The Hornsea Two Offshore Wind Farm Order 2016

• (11) In case of damage to, or destruction or decay of, the authorised scheme or any part of it seaward of MHWS, the undertaker must as soon as reasonably practicable, and no later than 24 hours following the undertaker becoming aware of any such damage, destruction or decay, notify the MMO, Trinity House, MCA and the UK Hydrographic Office.

• (12) In the event that the Marine Noise Registry has gone live before the commencement of impact pile driving—

• (a) the undertaker must submit details of the expected location, start and end dates of impact pile driving to the Marine Noise Registry before the commencement of the impact pile driving; and

• (b) the undertaker must notify the MMO of the successful submission of the details required under sub-paragraph (a) within 7 days of the submission.

• (13) In the event that the Marine Noise Registry has gone live at the time of impact pile driving—

• (a) the undertaker must submit the exact locations and dates of impact pile driving to the Marine Noise Registry at 6-month intervals from the commencement of impact pile driving until the completion of impact pile driving. The final data must be submitted within 12 weeks of completion of impact pile driving; and

• (b) the undertaker must notify the MMO of the successful submission of the details required under sub-paragraph (a) within 7 days of the submission.

Chemicals, drilling and debris

6

• (1) All chemicals used in the construction of the authorised scheme must be selected from the list of notified chemicals approved for use by the offshore oil and gas industry under the Offshore Chemicals Regulations 2002, unless otherwise agreed in writing by the MMO.

• (2) The undertaker must ensure that any coatings or treatments are suitable for use in the marine environment and are used in accordance with guidelines approved by Health and Safety Executive or the Environment Agency Pollution Prevention Guidelines.

• (3) The storage, handling, transport and use of fuels, lubricants, chemicals and other substances must be undertaken so as to prevent releases into the marine environment including bunding of 110% of the total volume of all reservoirs and containers.

• (4) Where foundation drilling works are proposed, in the event that any system other than water based mud is proposed, the MMO’s written approval in relation to the proposed disposal of any arisings must be obtained before the drilling commences, which disposal may also require a marine licence.

• (5) The undertaker must ensure that, where practicable, any debris arising from the construction of the authorised scheme or temporary works placed seaward of MHWS is removed by a date no later than 28 days following the undertaker becoming aware of the debris after the completion of the authorised scheme (or by such later date as may be agreed in writing by the MMO). In the event that the debris cannot practicably be removed, the undertaker must notify the MMO, Trinity House and the MCA within 7 days of becoming aware that the debris cannot practicably be removed.

• (6) At least 10 days before the commencement of the licensed activities, the undertaker must submit to the MMO an audit sheet covering all aspects of the construction of the authorised scheme, and no works may commence until the audit sheet content has been agreed with the MMO. The audit sheet must include details of—

• (a) loading facilities;

• (b) vessels;

• (c) equipment;

• (d) shipment routes;

• (e) working schedules; and

• (f) all components and materials to be used in the construction of the authorised scheme.

• (7) The audit sheet must be maintained throughout the construction of the authorised scheme, and the MMO must be notified of any changes on a fortnightly basis.

• (8) In the event that the undertaker becomes aware that any of the materials on the audit sheet cannot be accounted for, it must notify the MMO within 24 hours where possible, and in any event within 5 days of becoming aware using the dropped object procedure form. On receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side-scan sonar) if reasonable to do so. Local fishermen must be invited to send a representative to be present during the survey. The MMO may require any new obstructions associated with the authorised scheme to be removed from the seabed at the undertaker’s expense if reasonable to do so.

• (9) All debris arising from the operation and maintenance of the authorised scheme must be reported to the MMO using the dropped object procedure form within 24 hours where possible, and in any event within 5 days of the undertaker becoming aware of the incident. On receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side-scan sonar) if reasonable to do so and any new obstructions associated with the authorised scheme to be removed from the seabed at the undertaker’s expense if reasonable to do so.

• (10) The undertaker must inform the MMO of the location and quantities of inert material and dredged material disposed of each month under this licence at each of disposal site reference HU211, disposal site reference HU209 and disposal site reference HU210, by submission of a disposal return for each disposal area by 31st January each year for disposals occurring during the months July to December inclusive of the preceding year, and by 31st July each year for disposals occurring during the months January to June inclusive of that year.

• (11) The undertaker must ensure that only—

• (a) inert material of natural origin and drilling mud, produced during construction drilling and seabed preparation for foundation works comprised in Work No. 2B;

• (b) dredged material produced during seabed preparation for foundation works comprised in Work No. 2B; and

• (c) inert material of natural origin and dredged material produced during cable laying preparation works comprised in Work Nos. 2B and 4B,

is disposed of at disposal site reference HU211.

