The National Grid (Richborough Connection Project) Development Consent Order 2017

(1)	(2)	(3)	(4)
Plot number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the authorised development	Element of Work in respect of which land is not required to be re-instated
1	Dismantling of redundant infrastructure	6A	Pylon PX1
2, 3, 4, 5, 6, 8, 9, 10, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 139 & 140	Dismantling of redundant infrastructure	6A
7, 38, 114, 137 & 142	Dismantling of redundant infrastructure	6A	Removal of pylon foundations only to a depth of 1.5 metres
11, 13, 14, 15, 16, 138, 141, 143, 237, 238, 239, 240, 241, 244, 245, 246, 247, 249, 250, 252 & 253	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6A
144 & 243	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1, 6A and 6B
145, 460, 461, 551, 555, 556, 558, 561, 562, 563, 564, 565, 567, 568, 569, 570, 572, 573, 574, 575, 578, 579, 580, 581, 587, 588, 589, 590, 596, 597, 600, 612, 614, 616, 617, 620, 623, 624, 681, 713, 715, 716, 717, 719, 856, 870, 872, 874, 878 & 879	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6B
146, 147 & 734	Dismantling of redundant infrastructure	1 and 6B	Removal of pylon foundations only to a depth of 1.5 metres
148, 484, 489, 491, 492, 493, 494, 496, 497, 499, 500, 506, 508, 509, 510, 514, 515, 517, 519, 521, 523, 529, 530, 533, 547, 548, 598602, 603, 622, 686, 688, 689, 690, 692, 694, 698, 701, 703, 756, 757, 783, 784, 786, 795, 796, 896 & 903	Dismantling of redundant infrastructure	6B
149 & 298	Construction of the authorised development and mitigation works	1, 4A and 6B	Removal of pylon foundations only to a depth of 1.5 metres
150,151, 284a, 284b, 285, 286, 287, 288, 291, 292, 294, 305a & 488A	Construction of the authorised development and mitigation works	1, 4A and 6B
300	Construction of the authorised development and mitigation works	1 and 6B
301, 303, 304, 467 & 478	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1, 4A and 6B
305b	Construction of the authorised development and mitigation works	1
468, 474, 475, 476, 480, 481, 482, & 483	Dismantling of redundant infrastructure	4A and 6B
469, 470, 471, 472, 473 & 488B	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	4A and 6B
477, 485, 486, 487, 490, 495, 501, 502, 504, 505, 507, 511, 512, 513, 516, 518, 520, 522, 524, 525, 531, 532, 534, 535, 537, 546, 549, 550, 554, 593, 595, 599, 601, 604, 605, 606, 611, 635, 637, 643, 649, 653, 657, 662, 667, 669, 675, 676, 684, 693, 695, 699, 702, 704, 707, 711, 712, 718, 724, 738, 749, 752, 753, 758, 764, 767, 769, 782, 789, 794, 797, 798, 799, 807, 820, 838, 844, 849, 853, 857, 863, 864, 866, 868, 869, 871, 873, 876 & 880	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6B
479	Dismantling of redundant infrastructure	1, 4A and 6B
498, 503, 526, 527, 528, 536, 553, 609, 626, 631, 641, 652, 665, 706, 766, 770, 792, 811, 840, 851, 862, 867 & 885	Dismantling of redundant infrastructure	6B	Removal of pylon foundations only to a depth of 1.5 metres
905 & 906	Dismantling of redundant infrastructure	4B and 6C
909	Dismantling of redundant infrastructure	1, 4B, 6B and 6C	Removal of pylon foundations only to a depth of 1.5 metres
919, 924, 925, 926, 927, 928, 934, 935, 936, 937, 946, 947, 948, 949, 951 & 952	Dismantling of redundant infrastructure	1, 4B and 6C
955 & 961	Construction of the authorised development and mitigation works	1, 4B, 6C and 6D	Removal of pylon foundations only to a depth of 1.5 metres
