The M25 Junction 28 Development Consent Order 2022

With respect to any requirement which requires the authorised development to be carried out in accordance with the details or schemes approved under this Schedule, the approved details or schemes are taken to include any amendments that may subsequently be approved in writing by the Secretary of State.

Fencing

13

• (1) Any permanent and temporary fencing and other means of enclosure for the authorised development must be constructed and installed in accordance with Manual of Contract Documents for Highway Works maintained by or on behalf for the undertaker except where any departures from that manual are agreed in writing by the Secretary of State in connection with the authorised development, following consultation by the undertaker with the relevant highways authority to the extent that it relates to matters relevant to its function.

• (2) No part of the new loop road forming Work No. 6 or the new A12 eastbound off-slip forming Work No. 2 is to be opened for traffic until any appropriate measures for the control of deer, including deer fencing, identified following consultation with the relevant planning authority and relevant highway authority on matters related to its function has been installed.

Operation of M25 Junction 28 Roundabout

14

• (1) No part of the new loop road forming Work No. 6 is to be opened for traffic until a plan for the M25 Junction 28 roundabout containing details of the proposed operation of traffic signal timings or such other related measures as may be reasonably practicable to prevent any increase in delays for traffic on the A1023 Brook Street entering the M25 Junction 28 roundabout arising as a result of the authorised development has been submitted to and approved in writing by the Secretary of State, following consultation with the highway authorities within the Order limits.

• (2) The authorised development must be operated in accordance with the approved plan referred to in sub-paragraph (1) or such amended plan following consultation with the highway authorities within the Order limits.

Maylands Golf Course accommodation works

15

Accommodation works to provide replacement facilities for Maylands Golf Course forming Work No. 32 must be undertaken and available for use prior to the opening to traffic of the new loop road forming Work No. 6.

Grove Farm

16

• (1) No part of the authorised development is to commence until a site-specific plan for Grove Farm has been submitted to and approved in writing by the Secretary of State in consultation with Transport for London and the London Borough of Havering.

• (2) The site-specific plan must include:

• (a) details of the planting, visual screen to be installed, and any other mitigation deemed necessary for the boundary to the new A12 eastbound off-slip forming Work No. 2; and

• (b) details of the egress route forming Work No. 15 onto the new A12 eastbound off-slip forming Work No. 2.

• (3) The authorised development must be constructed in accordance with the site-specific plan referred to in sub-paragraph (1).

Non-motorised users’ route

17

No part of the new loop road forming Work No. 6 may be opened for traffic until:

• (a) a scheme or agreement to secure the full non-motorised users’ route between Harold Hill and Brentwood has been submitted to and approved in writing by the Secretary of State in consultation with the relevant highway authorities and relevant planning authorities; and

• (b) the junction section of the non-motorised users’ route within the Order limits has been delivered.

Code of construction practice

18

• (1) No part of the authorised development may commence until a code of construction practice has been submitted to and approved in writing by the Secretary of State in consultation with Transport for London and the relevant planning authorities.

• (2) The authorised development must be carried out in accordance with the approved code of construction practice.

Gardens of Peace Muslim Cemetery

19

• (1) No part of Work No. 29 is to commence within plot nos. 1/8a and 1/8 until a site-specific construction plan has been submitted to and approved in writing by the Secretary of State following consultation with the Gardens of Peace Muslim Cemetery and Cadent.

• (2) Work No. 29 within plot nos. 1/8a and 1/8 must be constructed in accordance with the approved site-specific plan referred to in sub-paragraph (1).

PART 2 — PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirements

20

• (1) Where an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order, the Secretary of State must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—

• (a) the day immediately following that on which the application is received by the Secretary of State;

• (b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 21 (further information); or

• (c) such longer period as may be agreed between the parties.

• (2) Subject to sub-paragraph (3), in the event that the Secretary of State does not determine an application within the period set out in sub-paragraph (1), the Secretary of State is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

• (3) Where—

• (a) an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement included in this Order;

• (b) the Secretary of State does not determine such application within the period set out in sub-paragraph (1); and

• (c) the application is accompanied by a report from a body required to be consulted by the undertaker under the requirement that considers it likely that the subject matter of the application would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,

the application is taken to have been refused by the Secretary of State at the end of that period.

Further information

21

• (1) In relation to any part of an application made under this Schedule, the Secretary of State has the right to request such further information from the undertaker as is necessary to enable the Secretary of State to consider the application.

• (2) In the event that the Secretary of State considers such further information to be necessary, the Secretary of State must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates.

• (3) In the event that the Secretary of State does not give such notification within that 21 day period the Secretary of State is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.

• (4) Where further information is requested under this paragraph in relation to part only of an application, that part is treated as separate from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 20 (applications made under requirements) and in this paragraph.

• (5) In this paragraph, “business day” means a day other than Saturday or Sunday, which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971¹⁰⁶.

Register of requirements

22

• (1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in a form suitable for inspection by members of the public an online register of the documents to be certified under Schedule 10 and those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the Secretary of State.