• (12) The undertaker must ensure that only—

• (a) inert material of natural origin and drilling mud, produced during construction drilling and seabed preparation for foundation works comprised in Work No. 3B;

• (b) dredged material produced during seabed preparation for foundation works comprised in Work No. 3B; and

• (c) inert material of natural origin and dredged material produced during cable laying preparation works comprised in Work No. 4B,

is disposed of at disposal site reference HU209.

• (13) The undertaker must ensure that only inert material of natural origin and dredged material produced during cable laying preparation works comprised in Work No. 4B is disposed of at disposal site reference HU210.

• (14) The undertaker must ensure that no waste concrete slurry or wash water from concrete or cement works is discharged into the marine environment. Concrete, cement mixing and washing areas must be contained to prevent run-off entering the water through the freeing ports.

• (15) The undertaker must ensure that any rock material used in the construction of the authorised scheme is from a recognised source, free from contaminants and containing minimal fines.

• (16) The undertaker must notify the MMO within 48 hours of the completion of the final authorised disposal at disposal site reference HU211.

• (17) The undertaker must notify the MMO within 48 hours of the completion of the final authorised disposal at disposal site reference HU209.

• (18) The undertaker must notify the MMO within 48 hours of the completion of the final authorised disposal at disposal site reference HU210.

Force majeure

7

If, due to stress of weather or any other cause, the master of a vessel determines that it is necessary to deposit—

• (a) authorised deposits outside of the offshore Order limits or disposal site references HU209, HU210 or HU211; or

• (b) unauthorised deposits within or outside of the offshore Order limits or disposal site references HU209, HU210 or HU211,

because the safety of human life and/or of the vessel is threatened, full details of the circumstances of the deposit must be notified to the MMO within 48 hours.

Pre-construction plans and documentation

8

• (1) The licensed activities may not commence until a plan setting out proposed details of the authorised scheme and including the following (insofar as relevant to that activity or phase of activity) has been submitted to and approved in writing by the MMO following appropriate consultation with Trinity House and the MCA—

• (a) number, dimensions, specification, foundation types and depth for each offshore HVAC collector substation, offshore HVDC converter substation and offshore reactive compensation substation;

• (b) grid co-ordinates of the centre point of the proposed location for each offshore HVAC collector substation, offshore HVDC converter substation and offshore reactive compensation substation, subject to any micro-siting required due to anthropological constraints, environmental constraints or difficult ground conditions;

• (c) proposed layout of all cables, subject to any micro-siting required due to anthropological constraints, environmental constraints or difficult ground conditions; and

• (d) location and specification of all other aspects of the authorised scheme, subject to any micro-siting required due to anthropological constraints, environmental constraints or difficult ground conditions.

• (2) The licensed activities, or any phase of those activities, may not commence until a code of construction practice incorporating the following (insofar as relevant to that activity or phase of activity) has been submitted to and approved in writing by the MMO—

• (a) a construction and monitoring programme, to include details of—

• (i) the proposed construction start date;

• (ii) proposed timings for mobilisation of plant, delivery of materials and installation works; and

• (iii) proposed pre-construction surveys, baseline report format and content, construction monitoring, post-construction monitoring and related reporting in accordance with Conditions 13, 14 and 15. The pre-construction survey programme and all pre-construction survey methodologies must be submitted to the MMO for written approval by the MMO in consultation with the relevant statutory nature conservation body at least 4 months before the commencement of any survey works detailed within;

• (b) a construction method statement in accordance with the environmental statement, including details of—

• (i) foundation installation, including any seabed preparation, drilling and disposal of arisings methods;

• (ii) installation of offshore HVAC collector substations, offshore HVDC converter substations and offshore reactive compensation substations, including any seabed preparation and scour protection;

• (iii) circuit installation, including any seabed preparation and circuit protection;

• (iv) contractors;

• (v) vessels; and

• (vi) associated works;

• (c) a project environmental management and monitoring plan, to include details of—

• (i) a marine pollution contingency plan to address the risks, methods and procedures to deal with any spills and collision incidents during construction and operation of the authorised scheme in relation to all activities carried out seaward of MHWS. The plan must include a mechanism for reporting oil, fuel and chemical spills to the MMO Marine Pollution Response Team;

• (ii) a chemical risk analysis to include information regarding how and when chemicals are to be used, stored and transported in accordance with recognised best practice guidance;