960, 993 & 1002	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6C
962, 964, 972, 980, 983, 984, 987, 989, 1011, 1023, 1025 & 1044	Dismantling of redundant infrastructure	1 and 6D
963, 969 & 988	Dismantling of redundant infrastructure	1 and 6C
965, 971 & 973	Construction of the authorised development and mitigation works	1, 4B and 6C
970	Construction of the authorised development and mitigation works	1 and 6D
974, 975, 982, 985, 990, 991, 995, 996, 1000, 1006 & 1045	Dismantling of redundant infrastructure	6D
986, 1009, 1015, 1019 & 1021	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6D
997, 998, 999, 1001, 1003, 1004, 1005, 1012, 1014, 1016, 1017, 1018, 1029, 1032, 1034, 1035, 1036 & 1038	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6D
1027	Dismantling of redundant infrastructure	1 and 6D	Removal of pylon foundations only to a depth of 1.5 metres
1040 & 1049	Dismantling of redundant infrastructure	6D	Removal of pylon foundations only to a depth of 1.5 metres
(1)	(2)	(3)	(4)
---	---	---	---
Plot number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the authorised development	Element of Work in respect of which land is not required to be re-instated
1020	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6D
1046	Dismantling of redundant infrastructure	6D
(1)	(2)	(3)	(4)
---	---	---	---
Plot number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the authorised development	Element of Work in respect of which land is not required to be re-instated
1022, 1028, 1033, 1052, 1057, 1062, 1063, 1068, 1074, 1085, 1089, 1091, 1092, 1098, 1104, 1112, 1113, 1114, 1115, 1116, 1117, 1119, 1120, 1125, 1135, 1150, 1156 & 1157	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6D
1053, 1069, 1102, 1127 & 1153	Dismantling of redundant infrastructure	6D	Removal of pylon foundations only to a depth of 1.5 metres
1060, 1088, 1118, 1121, 1123, 1124, 1133, 1146, 1147, 1148, 1151, 1159, 1161 & 1162	Dismantling of redundant infrastructure	6D
1086	Dismantling of redundant infrastructure	1 and 6D
1090, 1107 & 1111	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6D
1129, 1130, 1132, 1134, 1136, 1138, 1143, 1149, 1152, 1164, 1165, 1261, 1263 & 1264	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1, 4C and 6E
1166b	Construction of the authorised development and mitigation works	1, 4C, 5C, 6D and 6E
1167, 1170, 1172, 1173, 1175, 1179, 1180, 1182, 1191, 1192, 1194, 1195 & 1200	Construction of the authorised development and mitigation works	1, 4C and 6E
1169, 1177, 1188, 1190, 1198, 1215, 1231, 1237, 1244 & 1248	Construction of the authorised development and mitigation works	1 and 5C
1178, 1183 & 1189	Dismantling of redundant infrastructure	5C
1201, 1205, 1210, 1213, 1242, 1252, 1253 & 1254	Construction of the authorised development and mitigation works	1 and 5D
1214	Construction of the authorised development and mitigation works	1, 4C and 6E	Removal of pylon foundations only to a depth of 1.5 metres
1219 & 1236	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 5C
1224	Dismantling of redundant infrastructure	1, 5C and 5D
1225	Construction of the authorised development and mitigation works	1, 5A and 5C
1230	Construction of the authorised development and mitigation works	1, 4C, 6E and 6F
1232 & 1238	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1, 4C and 5C
1240	Construction of the authorised development and mitigation works	1, 4C and 5C
