The South Humber Bank Energy Centre Order 2021

• (2) Following implementation under sub-paragraph (1) (in the event sub-paragraph (1) applies), the undertaker must consult the Environment Agency on a verification report that demonstrates the effectiveness of the remediation scheme which must be submitted to, and approved by, the relevant planning authority prior to the development coming into operation.

Procedure in cases of unexpected contamination

21

• (1) At any time during construction or operation, in the event that contamination is found that was not expected in the scheme submitted and approved under sub-paragraph (1) of requirement 19, the unexpected contamination must be notified in writing to the relevant planning authority before the end of the following working day.

• (2) Within three months of the notification made under sub-paragraph (1) all details required by sub-paragraphs (1) and (4) of requirement 19 must be submitted to the relevant planning authority in respect of the unexpected contamination, and the relevant planning authority must consult with the Environment Agency in respect of those details.

• (3) Within three months of the approval by the relevant planning authority of the schemes submitted under sub-paragraph (2), the schemes must be implemented as approved unless otherwise agreed by the relevant planning authority.

• (4) Within three months of the implementation of the schemes under sub-paragraph (3) a verification report must be prepared in accordance with the requirements of requirement 20 and submitted to the relevant planning authority for approval after consultation with the Environment Agency.

Flood risk mitigation

22

• (1) No part of the authorised development may be commissioned until a scheme for the mitigation of flood risk during operation has, for that part, been submitted to and approved by the relevant planning authority.

• (2) The scheme submitted and approved under sub-paragraph (1) must be in accordance with the flood risk assessment unless otherwise agreed by the relevant planning authority in consultation with the Environment Agency.

• (3) The scheme submitted and approved under sub-paragraph (1) must provide for critical equipment assets to be elevated to no lower than 4.60m AOD or, alternatively, adequately protected through flood resistance and resilience measures, and a place of safe refuge to be provided at a level no lower than 4.60m AOD.

• (4) The scheme approved under sub-paragraph (1) must be implemented as approved prior to the coming into operation of the authorised development and maintained throughout the operation of the authorised development unless otherwise agreed with the relevant planning authority.

• (5) In this article, “the flood risk assessment” means the flood risk assessment included as appendix 14A of the environmental statement.

Flood warning and evacuation plan

23

• (1) The authorised development must not be occupied until a flood warning and evacuation plan has been submitted to and approved by the relevant planning authority.

• (2) The scheme submitted and approved under sub-paragraph (1) must include provisions to secure the subscription of the authorised development to the Environment Agency’s floodline warnings direct service or equivalent service.

• (3) The flood warning and evacuation plan submitted and approved under sub-paragraph (1) must be implemented as approved prior to the authorised development coming into operation and remain in place throughout the operation of the development unless otherwise agreed by the relevant planning authority.

Delivery and servicing plan

24

• (1) The authorised development must not come into operation until the undertaker has consulted Network Rail on an operational delivery and servicing plan for all operational HGVs entering and leaving the site, the undertaker has submitted that plan to the relevant planning authority, and the relevant planning authority has approved that plan.

• (2) The plan submitted and approved under sub-paragraph (1) must be in accordance with the operational delivery and servicing plan within annex 26 of appendix 9A of the environmental statement unless otherwise agreed by the relevant planning authority.

• (3) The plan approved under sub-paragraph (1) must be implemented as approved throughout the operation of the authorised development unless otherwise agreed by the relevant planning authority.

Operational travel plan

25

• (1) The authorised development must not come into operation until an operational travel plan has been submitted to and approved by the relevant planning authority.

• (2) The plan submitted and approved under sub-paragraph (1) must be in accordance with business travel plan guidance published by the local highway authority and in accordance with the framework operational travel plan within annex 7 of appendix 9A of the environmental statement unless otherwise agreed by the relevant planning authority.

• (3) The plan approved under sub-paragraph (1) must be implemented as approved throughout the operation of the authorised development unless otherwise agreed by the relevant planning authority.

Visibility splays

26

• (1) The authorised development must not come into operation until details of the visibility splays at the proposed new highway access have been submitted to and, after consultation with the local highway authority, approved by the relevant planning authority.

