard to the construction or operation of the NZT Project it requires to be taken into account;

• (c) the named point of contact for the NZT Undertaker for discussions in relation to the information supplied and the consenting process; and

• (d) the specific person who will be responsible for confirming or refusing the consent or agreement.

• (3) Any request for consent under paragraphs 5(1), 6(1) and 6(2) must be accompanied by the information referred to in sub-paragraph (1) as amended or expanded in response to sub-paragraph (2).

• (4) Subject to sub-paragraph (5), where conditions are included in any consent granted by the NZT Undertaker pursuant to this Part of this Schedule, the undertaker must comply with the conditions if it chooses to implement or rely on the consent, unless the conditions are waived or varied in writing by the NZT Undertaker.

• (5) Wherever in this Schedule provision is made with respect to the agreement, approval or consent of the NZT Undertaker, that approval or consent must be in writing and subject to such reasonable terms and conditions as the NZT Undertaker may require including conditions requiring protective works to be carried out, but must not be unreasonably refused or delayed and for the purposes of these provisions it will be deemed to be reasonable for any consent to be refused if it would—

• (a) compromise the safety and operational viability of the NZT Project;

• (b) make regulatory compliance more difficult or expensive; and/or

• (c) prevent the ability of the NZT Undertaker to have uninterrupted access to the NZT Project,

provided that before the NZT Undertaker can validly refuse consent for any of the reasons set out in sub-paragraphs (a) and (b) it must first give the undertaker seven days’ notice of such intention and consider any representations made in respect of such refusal by the undertaker to the NZT Undertaker within that seven day period.

• (6) The seven day period referred to in the proviso to sub-paragraph (5) must be added to the period of time within which any request for agreement, approval or consent is required to be responded to pursuant to the provisions of this Schedule.

• (7) In the event that—

• (a) the undertaker considers that the NZT Undertaker has unreasonably withheld its authorisation or agreement under paragraphs 5(1), 6(1) and/or 6(2); or

• (b) the undertaker considers that the NZT Undertaker has given its authorisation under paragraphs 5(1), 6(1) and/or 6(2) subject to unreasonable conditions,

the undertaker may refer the matter to an expert for determination under paragraph 11.

• (8) Any notice under sub-paragraph (1) and any request for approval or consent under the provisions of this Schedule must be sent to the NZT Undertaker by recorded delivery and addressed to Andy Lane, VP Hydrogen – UK, bp, Chertsey Road, Sunbury on Thames, Middlesex TW16 7LN, and copied to Clare Haley, Senior Counsel, bp, Chertsey Road, Sunbury on Thames, Middlesex TW16 7LN (or the equivalent named individual holding those positions at the time of the notice) and by email to andy.lane@uk.bp.com and clare.haley@uk.bp.com.

• (9) In the event that the NZT Undertaker does not respond in writing to a request for approval or consent or agreement within 28 days of its receipt of the postal request then the undertaker may serve upon the NZT Undertaker written notice requiring the NZT Undertaker to give their decision within a further 28 days beginning with the date upon which the NZT Undertaker received written notice from the undertaker and, subject to compliance with sub-paragraph (10), if by the expiry of the further 28 day period the NZT Undertaker has failed to notify the undertaker of its decision the NZT Undertaker is deemed to have given its consent, approval or agreement without any terms or conditions.

• (10) Any further notice given by the undertaker under sub-paragraph (9) must include a written statement that the provisions of sub-paragraph (9) apply to the relevant approval or consent or agreement.

Co-operation

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Insofar as the NZT Specified Works are or may be undertaken concurrently with the Specified Works within the Shared Area, the undertaker must—

• (a) co-operate with the NZT Undertaker with a view to ensuring—

• (i) the co-ordination of programming of all activities and the carrying out of works within the Shared Area; and

• (ii) that access for the purposes of the construction and operation of the NZT Project is maintained for the NZT Undertaker and its contractors, employees, contractors and sub-contractors; and

• (b) use reasonable endeavours to avoid any conflict arising from the carrying out of the Respective Projects.

Regulation of works within the shared area

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• (1) The undertaker must not carry out the Specified Works without the prior written consent of the NZT Undertaker obtained pursuant to, and in accordance with, the provisions of paragraph 3.