1269, 1270, 1271, 1360, 1382, 1391, 1395, 1396, 1417, 1427, 1445, 1446, 1455, 1456, 1462, 1598, 1608, 1637 & 1639	Construction of the authorised development and mitigation works	1 and 6F
1272, 1276, 1277, 1300, 1306, 1332, 1341, 1343, 1344, 1356, 1357, 1401, 1422 & 1425	Dismantling of redundant infrastructure	6F
1275, 1281, 1282, 1285, 1287, 1293, 1294, 1297, 1303, 1308, 1309, 1311, 1313, 1315, 1319, 1320, 1324, 1326, 1327, 1331, 1339, 1342, 1350, 1351, 1354, 1359, 1363, 1365, 1367, 1375, 1376, 1377, 1378, 1381, 1383, 1384, 1386, 1387, 1390, 1393, 1402, 1403, 1404, 1409, 1412, 1413, 1414, 1416, 1420 1426, 1432, 1435, 1447 & 1460	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6F
1278, 1301, 1302, 1307, 1316, 1318, 1325, 1334, 1347, 1353 & 1366	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6F
1279, 1317, 1329, 1346, 1364, 1415 & 1649	Dismantling of redundant infrastructure	6F	Removal of pylon foundations only to a depth of 1.5 metres
1305, 1310, 1355, 1358, 1407, 1408 & 1421	Dismantling of redundant infrastructure	1 and 6F
1614, 1603A & 1603B	Construction of the authorised development and mitigation works	1, 3 and 6F
1612 & 1625	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1, 3 and 6F
(1)	(2)	(3)	(4)
---	---	---	---
Plot number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the authorised development	Element of Work in respect of which land is not required to be re-instated
1385, 1389, 1411, 1418, 1439, 1449, 1458, 1465, 1592 1594, 1596, 1597, 1599, 1600, 1604, 1616, 1618, 1619, 1626, 1627A, 1627B, 1633, 1638, 1643, 1663, 1666 & 1669	Construction of the authorised development and mitigation works	1 and 6F
1394, 1419, 1440, 1443, 1452, 1459, 1461, 1464, 1467, 1472, 1478, 1501, 1502, 1510, 1515, 1516, 1520, 1524, 1525, 1526, 1529, 1532, 1533, 1552, 1571, 1572, 1577, 1595, 1606, 1620A, 1620B, 1620C, 1620D, 1623, 1628A, 1628B, 1632, 1634, 1640, 1641, 1644, 1645, 1646, 1647, 1648, 1650, 1651, 1652, 1655, 1657, 1659, 1660, 1665, 1671 & 1672	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1 and 6F
1429, 1430, 1434, 1505, 1508, 1531, 1539, 1540, 1558, 1588, 1589A, 1589B, 1589C, 1589D & 1658	Dismantling of redundant infrastructure	6F
1431, 1448, 1453, 1487, 1488, 1489, 1495, 1496, 1519, 1523, 1547, 1555, 1559, 1563, 1564, 1566, 1575 & 1664	Dismantling of redundant infrastructure	1 and 6F
1457, 1522, 1527, 1541, 1548, 1562, 1570, 1580, 1581, 1582, 1653, 1662, 1667 & 1670	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	6F
1466 & 1470A	Access to land for the purpose of carrying out the authorised development including the power to carry out any ancillary works necessary to facilitate that access	1
1471 & 1668	Dismantling of redundant infrastructure	1 and 6F	Removal of pylon foundations only to a depth of 1.5 metres
1511, 1544, 1549, 1561, 1573 & 1661	Dismantling of redundant infrastructure	6F	Removal of pylon foundations only to a depth of 1.5 metres
1610 & 1617	Construction of the authorised development and mitigation works	1, 3 and 6F
(1)	(2)	(3)	(4)
---	---	---	---
Plot number of land shown on land plan	Purpose for which temporary possession may be taken	Relevant part of the authorised development	Element of Work in respect of which land is not required to be re-instated
1392, 1593, 1635 & 1636	Construction of authorised development and mitigation works	1 and 6F
1654 & 1656	Dismantling of redundant infrastructure	6F