• (2) The details submitted to and approved under sub-paragraph (1) must be in accordance with the access and rights of way plan and swept path analysis plan unless otherwise agreed by the relevant planning authority.

• (3) The details approved under sub-paragraph (1) must be implemented as approved prior to the coming into operation of the authorised development and maintained throughout the operation of the authorised development, and nothing erected or allowed to grow above 1.05 metres higher than the carriageway level of the adjoining highway within the visibility splays unless otherwise agreed by the relevant planning authority.

New highway access

27

• (1) The authorised development must not come into operation until details of the proposed new highway access and highway drainage system have been submitted to and, after consultation with the local highway authority, approved by the relevant planning authority.

• (2) The details submitted to and approved under sub-paragraph (1) must include the proposed layout and construction details of the proposed new entrance to the site including the junction and connection with the adopted highway which must be in accordance with the access and rights of way plan and swept path analysis plan unless otherwise agreed by the relevant planning authority or any details in respect of this new entrance that have been approved under articles 11 or 12.

• (3) The details approved under sub-paragraph (1) must be implemented as approved prior to the coming into operation of the authorised development and maintained throughout the operation of the authorised development.

Parking

28

• (1) The authorised development must not come into operation until details of the proposed location, type and number of permanent vehicle and bicycle parking spaces have been submitted to and approved by the relevant planning authority.

• (2) The details approved under sub-paragraph (1) must be implemented as approved prior to the coming into operation of the authorised development and maintained throughout the operation of the authorised development.

Road condition survey

29

• (1) No part of the authorised development may commence, save for the permitted preliminary works, until a survey of the condition of the adopted section of South Marsh Road (east of Hobson Way) has been carried out and details submitted to and approved by the relevant planning authority.

• (2) The details submitted to and approved under sub-paragraph (1) must include the results of a survey comprising SCANNER, deflectograph equipment, and supporting road core data with cores taken every 100m, contained in a report detailing the survey methodology and the findings as to the theoretical capacity of the structure of the road based on a million standard axle calculation.

• (3) Within six months of the authorised development coming into operation a report must be submitted to the relevant planning authority for approval.

• (4) The report submitted and approved under sub-paragraph (3) must contain the results of traffic surveys along South Marsh Road (east of Hobson Way) conducted after the coming into operation of the authorised development and must include information on actual HGV tonnage and volumes and a comparison against the theoretical capacity of the structure of the road contained in the details approved under sub-paragraph (1).

• (5) In the event that the report shows the actual HGV tonnage and volumes using the road is in exceedance of the theoretical capacity, and the exceedance can reasonably be attributed to the authorised development, the undertaker must within three months of an approval under sub-paragraph (3), submit details of a scheme of improvement for South Marsh Road (east of Hobson Way) and a programme for implementation to the local highways authority for its approval.

• (6) The scheme of improvement approved under sub-paragraph (5) must be implemented by the undertaker as approved.

Air safety

30

• (1) No part of the authorised development may commence, save for the permitted preliminary works, until details of the information that is required by the Defence Geographic Centre of the Ministry of Defence to chart the authorised development for aviation purposes for that part have been submitted to and approved by the relevant planning authority.

• (2) The information submitted to and approved under sub-paragraph (1) must include—

• (a) location of development;

• (b) date of commencement of construction;

• (c) anticipated date of completion of construction of tall structures including the emissions stacks;

• (d) height above ground level of tall structures including the emissions stacks;

• (e) maximum extension height of any construction equipment; and

• (f) details of aviation warning lighting to be fitted to the tall structures, which must include fitting the emissions stacks with a minimum intensity 25 candela omni directional flashing red light or equivalent infra-red light fitted at the highest practicable point of the structure.

• (3) The aviation warning lighting details submitted to and approved under sub-paragraph (2) (f) must be implemented in full before the construction of the emissions stacks is complete unless otherwise agreed by the relevant planning authority.

• (4) At the earliest opportunity prior to the date of completion of the construction of the stacks, the anticipated date of construction completion must be submitted to the relevant planning authority.

• (5) All details submitted to and approved under this requirement must be implemented as approved and maintained throughout (to the extent relevant) the construction of the authorised development and the operation of the authorised development unless otherwise agreed by the relevant planning authority.