• (2) Where under paragraph 3(5) the NZT Undertaker requires any 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 the reasonable satisfaction of the NZT Undertaker.

• (3) Nothing in paragraph 3 or this paragraph 5 precludes the undertaker from submitting at any time or from time to time, but in no case less than 48 days before commencing the execution of any of the Specified Works, new Plans in respect of that Specified Work in substitution of the Plans previously submitted, and the provisions of this paragraph and paragraph 3 shall apply to the new Plans.

• (4) Where there has been a reference to an expert in accordance with paragraph 11 and the expert gives approval for the works concerned, the Specified Works must be carried out in accordance with that approval and any conditions applied by the decision of the expert under paragraph 11.

• (5) The undertaker must give to the NZT Undertaker not less than 28 days’ written notice of its intention to commence the construction of any of the Specified Works and, not more than 14 days after completion of their construction, must give the NZT Undertaker written notice of the completion.

• (6) The undertaker is not required to comply with sub-paragraphs (1) to (5) above in a case of emergency, (being actions required directly to prevent possible death or injury) but in that case it must give to the NZT Undertaker notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and thereafter must comply with paragraphs 3 and 5 in so far as is reasonably practicable in the circumstances.

• (7) The undertaker must at all reasonable times during construction of the Specified Works allow the NZT Undertaker and its officers, employees, servants, contractors, and agents access to the Specified Works and all reasonable facilities for inspection of the Specified Works.

• (8) After the purpose of any temporary works has been accomplished, the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from the NZT Undertaker requiring the undertaker to do so, remove the temporary works in, on, under, over, or within the Shared Area.

• (9) If the undertaker fails to remove the temporary works within a reasonable period of receipt of a notice pursuant to sub-paragraph (8), the NZT Undertaker may remove the temporary works and may recover the reasonable costs of doing so from the undertaker.

• (10) The undertaker must not exercise the powers conferred by the Order or undertake the Specified Works to prevent or interfere with the access by the NZT Undertaker to the NZT Specified Works unless first agreed in writing by the NZT Undertaker.

• (11) If in consequence of the exercise of the powers conferred by the Order or the carrying out of the Specified Works the access to any of the NZT Specified Works is materially obstructed, the undertaker must provide such alternative means of access to the NZT Specified Works as will enable the NZT Undertaker to construct, maintain or operate the NZT Project no less effectively than was possible before the obstruction.

• (12) To ensure its compliance with this paragraph 5, the undertaker must before carrying out any of the Specified Works request up-to-date written confirmation from the NZT Undertaker of the location of any part of its then existing or proposed NZT Specified Works.

Regulation of powers over the shared area

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• (1) The undertaker must not exercise the powers granted under the Order so as to hinder or prevent the construction, operation or maintenance of the NZT Specified Works without the prior written consent of the NZT Undertaker.

• (2) The undertaker must not exercise the powers under any of the articles of the Order specified in sub-paragraph (3) below, over or in respect of the Shared Area otherwise than with the prior written consent of the NZT Undertaker.

• (3) The articles referred to in sub-paragraph (2) above are—

• (a) article 10 (street works);

• (b) article 11 (temporary stopping up of streets);

• (c) article 12 (access to works);

• (d) article 14 (discharge of water);

• (e) article 15 (protective works to buildings);

• (f) article 16 (authority to survey and investigate land);

• (g) article 24 (compulsory and other acquisition of rights);

• (h) article 25 (power to override easements and other rights); and

• (i) article 30 (temporary use of land).

• (4) In the event that the NZT Undertaker withholds its consent pursuant to sub-paragraph (2) it must notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.

• (5) Regardless of any provision in the Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker must not appropriate or acquire or take permanent or temporary possession of any land interest held by the NZT Undertaker in any plots shown on the land plans, or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right in such land.