SCHEDULE 12 — TRAFFIC REGULATION

PART 1 — TEMPORARY PROHIBITION OF VEHICULAR ACCESS AND NO WAITING AND SPEED RESTRICTION

(1)	(2)	(3)
Road	Extent as shown on the Traffic Regulation Order Plans	Note
Headcorn Drive and Sandhurst Drive	Between points TR03.1 and TR03.4 (Headcorn Drive) and between TR03.2 and TR03.3 (Sandhurst Drive) as shown on Sheet 1.	Prohibition of vehicular access at any time.
Vauxhall Road, Broad Oak Road and Shalloak Road	Between points TR05.1 and TR05.4 (Broad Oak Road and Shalloak Road) and between TR05.2 and TR05.3 (Vauxhall Road) as shown on Sheets 1 and 2.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.
Herne Bay Road	Between points TR08.1, and TR08.2 as shown on Sheets 2 and 3.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.
Hoath Road and Bredlands Road	Between points TR09.1 and TR9.4 (Hoath Road) and between TR09.2 and TR09.3 (Bredlands Road) as shown on Sheets 4 and 5.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.
Nethergong Hill and Sandpit Hill	Between points TR10.1, and TR10.2 as shown on Sheet 8.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30 mph for the duration of the construction of the authorised development.
(1)	(2)	(3)
---	---	---
Road	Extent as shown on the Traffic Regulation Order Plans	Note
A28 (Island Road)	Between points TR11.1, and TR11.2 as shown on Sheets 9 and 10.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.
(1)	(2)	(3)
---	---	---
Road	Extent as shown on the Traffic Regulation Order Plans	Note
Gore Street	Between points TR13.1, and TR13.2 as shown on Sheet 11.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.

PART 2 — TEMPORARY PROHIBITION OF VEHICULAR ACCESS AND NO WAITING RESTRICTION

(1)	(2)	(3)
Road	Extent as shown on the Traffic Regulation Order Plans	Note
Farleigh Road	Between points TR01.1, and TR01.2 as shown on Sheet 1.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday.
Ulcombe Gardens	Between points TR02.1 and TR02.2 and TR02.3 as shown on Sheet 1.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday.
Headcorn Drive, Westerham Close and Bicknor Close	Between points TR04.1 and TR04.7 via TR04.2 (Headcorn Drive) and between TR04.3 and TR04.4 (Bicknor Close) and between TR04.5 and TR04.6 (Westerham Close) as shown on Sheet 1.	Prohibition of vehicular access at any time. No waiting restriction between 07:00am to 07:00pm Monday to Sunday.
(1)	(2)	(3)
---	---	---
Road	Extent as shown on the Traffic Regulation Order Plans	Note
A253 (Ramsgate Road)	Between points TR12.1, and TR12.2 as shown on Sheet 11.	Prohibition of vehicular access at any time. Speed limit to be reduced to 30mph for the duration of the construction of the authorised development.

PART 3 — TEMPORARY PROHIBITION OF VEHICULAR ACCESS

(1)	(2)	(3)
Road	Extent as shown on the Traffic Regulation Order Plans	Note
Mayton Lane and Heel Lane	Between points TR06.1 and TR06.4 (Mayton Lane) and between TR06.2 and TR06.3 (Heel Road) as shown on Sheet 3.	Prohibition of vehicular access at any time.
Barnett’s Lane	Between points TR07.1, and TR07.2 as shown on Sheet 3	Prohibition of vehicular access at any time.