Fuel type

31

Only refuse derived fuel comprising of processed waste from municipal, household, commercial and industrial sources may be used in the combustion system in Work No. 1, except for purposes of start-up or support firing when gas or fuel oil may be used.

Fuel storage

32

With the exception of the diesel tank, fuel for the energy recovery facility must not be stored outside of the main building at any time.

Decommissioning

33

• (1) Within two years of the date that the undertaker decides to end commercial operation of the authorised development, the undertaker must submit to the relevant planning authority for its approval a decommissioning plan, including a timetable for its implementation and a decommissioning environmental management plan.

• (2) The plan submitted to and approved under sub-paragraph (1) must be implemented as approved unless otherwise agreed with the relevant planning authority.

Amendments agreed by the relevant planning authority

34

• (1) Where the words “unless otherwise agreed by the relevant planning authority” appear in the requirements—

• (a) whenever the undertaker requests that the relevant planning authority provides its agreement in accordance with those words, the undertaker must provide the relevant planning authority with information on compliance with any document listed in the relevant requirement and any other relevant certified document; and

• (b) any such approval or agreement may only be given in relation to non-material amendments and where it has been demonstrated to the satisfaction of that authority that the subject matter of the approval or agreement sought will not give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

• (2) In cases where the requirement or the relevant sub-paragraph requires consultation with specified persons, any such approval or agreement must not be given without the relevant planning authority having first consulted with those persons or having been provided with satisfactory evidence that the undertaker has consulted with those persons, as applicable.

Combined heat and power

35

• (1) No part of Work No. 1 may be commissioned until a scheme for the provision of steam or hot water pass-outs has been submitted to and approved by the relevant planning authority.

• (2) The scheme submitted under sub-paragraph (1) must as a minimum comply with the conditions relating to steam and hot water pass-outs within any environmental permit granted in respect of the authorised development.

• (3) No part of Work No. 1 may be commissioned until a scheme for the provision of reserve space, suitable for the future provision of water pressurisation, heating and pumping systems for potential off-site users of process or space heating and the later connection of Work No. 1 to such systems, has been submitted to and approved by the relevant planning authority.

• (4) The scheme submitted under sub-paragraph (3) must demonstrate that the reserve space is suitable to accommodate the future installation of a pipeline connection of at least 400 millimetres in diameter.

• (5) The schemes approved under sub-paragraphs (1) and (3) must be implemented as approved prior to the coming into operation of the authorised development and maintained throughout the operation of the authorised development.

• (6) Prior to the installation of any steam or hot water pipeline in the reserve space identified within the scheme approved under sub-paragraph (3), details of the diameter and specification of the pipelines and a timetable for their installation must be submitted to and approved by the relevant planning authority and which must demonstrate that the diameter and specification of the pipelines are suitable for the connection of Work No. 1 to the identified off site users of process or space heating.

• (7) The details approved under sub-paragraph (6) must be implemented as approved and maintained, unless otherwise agreed by the relevant planning authority.

Anticipatory steps towards compliance with any requirement

36

• (1) If before this Order comes into force the undertaker or any other person takes any steps intended to be steps towards compliance with any provision of this Schedule, those steps must be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.

• (2) Any document submitted to the relevant planning authority which the undertaker considers may constitute a step referred to at sub-paragraph (1) must include a statement that it is likely to engage sub-paragraph (1).

Heavy goods vehicle prohibition

37

The plans submitted pursuant to requirements 16, 24 and 33 must not provide for the use of South Marsh Road (west of Hobson Way, also known as South Marsh Lane Bridleway) by heavy goods vehicles accessing to or egressing from the authorised development.

Development consent obligation

38

• (1) Construction of Work No. 1 must not start until a development consent obligation pursuant to section 106 of the 1990 Act has been secured between the relevant planning authority, the undertaker, EP SHB Limited, and Lloyds Bank plc (or any successor in title to the charge).

• (2) The development consent obligation required by sub-paragraph (1) must reflect the obligations as secured by the section 106 agreement.