• (iii) a disposal plan detailing the locations, methods and timings of dredging and disposal, as well as disposal site monitoring requirements;

• (iv) waste management and disposal arrangements;

• (v) locations of any archaeological exclusion zones agreed as part of the written scheme of archaeological investigation approved under sub-paragraph (g);

• (vi) any seasonal restrictions on construction works; and

• (vii) the appointment and responsibilities of a fisheries liaison officer, an environmental liaison officer and an intertidal ecological clerk of works;

• (d) a scour protection management and cable armouring plan providing details of the need, type, sources, quantity, location and installation methods for scour protection and cable armouring to be within the scope of the environmental impact assessment recorded in the environmental statement;

• (e) in the event that driven or part-driven pile foundations are proposed to be used, a marine mammal mitigation protocol, the intention of which is to prevent injury and/or significant disturbance to marine mammals, following current best practice as advised by the statutory nature conservation bodies, which may include, but is not limited to—

• (i) identification of a marine mammal mitigation zone (“MMMZ”);

• (ii) appointment of an appropriate number of suitably qualified marine mammal observers;

• (iii) methods for the detection of marine mammals within the MMMZ whether visually (by the marine mammal observers) or acoustically using passive acoustic monitoring equipment or other means of detection;

• (iv) a reporting methodology to enable efficient communication between the marine mammal observers and the person responsible for approving commencement of piling;

• (v) an appropriate soft start procedure whereby piling activities do not commence until an agreed time has elapsed and during which marine mammals have not been detected within the MMMZ;

• (vi) where appropriate, methods for the application of acoustic deterrent devices; and

• (vii) where appropriate, consideration of the use of noise reduction at source technologies;

• (f) a cable specification and installation plan, to include—

• (i) technical specification of offshore electrical circuits, including a desk-based assessment of attenuation of electro-magnetic field strengths, shielding and cable burial depth in accordance with industry good practice;

• (ii) a detailed cable laying plan, including geotechnical data, cable laying techniques and a cable burial risk assessment encompassing the identification of any cable protection that exceeds 5% of navigable depth referenced to Chart Datum and, in the event that any area of cable protection exceeding 5% of navigable depth is identified, details of any steps (to be determined following consultation with the MCA) to be taken to ensure existing and future safe navigation is not compromised;

• (iii) details of the steps to be taken, where the offshore electrical circuits across the intertidal area are buried using trenching or ploughing to ensure that the excavation and subsequent backfilling is carried out in such a way as to maintain the sediment profile so far as is reasonably practicable; and

• (iv) details of the steps to be taken, where the offshore electrical circuits across the intertidal area are installed using a trenchless technique;

• (g) a written scheme of archaeological investigation in relation to the offshore Order limits seaward of MHWS in accordance with industry good practice to include—

• (i) details of responsibilities of the undertaker, archaeological consultant and contractor;

• (ii) a methodology for any further site investigation including any specifications for geophysical, geotechnical and diver- or remotely-operated vehicle investigations;

• (iii) analysis and reporting of survey data to be submitted to the MMO within 4 months of survey completion;

• (iv) delivery of any mitigation including, where necessary, archaeological exclusion zones;

• (v) monitoring during and post-construction, including a conservation programme for finds;

• (vi) archiving of archaeological material; and

• (vii) a reporting and recording protocol, including reporting of any wreck or wreck material during construction, operation and decommissioning of the authorised scheme;

• (h) a proposed survey and reinstatement plan for Salicornia forming Annex 1 habitat in the parts of the offshore Order limits within which it is proposed to carry out construction works comprised in Work No. 5B, including the circumstances in which reinstatement will be required and the proposed methods of reinstatement;

• (i) an offshore project maintenance plan to be submitted to the MMO at least 4 months before commencement of the operation of the licensed activities and to include provision for the review and resubmission of the plan every 3 years during the operational phase;

• (j) an aids to navigation management plan specifying how the undertaker will ensure compliance with Condition 4 from the start of construction of the authorised scheme seaward of MHWS to the completion of decommissioning.

• (3) Before the submission of the pre-construction plans and documentation required by this Condition, the undertaker must provide a copy of the plans and documentation to the other undertakers under the Order.

• (4) The undertaker must participate in liaison meetings with other undertakers under the Order as requested from time to time by the MMO in writing in advance. The meetings must be chaired by the MMO and must consider such matters as are determined by the MMO relating to the efficient operation of a deemed marine licence where it has an impact on the efficient operation of any other deemed marine licence issued under the Order (including as varied or transferred).