SCHEDULE 13 — TREES SUBJECT TO TREE PRESERVATION ORDERS

(1)	(2)	(3)	(4)
Type of tree	Location as shown on the Trees and Hedgerows to be removed or affected plans	Work to be carried out	TPO reference
Hawthorn	Trees along boundary to rear of 18 Bicknor Close (tree group outside TPO area) as shown on Sheet 1	Removal of 31m² of group for pylon working area. (Trees assumed to form part of TPO).	Abbotsbury Housing Estate, Headcorn Drive TPO No 10, 1975/A1
Mixed broadleaved species including ash, oak, hawthorn, cherry and hornbeam	Trees in woodland to rear of 26 and 28 Shalloak Road (tree group partly outside TPO area) as shown on Sheet 2	Removal of 335m² to create working area for removal of existing pylon. Area for removal represents maximum clearance required; pruning may be sufficient. (Trees assumed to form part of TPO).	Priest’s Meadow TPO No 6, 1989/W1
Mixed broadleaved species including oak, ash, silver birch and hawthorn	Trees on eastern edge of Shelford Wood near to Shalloak Road (tree group partly outside TPO area) as shown on Sheet 2	Removal of 3,941m², of which a small segment at northern end is certainly not part of the TPO. In addition, 377m² of trees to be managed by pruning where scaffolding is required for installation of 400kV line over adjacent road.	Shelford Wood, Broad Oak TPO No 17, 1990/W1
Mixed broadleaved species including sweet chestnut, hazel, oak, silver birch, elder, hornbeam and white poplar	Northern part of Kemberland Wood as shown on Sheet 3	6,402m ² of woodland to be managed by coppicing beneath 400kV line.	Kemberland Wood TPO No 2, 1990/W1
Ash	Trees along eastern boundary of Kemberland Wood at northern end of boundary (tree group partly outside TPO area) as shown on Sheet 3	Removal of 610m² (single row of mature ash trees) due to oversail of 400kV line. (Trees assumed to form part of TPO).	Kemberland Wood TPO No 2, 1990/W1
Mixed broadleaved species including oak, elm, sycamore and hawthorn	Tree belt to the east of Sunbeams, Wildwood and Bluebells, off Staines Hill (tree group adjacent to TPO area) as shown on Sheet 4	Removal of overhanging branches and trees on eastern edge of group as part of reptile mitigation (total of 424m² affected, split between TPO No 1, 2003 and TPO No 1, 2006). (Trees assumed to form part of TPO).	Sunbeams Cottage, Staines, Hill, Sturry TPO No 1, 2003/W1
Mixed broadleaved species including oak, elm, sycamore and hawthorn	Tree belt to the east of Brambles, Fallows End, Touchwood House and Stonerock Hall, off Staines Hill (tree group adjacent to TPO area) as shown on Sheet 4	Removal of overhanging branches and trees on eastern edge of group (total of 424m² affected, split between TPO No 1, 2003 and TPO No 1, 2006). (Trees assumed to form part of TPO).	Land between Staines Hill and Babs Oak Hill, Sturry TPO No 1, 2006/W1
Ash	Trees overhanging track to rear of 23 to 37 Seamark Close as shown on Sheet 12	Trees adjacent to existing track, minor pruning of overhanging branches may be required for vehicle access.	20–36 (inclusive) Seamark Close, Monkton TH/TPO/29(1981)

SCHEDULE 14 — PROTECTIVE PROVISIONS

PART 1 — PROTECTION FOR ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

1

For the protection of the statutory undertakers referred to in this Part of this Schedule the following provisions, unless otherwise agreed in writing between the undertaker and the statutory undertaker concerned, have effect.

2

In this Part of this Schedule—

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

• “apparatus” means— in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989³⁹), belonging to or maintained by that electricity undertaker for the purposes of electricity supply; in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by that gas undertaker for the purposes of gas supply; in the case of a water undertaker, mains, pipes or other water apparatus belonging to or maintained by that water undertaker for the purposes of water supply; and in the case of a sewerage undertaker— any drain or works vested in that undertaker under the Water Industry Act 1991⁴⁰; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act, and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and in each case includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

• “relevant statutory undertaker” means, in relation to any apparatus, the statutory undertaker that owns the apparatus or is responsible for its maintenance; and

• “statutory undertaker” means— any licence holder within the meaning of Part 1 of the Electricity Act 1989; a gas transporter within the meaning of Part 1 of the Gas Act 1986⁴¹; a water undertaker within the meaning of the Water Industry Act 1991; and a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991, for the area of the authorised development.

3

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

4

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

5

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

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the relevant statutory undertaker written notice of that requirement, together with a plan and section of the work proposed.

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

• (4) The relevant statutory undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 48 (arbitration), and after the grant to the statutory undertaker of any such facilities and rights as are referred to in sub-paragraph (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (5) Regardless of anything in sub-paragraph (4), if the undertaker gives notice in writing to the relevant statutory undertaker that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus, that work, instead of being executed by the statutory undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the statutory undertaker.