• (3) Lloyds Bank plc (or any successor in title to the charge) is not required to enter into the development consent obligation required by sub-paragraph (1) where the charge has been discharged and no longer applies to any land within the Order limits and evidence of this has been provided to the satisfaction of the relevant planning authority.

SCHEDULE 3 — DEEMED APPROVAL OF MATTERS REFERRED TO IN REQUIREMENTS

SHBEC planning permission condition number and topic	Requirement number and topic
4. Details of final positioning of buildings, elevations and floor levels	5. Detailed design (position and scale)
5. Details of all external materials	6. Detailed design (appearance)
6. Existing tree planting to be retained	7. Retained trees
7. So far as relating to details and position of boundary treatments, circulation areas and other hard landscaping	8. Means of enclosure and hard landscaping
7. So far as relating to details of permanent lighting	9. Lighting scheme
7. So far as relating to a scheme for soft landscaping and planting	10. Soft landscaping
8. So far as relating to biodiversity protection	11. Biodiversity protection
9. So far as relating to surface water drainage	13. Surface water drainage
9. So far as relating to foul water drainage	14. Foul water drainage
10. So far as relating to construction traffic management and travel planning	16. Construction traffic management and travel planning
11. Details of type of piling to be used	17. Piling
12. Steps where unexpected contamination is found after development has commenced	18. Temporary halting of development on finding unexpected contamination
13. Scheme for investigation of contamination and report on findings of the investigation	19. Investigation and remediation of contamination
14. Remediation scheme under condition 13 to be carried out	20. Implementation of remediation scheme
15. Previously unidentified contamination	21. Procedure in cases of unexpected contamination
17. Flood warning and evacuation plan	23. Flood warning and evacuation plan
18. Delivery and servicing plan	24. Delivery and servicing plan
19. Operational travel plan	25. Operational travel plan
20. Details and implementation of visibility splays at site entrance	26. Visibility splays
21. So far as relating to plans for layout and construction of new entrance and highway drainage	27. New highway access
21. So far as relating to plans for parking	28. Parking
22. Road condition survey of South Marsh Road and subsequent report on traffic survey results	29. Road condition survey
23. Information to be provided to local planning authority to notify UK DVOF & Powerlines at the Defence Geographic Centre	30. Air safety
24. Use only of refuse derived fuels	31. Fuel type
25. No fuel to be stored outside of main building	32. Fuel storage
26. Decommissioning plan	33. Decommissioning

SCHEDULE 4 — STREETS SUBJECT TO STREET WORKS

(1)	(2)	(3)
Area	Streets subject to street works	Description of street works
In the Borough of North East Lincolnshire	South Marsh Road	Construction of a new permanent access and ancillary works in the area shown cross hatched blue and red and marked A on the access and rights of way plan
In the Borough of North East Lincolnshire	South Marsh Road	Works to existing access in the area shown cross hatched blue and marked B on the access and rights of way plan
In the Borough of North East Lincolnshire	South Marsh Road	Utility connection works in the area shown cross hatched blue and red and marked A on the access and rights of way plan

SCHEDULE 5 — STREETS SUBJECT TO PERMANENT ALTERATION OF LAYOUT

(1)	(2)	(3)
Area	Streets subject to alteration of layout	Description of alteration
In the Borough of North East Lincolnshire	South Marsh Road	Construction of a new permanent access and ancillary works in the area shown cross hatched blue and red and marked A on the access and rights of way plan

SCHEDULE 6 — ACCESS

PART 1 — THOSE PARTS OF THE ACCESS TO BE MAINTAINED AT THE PUBLIC EXPENSE

(1)	(2)	(3)
Area	Street	Description of relevant part of access
In the Borough of North East Lincolnshire	South Marsh Road	A new permanent access and ancillary works in the area shown cross hatched red and marked A on the access and rights of way plan

PART 2 — THOSE PARTS OF THE ACCESS TO BE MAINTAINED BY THE STREET AUTHORITY

(1)	(2)	(3)
Area	Street	Description of relevant part of access
In the Borough of North East Lincolnshire	South Marsh Road	A new permanent access and ancillary works in the area shown cross hatched blue and marked A on the access and rights of way plan
In the Borough of North East Lincolnshire	South Marsh Road	Existing access in the area shown cross hatched blue and marked B on the access and rights of way plan