• (5) Before giving its approval under paragraph (2), the MMO must—

• (a) in relation to any programme or plan submitted under sub-paragraphs (a), (c), (d), (f), (h) or (i), consult the relevant statutory nature conservation body and the Environment Agency;

• (b) in relation to any statement or protocol submitted under sub-paragraphs (b) or (e), consult the relevant statutory nature conservation body;

• (c) in relation to a scheme submitted under sub-paragraph (g), consult Historic England; and

• (d) in relation to a plan submitted under sub-paragraph (j), consult Trinity House.

• (6) In the event that driven or part-driven pile foundations are proposed to be used, the MMO must not approve the plan referred to in paragraph (1) or the code referred to in paragraph (2) unless the MMO is satisfied, after consulting such persons as the Secretary of State may specify in relation to the plan or the part of the code specified by the Secretary of State (in addition to the persons with whom consultation is otherwise required under this Condition), that either the plan or code (or both of them) provide such mitigation as is necessary to avoid adversely affecting the integrity (within the meaning of the 2007 Regulations) of a relevant site, to the extent that marine mammals are a protected feature of that site.

• (7) The mitigation referred to in paragraph (6) may include (without limitation)—

• (a) seasonal restrictions to piling;

• (b) scheduling of piling, having regard to previous, ongoing and future piling associated with other offshore developments, based on an updated assessment of cumulative impacts;

• (c) the use of alternative foundation methodologies, such as jacket foundations (suction piles) or gravity base foundations;

• (d) the use of noise reduction at source technologies;

• (e) the use of other relevant technologies or methodologies that may emerge in the future.

• (8) In paragraph (6), “relevant site” means—

• (a) a European offshore marine site;

• (b) a European site.

• (9) For the purpose of paragraph (6)—

• (a) the Southern North Sea possible Special Area of Conservation must be treated as a European offshore marine site until—

• (i) that Area (or any part of it) becomes a European offshore marine site or a European site; or

• (ii) it is decided that no part of that Area should be a European offshore marine site or a European site; and

• (b) harbour porpoise must be treated as a protected feature of the Southern North Sea possible Special Area of Conservation.

• (10) In this Condition—

• “2007 Regulations” means the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007;

• “disturbance” must be construed in accordance with regulation 39(1)(b) of the 2007 Regulations;

• “European offshore marine site” has the meaning given in regulation 15 of the 2007 Regulations;

• “European site” has the meaning given in regulation 24 of the 2007 Regulations;

• “Southern North Sea possible Special Area of Conservation” means the Southern North Sea possible Special Area of Conservation as set out in the JNCC 2016 Harbour Porpoise Possible Special Area of Conservation Consultation dated January 2016.

9

The undertaker must ensure that a copy of any agreed archaeological report is deposited with the National Record of the Historic Environment, by submitting a Historic England OASIS form with a digital copy of the report within 6 months of completion of construction of the authorised scheme. The undertaker must notify the MMO and, where the report relates to the intertidal area, Lincolnshire County Council that the OASIS report has been submitted to the National Record of the Historic Environment within 2 weeks of the submission.

10

• (1) Each programme, statement, plan, protocol or scheme required to be approved under Condition 8—

• (a) must be submitted for approval at least 4 months before the intended start of construction, except where otherwise stated or where an alternative date is agreed in writing by the MMO; and

• (b) must be accompanied by—

• (i) a statement confirming that the undertaker has complied with Condition 8(3) in relation to the programme, statement, plan, protocol or scheme;

• (ii) any comments received by the undertaker from the other undertakers, or a statement from the undertaker confirming that no such comments were received; and

• (iii) details of any consultation that has been carried out with the undertakers with the benefit of all or part of the deemed marine licences under the Hornsea One Offshore Wind Farm Order 2014 and any comments received from those undertakers.

• (2) The undertaker must comply with the plans and documentation approved under Condition 8 in carrying out the licensed activities unless otherwise agreed in writing by the MMO.

• (3) Before agreeing an alternative date under paragraph (1)(a) or a change to approved details under paragraph (2) relating to any document in respect of which consultation is required under Condition 8, the MMO must consult the relevant consultation body referred to in that Condition.

Reporting of engaged agents, contractors and vessels

11

• (1) The undertaker must provide the following information to the MMO—

• (a) the name and function of any agent or contractor appointed to engage in the licensed activities at least 5 working days before the commencement of the licensed activities or any part of them; and

• (b) each week during the construction of the authorised scheme, a completed Hydrographic Note H102 listing the construction vessels currently and to be used in relation to the licensed activities.