Constructability Principles

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• (1) The undertaker must (unless otherwise agreed, in an emergency relating to potential death or serious injury, or where it would render the Anglo American Apparatus, the Specified Works, the NZT Specified Works or NZT Apparatus unsafe, or put the undertaker in breach of its statutory duties or in breach of an obligation or requirement of the Order)—

• (a) carry out the Specified Works in such a way that will not prevent or interfere with the continued construction of the NZT Specified Works, or the maintenance or operation of the NZT Apparatus unless the action leading to such prevention or interference has the prior written consent of the NZT Undertaker;

• (b) ensure that works carried out to, or placing of Anglo American Apparatus beneath, roads along which construction or maintenance access is required by the Net Zero Undertaker in respect of any NZT Apparatus will be of adequate specification to bear the loads;

• (c) prior to the carrying out of any of the Specified Works in any part of any Shared Area—

• (i) submit a construction programme and a construction traffic and access management plan in respect of that area to the NZT Undertaker for approval (noting that a single construction traffic and access management plan may be completed for one or more parts of each Shared Area or more than one Shared Area and may be subject to review if agreed between the Parties); and

• (ii) where applicable, confirm to the NZT Undertaker in writing the identity of the client for the purposes of the relevant Construction Design and Management Regulations applicable from time to time;

• (d) at all times construct the Specified Works in compliance with the relevant approved construction traffic and access management plan;

• (e) update the monthly construction programme approved under sub-paragraph (c)(i) monthly and supply a copy of the updated programme to the NZT Undertaker every month;

• (f) notify the NZT Undertaker of any incidences which occur as a result of, or in connection with, the Specified Works which are required to be reported under the relevant Reporting of Injuries Diseases and Dangerous Occurrences Regulations applicable from time to time within 24 hours of the duty to report arising;

• (g) provide comprehensive, as built, drawings of the Specified Works (including, for the avoidance of doubt, buried pipelines) within three months of the completion of each of the Specified Works;

• (h) other than in respect of land in which the undertaker has a freehold interest, following the completion of each of the Specified Works, unless otherwise agreed in writing by the NZT Undertaker, fully reinstate the affected area (with the exception only of the retention of permanent aspects of the Specified Works) and remove all waste/surplus materials;

• (i) in respect of land in which Anglo American has a freehold interest, following the completion of each of the Specified Works, the area affected must not be left in such a state as to adversely affect the construction, maintenance and operation of the NZT Specified Works; and

• (j) obtain the prior written consent of the NZT Undertaker for the use of any re-cycled aggregate material within the Shared Area.

• (2) Any spoil from the NZT Specified Works or the Specified Works (including contaminated material) must be dealt with in accordance with a spoil management plan to be agreed between the Parties in advance of the work by either Party generating such spoil beginning.

• (3) In considering a request for any consent under the provisions of this Part of this Schedule, the NZT Undertaker must not—

• (a) request an additional construction traffic and access management plan or a spoil management plan if such a plan has already been approved pursuant to sub-paragraph (1)(c) (as relevant in respect of a traffic and access management plan) or agreed pursuant to sub-paragraph (2) (in respect of a spoil management plan); and

• (b) refuse consent for reasons which conflict with the contents of documents approved by the NZT Undertaker pursuant to the provisions of this paragraph and paragraph 8.

Interface Design Process

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• (1) Prior to the seeking of any consent under this Schedule, the undertaker must, unless the NZT Undertaker has brought forward works in that part of the Shared Area before the undertaker, participate in a design and constructability review for that part of the Shared Area which shall, at a minimum (unless otherwise agreed), include the following matters—

• (a) a Front End Engineering Design (FEED) level indicative construction work-pack;

• (b) a hazard and operability study; and

• (c) a construction hazard study.

• (2) Unless otherwise agreed, the undertaker must submit the outcome of the design and constructability review referred to in sub-paragraph (1) to the NZT Undertaker for approval prior to the seeking of any consent under this Schedule.

• (3) The undertaker must at all times design and construct the Specified Works in compliance with the relevant approved design and constructability review pursuant to sub-paragraph (2).

• (4) The undertaker may undertake a single design and constructability review process for one or more parts of the Shared Area and any approved design and constructability review may be amended if agreed by the NZT Undertaker.

• (5) In considering any request for consent or approval under this Schedule, the NZT Undertaker must not refuse consent for details that are consistent with those approved under sub-paragraph (2) unless the NZT Undertaker reasonably believes that the relevant agreed design and constructability review is materially out of date or is inapplicable due to a change in either the NZT Project or the Woodsmith Project.

Miscellaneous provisions

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• (1) The NZT Undertaker and the undertaker must each act in good faith and use reasonable endeavours to co-operate with, and provide assistance to, each other as may be required to give effect to the provisions of this Schedule.