SCHEDULE 7 — STREETS TO BE TEMPORARILY STOPPED UP

(1)	(2)	(3)
Area	Street	Description of extent of temporary stopping up
In the Borough of North East Lincolnshire	South Marsh Road	Construction of a new permanent access and ancillary works in the area shown cross hatched red and marked A on the access and rights of way plan

SCHEDULE 8 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ANGLIAN WATER

1

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

2

In this Part of this Schedule—

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

• “apparatus” means—any works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage;any drain or works vested in Anglian Water under the Water Industry Act 1991[^f00023]; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of the Water Industry Act 1991[^f00024] (adoption of sewers and disposal works) or an agreement to adopt made under section 104 of that Act[^f00025] (agreements to adopt sewer, drain or sewage disposal works, at a future date),and includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any sewer, drain, or works (within the meaning of section 219 of the Water Industry Act 1991[^f00026] (general interpretation)) and 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; and

• “plan” includes sections, drawings, specifications and method statements.

3

The undertaker must not interfere with, build over or near to, any apparatus within the Order limits or 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 the standard protection strips which are the strips of land falling the following distances to either side of the medial line of any apparatus—

• (a) 2.25 metres where the diameter of the pipe is less than 150 millimetres;

• (b) 3 metres where the diameter of the pipe is between 150 and 450 millimetres;

• (c) 4.5 metres where the diameter of the pipe is between 450 and 750 millimetres; and

• (d) 6 metres where the diameter of the pipe exceeds 750 millimetres,

unless otherwise agreed in writing with Anglian Water, such agreement not to be unreasonably withheld or delayed, and such provision must be brought to the attention of any agent or contractor responsible for carrying out any work on behalf of the undertaker in writing.

4

The alteration, extension, removal or re-location of any apparatus must not be implemented until—

• (a) any requirement for a permit under the Environmental Permitting (England and Wales) Regulations 2016[^f00027] or other legislation and any other associated consents are obtained, and any approval or agreement required from Anglian Water on alternative outfall locations as a result of such re-location are approved, such approvals from Anglian Water not to be unreasonably withheld or delayed; and

• (b) the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Anglian Water has agreed all of the contractual documentation required under the Water Industry Act 1991, such agreement not to be unreasonably withheld or delayed; and such works to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

5

Regardless of any provision in this Order or anything shown on any plan, the undertaker must not acquire any apparatus otherwise than by agreement, and before extinguishing any existing rights for Anglian Water to use, keep, inspect, renew and maintain its apparatus in the Order limits, the undertaker must, with the agreement of Anglian Water, create a new right to use, keep, inspect, renew and maintain the apparatus that is reasonably convenient for Anglian Water such agreement not to be unreasonably withheld or delayed.

6

If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is materially obstructed the undertaker must provide such alternative means of access to such apparatus as will enable Anglian Water to maintain or use the apparatus no less effectively than was possible before such obstruction.

7

If in consequence of the exercise of the powers conferred by the Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets must immediately be given to Anglian Water and afforded the same protection as other Anglian Water assets.

8

If for any reason as a result of the construction of any of the works referred to in paragraphs 4, 5 and 7 any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—

• (a) bear and pay the cost reasonably incurred by Anglian Water in making good any damage or restoring the supply; and

• (b) make reasonable compensation to Anglian Water for any other direct expenses, loss, damages, penalty or costs incurred by Anglian Water.

9

To the extent (but not greater) that Anglian Water has not used its reasonable endeavours to mitigate and minimise in whole or in part any costs, expenses, loss, demands, and penalties to which the provisions of this Part apply, that amount of such costs, expenses, loss, demands and penalties are not recoverable from the undertaker.

PART 2 — FOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY AND GAS UNDERTAKER

Application

10

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

Interpretation

11

In this Part of this Schedule—

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

• “apparatus” means—in the case of an electricity undertaking, an electric line or electrical plant, as defined in the Electricity Act 1989[^f00028], belonging to or maintained by that electricity undertaker; andin the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply,together with any replacement apparatus and such other apparatus constructed under the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

• “authorised works” has the same meaning as is given to the term “authorised development” in article 2 of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

• “deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

• “functions” includes powers and duties;

• “ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

• “ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, will require the undertaker to submit for National Grid’s approval a ground mitigation scheme;

• “ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

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

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

• “specified works” means any of the authorised works or activities undertaken in association with the authorised works which—are or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 14(2) or otherwise;may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 14(2) or otherwise; orinclude any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 (National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties”).