• (6) Nothing in sub-paragraph (5) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

6

• (1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5(2), the undertaker must submit to the relevant statutory undertaker a plan, section and description of the works to be executed.

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

• (3) Any requirements made by a statutory undertaker under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

• (4) If a statutory undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 4 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2).

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

• (6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the relevant statutory undertaker notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

7

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to the relevant statutory undertaker the proper and reasonable expenses reasonably incurred by that statutory undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus.

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 48 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the relevant statutory undertaker by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

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

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

PART 2 — PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1

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

• (2) In this Part of this Schedule—

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

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

• “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the Communications Act 2003⁴²;

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

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

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

2

The exercise of the powers of article 32 (statutory undertakers) are subject to paragraph 23 of Schedule 2 to the Telecommunications Act 1984⁴³.

3

• (1) Subject to sub-paragraphs (2) to (3), if as the result of the authorised development or their construction, or of any subsidence resulting from any of those works any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works, or other property of an operator) the undertaker must bear and pay the cost reasonably and properly incurred by the operator in making good such damage.

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

• (3) Any difference arising between the undertaker and the operator under this paragraph must be referred to and settled by arbitration under article 48 (arbitration).

4

This Part of this Schedule does not apply to—

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

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

5

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

PART 3 — PROTECTION FOR HIGHWAYS AND TRAFFIC

1

• (1) The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing between the undertaker and the highway authority;

• (2) In this Part of this Schedule—

• “highway” has the same meaning as in the 1980 Act;

• “the highway authority” means Kent County Council including its successor;

• “plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of any highway and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;

• “property of the highway authority” means any apparatus or street furniture of the highway authority affixed to or placed under any highway; and

• (3) Wherever in this Part of this Schedule provision is made with respect to the approval or consent of the highway authority, that approval or consent shall be in writing and subject to such reasonable terms and conditions as the highway authority may require.

• (4) In exercising the powers conferred by this Order in relation to any highway the undertaker shall have regard to the potential disruption of traffic which may be caused and shall seek to minimise such disruption so far as is reasonably practicable.

• (5) The undertaker shall not, without the consent of the highway authority, construct any part of the works authorised by this Order under and within 50 metres of the surface of any highway which comprises a carriageway except in accordance with plans submitted to, and approved by, the highway authority; and if within 28 days after such plans have been submitted the highway authority has not approved or disapproved them, it shall be deemed to have approved the plans as submitted.

• (6) In the construction of any part of the said works under a highway no part of it shall, except with the consent of the highway authority, be so constructed as to interfere with the provision of proper means of drainage of the surface of the highway or be nearer than two metres to the surface of the highway.

• (7) The undertaker shall not under the powers conferred by or under this Order without the consent of the highway authority, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over any part of any highway, including subsoil beneath the surface of any highway.

2

• (1) Before commencing the construction of, or the carrying out of any work which involves interference with a highway, the undertaker shall submit to the highway authority for its approval plans, drawings and particulars (in this paragraph referred to as “relevant plans”) relating to the interference, and the works shall not be carried out except in accordance with the relevant plans submitted to, and approved by, the highway authority.

• (2) If within 28 days after the relevant plans have been submitted the highway authority has not approved or disapproved them, it shall be deemed to have approved the relevant plans as submitted.

3

Any officer of the highway authority duly appointed for the purpose may at all reasonable times, on giving to the undertaker such notice as may in the circumstances be reasonable, enter upon and inspect any part of the works authorised by this Order which—

• (a) is in, over or under any highway, or

• (b) which may affect any highway or any property of the highway authority,

during the carrying out of the work, and the undertaker shall give to such officer all reasonable facilities for such inspection and, if he shall be of the opinion that the construction of the work is attended with danger to any highway or to any property of the highway authority on or under any highway, the undertaker shall adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury to the highway.

4

• (1) The undertaker shall not alter, disturb or in any way interfere with any property of the highway authority on or under any highway, or the access thereto, without the consent of the highway authority, and any alteration, diversion, replacement or reconstruction of any such property which may be necessary shall be made by the highway authority or the undertaker as the highway authority thinks fit, and the expense reasonably incurred by the highway authority in so doing shall be repaid to the highway authority by the undertaker.