• (2) Any changes to the supplied details must be notified to the MMO and MMO Coastal Office in writing before the agent, contractor or vessel engages in the licensed activities.

• (3) All agents, contractors and vessel operators must comply with the Conditions.

Equipment and operation of vessels engaged in licensed activities

12

• (1) All vessels employed to perform the licensed activities must be constructed and equipped to be capable of the proper performance of the activities in accordance with the Conditions and must comply with paragraphs (2) to (5).

• (2) All motor-powered vessels must be fitted with—

• (a) an electronic positioning aid to provide navigational data;

• (b) radar;

• (c) an echo sounder; and

• (d) multi-channel VHF.

• (3) All vessel names or identification must be clearly marked on the hull or superstructure of the vessel.

• (4) All communication on VHF working frequencies must be in English.

• (5) No vessel may engage in the licensed activities until all the equipment specified in paragraph (2) is fully operational.

Pre-construction monitoring and surveys

13

• (1) The undertaker must, in discharging Condition 8(2)(a), submit details for written approval by the MMO in consultation with the relevant statutory nature conservation body and, in respect of the surveys required under paragraph (2)(b) and (c), in consultation with the Environment Agency, of proposed pre-construction surveys, including methodologies (including appropriate buffers, where relevant) and timings, and a proposed format and content for a pre-construction baseline report; and—

• (a) the survey proposals must be in general accordance with the principles set out in the in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the post-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement; and

• (b) the baseline report proposals must ensure that the outcome of the agreed surveys together with existing data and reports are drawn together to present a valid statement of the pre-construction position, with any limitations, and must make clear what post-construction comparison is intended and the justification for this being required.

• (2) Subject to receipt from the undertaker of specific proposals pursuant to this Condition, so far as applicable, the pre-construction surveys must comprise, in outline—

• (a) a survey to determine the location, extent and composition of any benthic habitats of conservation, ecological and/or economic importance (including Annex 1 habitats) in the parts of the offshore Order limits in which it is proposed to carry out construction works under this licence;

• (b) a phase 1 survey of the intertidal area within which it is proposed to carry out construction works;

• (c) a high-resolution swath bathymetric survey to include a 100% coverage and a side-scan sonar survey of the parts of the offshore Order limits within which it is proposed to carry out construction works and disposal activities under this licence; and

• (d) a grab survey and particle size analysis in the parts of the offshore Order limits within which it is proposed to carry out dredging and disposal activities relating to Work Nos. 3B and 4B under this licence within a period not greater than 12 months before the dredging and disposal activities to determine the extent of suitable herring spawning habitat within those areas.

• (3) The undertaker must carry out the surveys agreed under paragraph (1) and provide the baseline report to the MMO in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing by the MMO in consultation with the relevant statutory nature conservation body.

Construction monitoring

14

• (1) The undertaker must, in discharging Condition 8(2)(a), submit details for written approval by the MMO in consultation with the relevant statutory nature conservation body of any proposed construction monitoring, including methodologies and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must be in general accordance with the principles set out in the in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the pre-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement.

• (2) Subject to receipt from the undertaker of specific proposals pursuant to this Condition, so far as applicable, the construction monitoring must comprise, in outline—

• (a) unless the MMO agrees otherwise in writing, measurements of noise generated by the installation of the first 4 foundations of each discrete foundation type comprised in Work No. 2B to be constructed under this licence where driven or part-driven pile foundations are used;

• (b) recording of any visual sightings or acoustic detection of marine mammals where required as part of the marine mammal mitigation protocol under Condition 8(2)(e); and

• (c) any ornithological monitoring required by the ornithological monitoring plan submitted in accordance with Condition 8(2)(k).

• (3) The undertaker must carry out the surveys approved under paragraph (1), including any further noise monitoring required in writing by the MMO under paragraph (4), and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation body.

• (4) The results of the initial noise measurements monitored in accordance with paragraph (2)(a) must be provided to the MMO within 6 weeks of the installation of the first 4 foundations of each discrete foundation type, for the MMO to determine, following assessment of this report, whether any further noise monitoring is required.

• (5) Construction monitoring must include vessel traffic monitoring by automatic identification system for the duration of the construction period. A report must be submitted to the MMO and the MCA at the end of each year of the construction period.