Apparatus of Undertakers in stopped up streets

12

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

Acquisition of apparatus

13

• (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not acquire apparatus or override any easement and/or other interest of National Grid otherwise than by agreement.

• (2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or affects the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such a deed of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it is the responsibility of the undertaker to procure or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

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

• (4) Any agreement or consent granted by National Grid under paragraph 17 or any other paragraph of this Part of this Schedule, are not to be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

14

• (1) If, in the exercise of the agreement reached in accordance with paragraph 13(1) or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of an 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 National Grid in question in accordance with sub-paragraphs (2) to (5) inclusive.

• (2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid 56 days’ advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its satisfaction (taking into account paragraph 15(1)) the necessary facilities and rights—

• (a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

• (b) subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.

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

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

Facilities and rights for alternative apparatus

15

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

• (2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid under sub-paragraph 15(1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject then the matter must be referred to arbitration in accordance with paragraph 23 (arbitration) of this Part of this Schedule and the arbitrator may make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection Gas Undertakers

16

• (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan and, if reasonably required by National Grid, a ground monitoring scheme in respect of those works.

• (2) The plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

• (a) the exact position of the works;

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

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

• (d) the position of all apparatus;

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

• (f) any intended maintenance regimes.

• (3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until National Grid has given written approval of the plan so submitted.

• (4) Any approval of National Grid required under sub-paragraph (2)—

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

• (b) must not be unreasonably withheld.

• (5) In relation to any work to which sub-paragraphs (1) and (2) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (6) Works to which this paragraph applies must only be executed in accordance with the plan approved under sub-paragraph (3) and as relevant sub-paragraph (4) as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid must be entitled to watch and inspect the execution of those works.

• (7) Where National Grid requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved under this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any authorised works (or any relevant part of the authorised works) for which protective works are required and National Grid must give 56 days’ notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).

• (8) If National Grid in accordance with sub-paragraphs (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 10 to 12 and 14 to 16 apply as if the removal of the apparatus had been required by the undertaker under paragraph 15(2).

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

• (10) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in section 52 of the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must—

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

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

• (11) At all times when carrying out any works authorised under the Order the undertaker must comply with National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.

• (12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme save that National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 18.

Retained apparatus: Protection: Electricity Undertakers

17

• (1) Not less than 56 days before the commencement of any authorised works that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 15(2) or otherwise, the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity tower foundations.

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

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

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

the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

• (c) the exact position of the works;

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

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

• (f) the position of all apparatus;

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

• (h) any intended maintenance regimes; and

• (i) an assessment of risks of rise of earth issues.

• (3) In relation to any works which will or may be situated on, over, under or within ten metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—

• (a) details of any cable trench design including route, dimensions, clearance to pylon foundations;

• (b) demonstration that pylon foundations will not be affected prior to, during and post construction;

• (c) details of load bearing capacities of trenches;

• (d) details of cable installation methodology including access arrangements, jointing bays and backfill methodology;

• (e) a written management plan for high voltage hazard during construction and ongoing maintenance of the cable route;

• (f) written details of the operations and maintenance regime for the cable, including frequency and method of access;

• (g) assessment of earth rise potential if reasonably required by National Grid’s engineers; and

• (h) evidence that trench bearing capacity is to be designed to 26 tonnes to take the weight of overhead line construction traffic.

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

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

• (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and

• (b) must not be unreasonably withheld.

• (6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (7) Works to which this paragraph applies must only be executed in accordance with the plan approved under sub-paragraph (1) and as relevant sub-paragraph (5) as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid is entitled to watch and inspect the execution of those works.

• (8) Where National Grid requires any protective works to be constructed by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved under this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any authorised works (or any relevant part of the authorised works) for which protective works are required and National Grid must give 56 days’ notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).