• (2) If within 28 days after a request for consent has been submitted the highway authority has not given or refused such consent, it shall be deemed to have consented to the request as submitted.

5

The undertaker shall not remove any soil or material from any highway except so much as must be excavated in the carrying out of the works authorised by this Order.

6

• (1) If the highway authority, after giving to the undertaker not less than 28 days’ notice (or, in case of emergency, such notice as is reasonably practicable) of its intention to do so, incurs any additional expense in the signposting of traffic diversions, in the diversion of footpaths, in the taking of other measures in relation to that, or in the repair of any highway by reason of the diversion to that traffic from a road of a higher standard, in consequence of the construction of the works authorised by this Order, the undertaker shall repay to the highway authority the amount of any such expense reasonably so incurred.

• (2) An amount which apart from this sub-paragraph would be payable to the highway authority by virtue of this paragraph in respect of the repair of any highway shall, if the highway fell or would have fallen due for repair as part of the maintenance programme of the highway authority at any time within ten years of the repair being carried out by the undertaker, so as to confer on the highway authority financial benefit (whether by securing the completion of overdue maintenance work for which the highway authority is liable or by deferment of the time for such work in the ordinary course), be reduced by the amount which represents that benefit.

7

• (1) The undertaker shall not, except with the consent of the highway authority, deposit any soil or materials, or stand any plant, on or over any highway so as to obstruct or render less safe the use of the highway by any person, or, except with the like consent, deposit any soil or materials on any highway outside a hoarding, but if within 28 days after request for it any such consent is neither given nor refused it shall be deemed to have been given.

• (2) The expense reasonably incurred by the highway authority in removing any soil or materials deposited on any highway in contravention of this paragraph shall be repaid to the highway authority by the undertaker.

8

The undertaker shall not, except with the consent of the highway authority, erect or retain on or over a highway to which the public continues to have access any scaffolding or other structure which obstructs the highway.

9

The undertaker shall, if reasonably so required by the highway authority, provide and maintain to the reasonable satisfaction of the highway authority, during such time as the undertaker may occupy any part of a highway for the purpose of the construction of any part of the works authorised by this Order, temporary bridges and temporary ramps for vehicular or pedestrian traffic over any part of the works or in such other position as may be necessary to prevent undue interference with the flow of traffic in the highway.

10

• (1) Where any part of any highway has been broken up or disturbed by the undertaker and not permanently stopped up or diverted, the undertaker shall make good the subsoil, foundations and surface of that part of the highway to the reasonable satisfaction of the highway authority, and shall maintain the same to the reasonable satisfaction of the highway authority for such time as may reasonably be required for the permanent reinstatement of the highway

• (2) The reinstatement of that part of the highway shall be carried out by the undertaker to the reasonable satisfaction of the highway authority in accordance with such requirements as to specification of material and standards of workmanship as may be prescribed for equivalent reinstatement work by regulations made under section 71 of the 1991 Act.

11

If any damage to any highway or any property of the highway authority on or under any highway is caused by, or results from, the construction of any work authorised by this Order or any order or omission of the undertaker, its contractors, agents or employees whilst engaged upon such work, the undertaker may, in the case of damage to a highway, make good such damage to the reasonable satisfaction of the highway authority and, where the undertaker does not make good, or in the case of damage to property of the highway authority, the undertaker shall make compensation to the highway authority.

12

The fact that any act or thing may have been done in accordance with plans approved by the highway authority shall not (if it was not attributable to the act, neglect or default of the highway authority or of any person in its employ or its contractors or agents) exonerate the undertaker from any liability, or affect any claim for damages, under this Part or otherwise.

13

Any difference arising between the undertaker and the highway authority under this Part of this Schedule (other than in difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 48 (arbitration).

PART 4 — PROTECTION FOR RAILWAY INTERESTS

1

The following provisions of this Part have effect, unless otherwise agreed in writing between the undertaker and Network Rail.