Post-construction

15

• (1) The undertaker must, in discharging Condition 8(2)(a), submit details for written approval by the MMO in consultation with the relevant statutory nature conservation body and, in respect of the surveys required under paragraph (2)(a), (b) and (c), in consultation with the Environment Agency, of proposed post-construction surveys, including methodologies (including appropriate buffers, where relevant) and timings, and a proposed format, content and timings for providing reports on the results. The survey proposals must be in general accordance with the principles set out in the in-principle monitoring plan and must specify each survey’s objectives and explain how it will assist in either informing a useful and valid comparison with the pre-construction position and/or will enable the validation or otherwise of key predictions in the environmental statement.

• (2) Subject to receipt of specific proposals, so far as applicable, the post-construction surveys must comprise, in outline—

• (a) a survey to determine any change in the location, extent and composition of any benthic habitats of conservation, ecological and/or economic importance (including Annex 1 habitats) identified in the pre-construction survey in the parts of the offshore Order limits in which construction works were carried out. The survey design must be informed by the results of the pre-construction benthic survey;

• (b) a high-resolution swath bathymetric survey to be undertaken no sooner than 6 months following completion of construction works and disposal activities to include a 100% coverage of the parts of the offshore Order limits with a water depth no greater than 12 metres (referenced to Chart Datum) within which construction works and disposal activities were carried out under this licence to assess any changes in bedform morphology and such further monitoring as may be required to ensure that the cables have been buried or protected and sediment is able to move over any installed cable protection. The need for further surveys must be agreed in writing with the MMO following submission of the first year of survey data;

• (c) a high-resolution bathymetric survey of a representative sample area, as may be agreed in writing with the MMO, of the parts of the offshore Order limits with a water depth no greater than 12 metres (referenced to Chart Datum) within which construction works and disposal activities were carried out under this licence following the first major storm event the timing of which must be agreed with the MMO in consultation with Natural England and the Environment Agency;

• (d) a grab survey and particle size analysis in the parts of the offshore Order limits within which dredging and disposal activities relating to Work Nos. 3B and 4B were carried out under this licence within 12 months of the completion of the dredging and disposal activities to determine the extent of suitable herring spawning ground habitat within those areas; and

• (e) vessel traffic monitoring by automatic identification system, for 28 days taking account seasonal variations in traffic patterns, for a maximum duration of 1 year post- construction. A report must be submitted to the MMO and the MCA at the end of the first year after construction is completed.

• (3) The undertaker must carry out the surveys agreed under paragraph (1) and provide the agreed reports in the agreed format in accordance with the agreed timetable, unless otherwise agreed in writing with the MMO in consultation with the relevant statutory nature conservation body.

Offshore decommissioning

16

• (1) No decommissioning activities may commence until a plan for the carrying out of the activities has been submitted to and approved in writing by the MMO and, where the plan relates to the decommissioning of Work No. 4B or 5B, the MMO must consult the Environment Agency before giving its approval.

• (2) The plan must be submitted for approval at least 4 months before the intended start of the decommissioning activities, except where otherwise stated or unless otherwise agreed in writing by the MMO.

• (3) The plan must be implemented as approved.

Amendments to approved plans, etc.

17

• (1) Where any Condition requires the licensed activities to be carried out in accordance with any plan, programme, code, statement, protocol scheme or details (the “plan”) approved by the MMO, the approved plan must be taken to include any amendment to the plan that may subsequently be approved in writing by the MMO.

• (2) Any amendment to the plan must be in accordance with the principles and assessments set out in the environmental statement, and approval for an amendment may be given only where it has been demonstrated to the satisfaction of the MMO that amendment is unlikely to give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

Restrictions in intertidal area and Humber Estuary Special Area of Conservation

18

• (1) The cable protection to be used within the Humber Estuary Special Area of Conservation must be frond mattressing, unless otherwise agreed in writing with the MMO.

• (2) No cable protection may be used within the intertidal area of the Humber Estuary Special Area of Conservation.

• (3) The undertaker must not construct or install the licensed activities comprised in Work No. 4B or 5B in the intertidal area during the overwintering period unless otherwise agreed in writing with the MMO, in consultation with Natural England.

• (4) The undertaker must not construct or install the licensed activities comprised in Work Nos. 4B and 5B in the intertidal area within 500 metres seaward of the seawall during the period of time commencing 2 hours before a high tide predicted to be greater than 6.5 metres Chart Datum and ending 2 hours after a high tide predicted to be greater than 6.5 metres Chart Datum between 1st April and 31st May (inclusive) and 1st August to 30th September (inclusive), unless provided for in the construction and monitoring programme submitted and approved under Condition 8(2)(a) or the construction method statement submitted and approved under Condition 8(2)(b) or unless otherwise agreed in writing by the MMO, in consultation with Natural England.