• (9) If National Grid in accordance with sub-paragraphs (6) or (8) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 10 to 12 and 14 to 16 apply as if the removal of the apparatus had been required by the undertaker under paragraph 15(2).

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

• (11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in section 52 of the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must—

• (a) comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances; and

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

• (12) At all times when constructing any works authorised under the Order, the undertaker must comply with National Grid’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Expenses

18

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all charges, costs and expenses reasonably anticipated or incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—

• (a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid:

• (i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 14(3); or

• (ii) exercising any powers in the Order transferred to or benefitting National Grid;

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

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

• (d) the approval of plans;

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

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

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 29 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs must be borne by the undertaker.

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

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

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

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

Indemnity

19

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of constructing such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised works) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker must—

• (a) bear and pay on demand the cost reasonably incurred by National Grid in making good such damage or restoring the supply; and

• (b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason of any such damage or interruption or National Grid becoming liable to any third party as aforesaid other than arising from any default of National Grid.

• (2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision does not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid fails to construct the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

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

• (a) any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents; and

• (b) any authorised works or any other works authorised by this Part of this Schedule constructed by National Grid or an assignee, transferee or lessee of National Grid with the benefit of the Order under section 156 of the Planning Act 2008 (benefit of order granting development consent) or article 9 (consent to transfer benefit of the order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised works yet to be constructed and not falling within this paragraph 19(3)(b) are to be subject to the full terms of this Part of this Schedule including this paragraph 19.

• (4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and without the consent of the undertaker.

• (5) National Grid must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under this paragraph 19 applies where it is within National Grid’s reasonable gift and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control.

Enactments and agreements

20

Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Grid and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

21

• (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 14(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 17, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to National Grid must use its best endeavours to co-operate with the undertaker for that purpose.

• (2) Whenever National Grid’s consent, agreement or approval to is required in relation to plans, documents or other information submitted by National Grid or the taking of action by National Grid, it must not be unreasonably withheld or delayed.

Access

22

If in consequence of the agreement reached in accordance with paragraph 14(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

23

Save for differences or disputes arising under paragraphs 14(2), 14(4), 15(1), 16 and 18(5), any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 29 (arbitration).

Notices

24

The plans submitted to National Grid by the undertaker under paragraph 17(1) must be sent to National Grid Plant Protection at plantprotection@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 3 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

25

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

26

In this Part—

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

• “apparatus” means—in the case of a utility undertaker within paragraph (a) of the definition of that term, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00029]), belonging to or maintained by that utility undertaker;in the case of a utility undertaker within paragraph (b) of the definition of that term, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;in the case of a utility undertaker within paragraph (c) of the definition of that term—mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; andany water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A of the Water Industry Act 1991[^f00030] (agreements to adopt water main or service pipe at future date);in the case of a utility undertaker within paragraph (d) of the definition of that term—any drain or works vested in the utility undertaker under the Water Industry Act 1991; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act[^f00031] (adoption of sewers and disposal works) or an agreement to adopt made under section 104 of that Act[^f00032] (agreements to adopt sewer, drain or sewage disposal works, at future date), and includes a disposal main (within the meaning of section 219 of that Act (general interpretation)), a sludge main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

• “utility undertaker” means—any licence holder within the meaning of Part 1 of the Electricity Act 1989 (electricity supply);a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00033] (gas supply);water undertaker within the meaning of the Water Industry Act 1991; anda sewerage undertaker within the meaning of Part 2 of the Water Industry Act 1991,for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

27

This Part does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 of the 1991 Act (street works in England and Wales).

28

Regardless of the temporary stopping up of streets and public rights of way under the powers conferred by article 13 (temporary stopping up of streets and public rights of way), a utility undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.

29

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

30

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part, and any right of a utility undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (7).

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

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

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 29 (arbitration).

• (5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 29 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

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

• (7) Nothing in sub-paragraph (6) 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.

31

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 29 (arbitration).

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

32

• (1) Not less than 28 days before starting the construction of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 30(2), the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.

• (2) Those works must be constructed 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 utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.

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

• (4) If a utility undertaker in accordance with sub-paragraph (1) 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 25 to 31 apply as if the removal of the apparatus had been required by the undertaker under paragraph 30(2).