2

In this Part—

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

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

• “network licence” means the network licence, as amended from time to time, granted to Network Rail by the Secretary of State in exercise of the powers in section 8 of the Railways Act l993⁴⁴;

• “Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006⁴⁵ (meaning of “subsidiary” etc)) 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 dates of, 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 1993⁴⁶) or station lease;

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

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

3

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

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

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

• (b) use its 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 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 under article 48 (arbitration).

• (2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated disapproval of those plans and the grounds of disapproval, the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker and if, by the expiry of the further 28 days period specified in the written notice the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.

• (3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

• (4) When signifying approval of the plans, the engineer may specify any protective works (whether temporary or permanent) which in the opinion of the engineer must be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified work), and such protective works as may be reasonably necessary for those purposes are to be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case with all reasonable dispatch, and the undertaker must not commence the construction of the specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

5

• (1) Any specified work and any protective works to be constructed by virtue of paragraph 4(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 4;

• (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;

• (d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property; and

• (e) so as not to interfere with the safe use of any railway of Network Rail or the traffic thereon or the safety of passengers using railway property.

• (2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and 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 any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

6

The undertaker must—

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

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

7

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.

8

• (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 12 months after the completion of that work, in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail; and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

• (2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work, and the undertaker must, notwithstanding any such approval of a specified work under paragraph 4(1), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

• (3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 9(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

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

9

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

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

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

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

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

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

10

• (1) In this paragraph—

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

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

• (2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 4(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

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

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

• (a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 4(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

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

• (5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but Network Rail may, in its reasonable discretion, select the means of prevention and the method of their execution, and in relation to such modifications paragraph 4(1) has effect subject to this sub-paragraph.

• (6) If at any time prior to the commencement of regular revenue-earning operations comprised in 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 undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

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

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

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

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

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

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

• (b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 5.

• (9) For the purpose of paragraph 9(a) any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

• (10) In relation to any dispute arising under this paragraph the reference in article 48 (arbitration) to the Secretary of State must be read as a reference to the President of the Institution of Engineering and Technology.

11

If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

12

The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail, and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

13

Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ prior notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

14

• (1) The undertaker must—

• (a) pay to Network Rail all reasonable and proper costs, charges, damages and expenses not otherwise provided for in this Part (but subject to the provisions of this paragraph) which may be occasioned to or reasonably incurred by Network Rail by reason of—

• (i) the construction or maintenance of a specified work or the failure of such a work; or

• (ii) any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work; and

• (b) indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission.

• (2) The fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the supervision of the engineer does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under sub-paragraph (1).

• (3) Network Rail must—

• (a) give the undertaker written notice of any such claims or demands as soon as reasonably possible after Network Rail become aware of any such claims or demands;

• (b) not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior consent of the undertaker (which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand);

• (c) take all reasonable steps to mitigate any liabilities relating to such claims or demands; and

• (d) keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.

• (4) In no circumstances is the undertaker liable to Network Rail under sub-paragraph (1) for any indirect or consequential loss or loss of profits, save that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—

• (a) Network Rail is liable to make payment of the relevant costs pursuant to the terms of an agreement between Network Rail and a train operator; and

• (b) the existence of that agreement and the extent of Network Rail’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker,

but not otherwise.

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

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

• (7) In this paragraph—

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

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

15

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part.

16

In the assessment of any sums payable to Network Rail under this Part, no account must be taken of any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part or increasing the sums so payable.

17

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

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

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

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

18

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

19

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 43 (certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read-only memory.

PART 5 — PROTECTION FOR SOUTH EAST WATER LIMITED

General

1

The following provisions of this Part have effect unless otherwise agreed in writing between the undertaker and South East Water Limited.

2

In this Part—

• “alternative apparatus” means any temporary or permanent alternative apparatus adequate to enable SEW to fulfil its statutory functions in a manner not less efficient than previously;

• “apparatus” means mains, pipes or other water apparatus belonging to or maintained by SEW for the purposes of water supply and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;