• (5) The undertaker must not carry out inspections in the intertidal area during the overwintering period to the extent that such inspections require to be carried out—

• (a) more than once per overwintering period;

• (b) over more than 2 consecutive days by people on foot; or

• (c) by more than 5 people on foot at any one time,

unless otherwise agreed in writing with the MMO, in consultation with Natural England or unless provided for in the offshore project maintenance plan submitted and approved under Condition 8(2)(i).

• (6) Where this Condition provides that the MMO may agree to an alternative to what is otherwise provided under this Condition—

• (a) any alternative must be in accordance with the principles and assessments set out in the environmental statement; and

• (b) agreement to any alternative may be given only where it has been demonstrated to the satisfaction of the MMO that the alternative is unlikely to give rise to any materially new or materially different effects from those assessed in the environmental statement.

• (7) In this Condition, “overwintering period” means the period between 1st October and 31st March (inclusive).

SCHEDULE 12 — Protective provisions

PART 1 — Protection for Environment Agency and drainage authorities

1

The provisions of this Part have effect for the protection of a drainage authority unless otherwise agreed in writing between the relevant undertaker and the drainage authority.

2

In this Part—

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

• “drainage authority” means— in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 of the Land Drainage Act 1991; and in relation to a main river or any sea defence work, the Environment Agency;

• “drainage work” means any watercourse other than the River Humber and includes any land that provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence, sea defence or tidal monitoring;

• “ordinary watercourse” has the meaning given in the Land Drainage Act 1991⁵³;

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

• “relevant undertaker” means— in relation to specified work that is Project A works or associated development or ancillary works relating to Project A works, Optimus Wind; in relation to specified work that is Project B works or associated development or ancillary works relating to Project B works, Breesea; and in relation to specified work that is shared works or associated development or ancillary works relating to shared works, Optimus Wind and Breesea;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 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 affect the conservation, distribution or use of water resources.

3

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

• (2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under paragraph 11.

• (3) Any approval of the drainage authority 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 2 months of the submission of the plans for approval( or submission of further particulars if required by the drainage authority under sub-paragraph (1)) or, in the case of a refusal, if it is not accompanied by a statement of the grounds of refusal; and

• (c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work or, where the drainage authority is the Environment Agency, for the protection of water resources for the prevention of pollution or in the discharge of its environmental duties.

• (4) The drainage authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

4

Without limiting paragraph 3, the requirements which the drainage authority may make under that paragraph include conditions requiring the relevant undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (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.

5

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 4, must be constructed—

• (a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part; and

• (b) to the reasonable satisfaction of the drainage authority,

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

• (2) The relevant undertaker must give to the drainage authority—

• (a) not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and

• (b) notice in writing of its completion not later than 7 days after the date on which it is brought into use.

• (3) If the drainage authority reasonably requires, the relevant undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work.

• (4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part, the drainage authority may by notice in writing require the relevant undertaker at the relevant undertaker’s expense to comply with the requirements of this Part or (if the relevant undertaker so elects and the drainage authority 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 drainage authority reasonably requires.

• (5) Subject to sub-paragraph (6), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served on the relevant undertaker, the relevant undertaker 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 drainage authority may execute the works specified in the notice, and any expenditure incurred by it in so doing is recoverable from the relevant 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 drainage authority must not except in emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.

6

• (1) Subject to sub-paragraph (5) the relevant undertaker must from the commencement of the construction of any specified work maintain in good repair and condition and free from obstruction any drainage work that is situated within the limits of deviation on land held by the relevant 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.

• (2) If any drainage work that the relevant undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the relevant undertaker to repair and restore the work, or any part of such work, or (if the relevant undertaker so elects and the drainage authority 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 drainage authority 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 relevant undertaker, the relevant undertaker 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 drainage authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the relevant undertaker.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority 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 that are vested in the drainage authority or that the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; 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.

7

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 the drainage work is otherwise damaged, the impairment or damage must be made good by the relevant undertaker to the reasonable satisfaction of the drainage authority and, if the relevant undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the relevant undertaker the expense reasonably incurred by it in doing so.

8

The relevant undertaker must indemnify the drainage authority in respect of all costs, charges and expenses that the drainage authority may reasonably incur, have to pay or may sustain—

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

• (b) in inspecting the construction of any specified work or any protective works required by the drainage authority under this Part; and

• (c) in carrying out of any surveys or tests by the drainage authority that are reasonably required in connection with the construction of the specified work.