• (2) The undertaker must pay to the NZT Undertaker the reasonable expenses incurred by the NZT Undertaker in connection with the consenting processes under this Schedule, including the approval of plans, inspection of any Specified Works or the alteration or protection of the NZT Specified Works.

Indemnity

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• (1) Subject to sub-paragraphs (2) and (3), if by reason, or in consequence, of the construction, maintenance or operation of any Specified Works, or failure thereof, any damage is caused to any NZT Apparatus used in connection with the NZT Specified Works or damage is caused to any part of the NZT Specified Works or there is any interruption in any service provided, or the operations of the NZT Undertaker, or in the supply of any goods, by the NZT Undertaker, or the NZT Undertaker becomes liable to pay any amount to any third party as a consequence of the Specified Works, the undertaker must—

• (a) bear and pay the costs reasonably incurred by Anglo American in making good such damage or restoring the service, operations or supply; and

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

• (2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to—

• (a) any damage or interruption to the extent that it is attributable to the act, neglect or default of the NZT Undertaker, its officers, employees, servants, contractors or agents; or

• (b) any indirect or consequential loss or loss of profits by the NZT Undertaker.

• (3) The NZT Undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made, unless payment is required in connection with a statutory compensation scheme, without first consulting the undertaker and considering its representations.

• (4) The NZT Undertaker must use its reasonable endeavours to mitigate any claim or losses in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, the NZT Undertaker must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (1).

• (5) The undertaker shall not be liable under this paragraph in respect of any claim capable of being mitigated or minimised to the extent that the NZT Undertaker has not used its reasonable endeavours to mitigate and/or minimise that claim accordance with sub-paragraph (4).

• (6) The fact that any work or thing has been executed or done with the consent of the NZT Undertaker and in accordance with any conditions or restrictions prescribed by the NZT Undertaker or in accordance with any plans approved by the NZT Undertaker or to its satisfaction or in accordance with any directions or award of any expert appointed pursuant to paragraph 11 does not relieve the undertaker from any liability under this paragraph.

• (7) The total liability of Anglo American whether for breach of, or under any indemnity contained in, this Deed and whether under contract, tort, equity or otherwise shall be limited to the sum of ten million pounds (£10m).

Dispute resolution

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• (1) Article 40 of this Order does not apply to provisions of this Schedule.

• (2) Any difference in relation to the provisions in this Part of this Schedule must be referred to—

• (a) a meeting of the Managing Director of Net Zero Teesside Power Limited and/or the Managing Director of Net Zero North Sea Storage Limited, whichever is the relevant party and the Chief Executive Officer of Anglo American Crop Nutrients Limited to seek agreement on the matter in dispute within 21 days from the date of a dispute first being notified in writing by one Party to the other; and

• (b) in the absence of the difference being settled within that period, to be settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the NZT Undertaker and the undertaker or, in the absence of agreement identified by the President of the Institute of Civil Engineers, who must be sought to be appointed within 28 days of the notification of the dispute.

• (3) The fees of the expert are payable by the Parties in such proportions as the expert may determine or, in the absence of such determination, equally as between the Parties.

• (4) The expert must—

• (a) invite the Parties to make submissions to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

• (b) allow each Party an opportunity to comment on the submissions made by the other provided they are received within 21 days of the receipt of the submissions referred to in sub-paragraph (a) above;

• (c) issue a decision within 42 days of receipt of the submissions submitted pursuant to sub-paragraph (a) above; and

• (d) give reasons for the decision.

• (5) The expert must consider where relevant—

• (a) the development outcomes sought by the NZT Undertaker and the undertaker;

• (b) the ability of the NZT Undertaker and the undertaker to achieve the outcomes referred to in sub-paragraph (a) above in a timely and cost-effective manner;

• (c) any increased costs on any Party as a result of the matter in dispute;

• (d) whether under the NZT Order or the Order, the NZT Undertaker’s or the undertaker’s outcomes could be achieved in any alternative manner without the NZT Specified Works being materially compromised in terms of increased cost or increased length of programme; and

• (e) any other important and relevant considerations.

• (6) Any determination by the expert is final and binding which the Parties must comply with and is enforceable by the Parties by injunction except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either Party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.