9

• (1) Without limiting the other provisions of this Part, the relevant undertaker must indemnify the drainage authority in respect of all claims, demands, proceedings, costs, damages, expenses or loss that may be made or taken against, recovered from or incurred by, the drainage authority 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; or

• (c) any flooding or increased flooding of any such land; and

• (d) where the drainage authority is the Environment Agency, inadequate water quality in any watercourse or other surface waters or in any groundwater,

that is caused by the construction of any specified work or any act or omission of the relevant undertaker, its contractors, agents or employees whilst engaged on the work.

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

10

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

11

Any dispute between the relevant undertaker and the drainage authority under this Part, if the parties agree, must be determined by arbitration under article 41 (arbitration), but otherwise must be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Business, Energy and Industrial Strategy acting jointly on a reference to them by the relevant undertaker or the drainage authority, after notice in writing by one to the other.

PART 2 — Protection for Network Rail Infrastructure Limited, etc.

1

The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 15, any other person on whom rights or obligations are conferred by that paragraph.

2

In this Part—

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

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

• “network licence” means the network licence, as amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of the powers in section 8 of the Railways Act 1993⁵⁴;

• “Network Rail” means— Network Rail Infrastructure Limited (company number 2904587); and any associated company of Network Rail Infrastructure Limited that holds property for railway purposes, and for the purpose of paragraph (b) “associated company” means any company that is (within the meaning of section 1159 of the Companies Act 2006⁵⁵) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

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

• “railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993⁵⁶) or station lease;

• “railway property” means— any railway belonging to Network Rail; 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 the purposes of such railway or works, apparatus or equipment;

• “relevant undertaker” means— in relation to specified work that is Project A works or associated development or ancillary works relating to Project A works, Optimus Wind; in relation to specified work that is Project B works or associated development or ancillary works relating to Project B works, Breesea; and in relation to specified work that is shared works or associated development or ancillary works relating to shared works, Optimus Wind and Breesea;

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

3

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

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

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

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

4

• (1) The undertaker must not exercise the powers conferred by article 17 (authority to survey and investigate land) or section 11(3) of the 1965 Act (powers of entry) 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 electronic code communications operators: preliminary notices) of the 1990 Act⁵⁷ or article 28 (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 pursuant to this paragraph, its consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5

• (1) The relevant 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—

• (a) the relevant undertaker may serve on the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date on which the engineer receives written notice from the relevant undertaker; and

• (b) if by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as supplied.

• (3) If, by the end of the period of 28 days beginning with the date on which written notice was served on the engineer under sub-paragraph (2), Network Rail gives notice to the relevant undertaker that Network Rail desires itself to construct any part of a specified work that 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 relevant undertaker desires such part of the specified work to be constructed, Network Rail must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the relevant 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 relevant undertaker.

• (4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) that 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 them (including any relocation, de-commissioning or removal of works, apparatus or equipment necessitated by a specified work or the comfort and safety of passengers who may be affected by the specified work), and—

• (a) such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the relevant undertaker, if Network Rail so desires, at the expense of the relevant undertaker in either case, with all reasonable dispatch; and

• (b) the relevant undertaker must not commence the construction of the specified work until the engineer has notified the relevant undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

6

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

• (a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

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

• (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, the relevant undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

• (3) Nothing in this Part imposes—

• (a) any liability on the relevant undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents; or

• (b) any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the relevant undertaker or its servants, contractors or agents.

7

The relevant undertaker must—

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

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

8

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

9

• (1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail.

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

• (3) If during the construction of a specified work by the relevant undertaker, Network Rail gives notice to the relevant undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail, then, if the relevant undertaker decides that part of the specified work is to be constructed,—

• (a) Network Rail may assume construction of that part of the specified work; and

• (b) the relevant undertaker must, notwithstanding any approval of a specified work under paragraph 5(1), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss that it may suffer by reason of the execution by Network Rail of that part of the specified work.

• (4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) provide such details of the formula by which those sums have been calculated as the relevant undertaker may reasonably require.

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

10

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

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

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

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

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

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

11

• (1) In this paragraph—

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

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

• (2) This paragraph applies to EMI only to the extent that the EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised development giving rise to EMI (unless the relevant undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

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

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

• (a) the relevant undertaker must consult Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus that may be at risk of EMI, and thereafter must continue to consult Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

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

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

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

• (7) In the event of EMI having occurred—

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

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

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

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

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

• (b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the relevant undertaker in accordance with paragraph 6.

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

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

• (11) In relation to any dispute arising under this paragraph, the reference in article 41 (arbitration) to an arbitrator to be agreed must be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.

12