• (2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the Secretary of State has been applied for or given, providing an electronic link to any document containing any approved details.

• (3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.

Anticipatory steps towards compliance with any requirement

23

If before the coming into force of this Order, the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may 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.

Details of consultation

24

In relation to any provision of this Schedule requiring details to be submitted to the Secretary of State for approval following consultation by the undertaker with another party, the undertaker must provide such other party with not less than 42 days for any response to the consultation and thereafter the details submitted to the Secretary of State for approval must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted including copies of any representations made by a consultee about the proposed application and the undertaker’s response to those representations.

SCHEDULE 3 — PERMANENT STOPPING UP OF STREETS

PART 1 — HIGHWAYS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

(1) Highway to be stopped up	(2) Extent of stopping up	(3) New highway to be provided
A12 Eastbound Off-Slip (including the non-segregated footway in the verge)	Between points 1/18 to 1/19 on sheet 1 of the streets, rights of way and access plans	Work No. 2
M25 Northbound On-Slip	Between points 1/14 on sheet 1 to 3/3 on sheet 3 of the streets, rights of way and access plans	Work No. 8
Non-segregated footway in the verge of the existing A12 Eastbound Carriageway	Between points 1/10 to 1/18 on sheet 1 of the streets, rights of way and access plans	Work No. 2

PART 2 — PRIVATE MEANS OF ACCESS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

(1) Private means of access to be stopped up	(2) Extent of stopping up	(3) New private means of access to be substituted or provided
Private means of egress from Grove Farm	At point A as shown on Sheet 1 of the streets, rights of way and access plans	Work No. 15
Private means of access to land situated to the immediate north of the A12 Eastbound Carriageway	At point B as shown on Sheet 1 of the streets, rights of way and access plans	Work No. 16

SCHEDULE 4 — CLASSIFICATION OF ROADS, ETC.

PART 1 — SPECIAL ROADS

(1) Highway	(2) Extent
M25 Northbound	Between points 4/1 on sheet 4 to 3/1 on sheet 3 of the streets, rights of way and access plans
M25 Junction 28 Loop Road	Between points 1/16 on sheet 1 to 1/17 on sheet 1 of the streets, rights of way and access plans
M25 Northbound On-Slip	Between points 1/13 on sheet 1 to 3/1 on sheet 3 of the streets, rights of way and access plans
M25 Northbound Off-Slip	Between points 1/30 on sheet 1 to 1/6 on sheet 1 of the streets, rights of way and access plans
M25 Southbound	Between points 3/5 and 3/6 and between 3/7 and 3/8 on sheet 3 of the streets, rights of way and access plans

PART 2 — TRANSPORT FOR LONDON ROAD NETWORK

(1) Highway	(2) Extent
A12 Eastbound Off-Slip	Between points 1/10 on sheet 1 to 1/11 on sheet 1 of the streets, rights of way and access plans

PART 3 — TRUNK ROADS

(1) Highway	(2) Extent
M25 Junction 28, circulatory carriageway	Entire M25 Junction 28 circulatory carriageway linking points 1/3, 1/6, 1/7, 1/8, 1/11, 1/12 and back to 1/3 on sheet 1 of the streets, rights of way and access plans
A12 Eastbound On-Slip	Between points 1/3 and 1/34 on sheet 1 of the streets, rights of way and access plans
M25 Northbound On-Slip	Between points 1/12 to 1/13 on sheet 1 of the streets, rights of way and access plans
A12 Eastbound	Between points 1/2 on sheet 1 to 2/1 on sheet 2 of the streets, rights of way and access plans

PART 4 — SPEED LIMITS

(1) Road name and number	(2) Extent	(3) Speed Limit
M25 Junction 28 Circulatory Carriageway	The whole length of the improved M25 Junction 28 circulatory carriageway, for a total distance of 610 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Northbound Carriageway	Along the length of the improved M25 northbound carriageway, for a total distance of 3720 metres, as shown on sheets 1, 3 and 4 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Junction 28 Diverge to Loop Road	Along the length of the new slip road, from its diverge from the M25 northbound carriageway to point C, for a total distance of 265 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour)
M25 Northbound On-Slip and Merge	Along the length of the improved slip road from the M25 Junction 28 circulatory carriageway to its merge with the M25 northbound carriageway, for a total distance of 1234 metres, as shown on sheets 1 and 3 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour)
M25 Northbound Off-Slip and Diverge	Along the length of the improved slip road from its diverge from M25 northbound carriageway to M25 Junction 28 circulatory carriageway, for a total distance of 149 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway from the western-most Order limits to point A, for a total distance of 330 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour, as existing limit
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway between point A and B, for a total distance of 908 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway from point B, for a total distance of 693 metres, as shown on sheets 1 and 2 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
A12 Eastbound Off-Slip and Diverge	Along the length of the realigned slip road, from its diverge from the A12 eastbound off-slip to the M25 Junction 28 circulatory carriageway, for a total distance of 773 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour
A12 Eastbound On-Slip and Merge	Along the length of the improved A12 eastbound on-slip from the M25 Junction 28 circulatory carriageway to its merge with the A12 eastbound carriageway, for a total distance of 546 metres, as shown on sheets 1 and 2 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Junction 28 Loop Road and Merge	Along the length of the new loop road from point C to its merge with A12 eastbound carriageway for a total distance of 1176 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour

PART 5 — TRAFFIC REGULATION MEASURES (CLEARWAYS)

(1) Road name and number	(2) Extent of Regulation	(3) Measures
A12 Eastbound Off-Slip	From the start of A12 eastbound diverge, as shown by point 1/1 on sheet 1 of the speed limits and traffic regulations plans, eastbound for a distance of 773 metres, to the junction with the M25 Junction 28 circulatory carriageway, as shown by point 1/2 on sheet 1 of the speed limits and traffic regulations plans.	Clearway (to include verge and hard strips)
A12 Eastbound Carriageway	From the start of the A12 eastbound diverge, at the location illustrated by point 1/1 on sheet 1 of the speed limits and traffic regulations plans, eastbound for a distance of 918 metres along the mainline carriageway, to point 1/3 on sheet 1 of the speed limits and traffic regulations plans.	Clearway (to include verge and hard strips)

PART 6 — OTHER PUBLIC RIGHTS OF WAY

(1) Highway	(2) Extent
Non-segregated footway in the verge of the A12 Eastbound Off-Slip	Between points 1/10 to 1/11 and between points 1/11 and 1/20 on sheet 1 of the streets, rights of way and access plans

SCHEDULE 5 — TREES SUBJECT TO TREE PRESERVATION ORDERS

(1) Type of tree	(2) Work to be carried out	(3) Relevant part of the authorised development	(4) TPO reference
Area TPO Multiple Species	Potential felling of trees or works to trees to permit the gas main diversion	Work No. 29	TPO 2-02 – A1 Land on south side of Colchester Road. London Borough of Havering.
Area TPO Multiple Species	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 6 and 23C	TPO 18-06 – A1 Maylands Golf Course, Colchester Road, Romford. London Borough of Havering.
Group TPO Multiple Species woodland	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 6, 14 and 30	TPO 5/1948 Map 16, Alder Wood.Brentwood District Council.
Group TPO Multiple Species woodland	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 2, 15, 18, 23B, 23D and 26	TPO 5/1948 Map 21 Grove Wood.Brentwood District Council.

SCHEDULE 6 — LAND IN WHICH NEW RIGHTS ONLY ETC. MAY BE ACQUIRED

To construct and maintain a new private means of access.

To construct, operate, access and maintain diversions to existing utilities apparatus.

SCHEDULE 7 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF RESTRICTIVE COVENANTS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant as they apply in respect of compensation on the compulsory purchase of land and interests in land.

2

• (1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).

• (2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—

(5A) If— (a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants) to the M25 Junction 28 Development Consent Order 2022 (“the 2022 Order”)); (b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 to the 2022 Order) to acquire an interest in the land; and (c) the acquiring authority enters on and takes possession of that land, the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.

3

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973¹⁰⁷ has effect subject to the modifications set out in sub-paragraph (2).

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—

• (a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and

• (b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.

Application of the 1965 Act

4

Part 1 of the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 30 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 25 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 28 (compulsory acquisition of rights and imposition of restrictive covenants)—

• (a) with the modifications specified in paragraph 5; and

• (b) with such other modifications as may be necessary.

5

• (1) The modification referred to in paragraph 4(a) are as follows.

• (2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the context) as referring to, or as including references to—

• (a) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or

• (b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.

• (3) For section 7 (measure of compensation) of the 1965 Act substitute—

(7) In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the restrictive covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

• (4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

• (d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

• (5) Section 11¹⁰⁸ (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 22 (authority to survey and investigate the land)), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A¹⁰⁹ (powers of entry; further notices of entry), 11B¹¹⁰ (counter-notice requiring possession to be taken on specified date), 12¹¹¹ (unauthorised entry) and 13¹¹² (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

• (6) Section 20¹¹³ (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

• (7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 30(4) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

• (8) For Schedule 2A of the 1965 Act substitute—

SCHEDULE2A (1) (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 31 (application of the 1981 Act) of the M25 Junction 28 Development Consent Order 2022 in respect of the land to which the notice to treat relates. (2) But see article 32(3) (acquisition of subsoil or airspace only) of the M25 Junction 28 Development Consent Order 2022 which excludes the acquisition of subsoil or airspace only from this Schedule. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period. (8) If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant, (b) the proposed use of the right or the imposition of the covenant, and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take. (13) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 8 — LAND OF WHICH TEMPORARY POSSESSION ONLY MAY BE TAKEN

(1) Plot Reference Number shown on Land Plans	(2) Purpose for which temporary possession may be taken	(3) Relevant part of the authorised development
Land Plans – Sheet 1 of 4	Land Plans – Sheet 1 of 4	Land Plans – Sheet 1 of 4
1/1	Construction works relating to improvements to the A12 eastbound carriageway.	Work No. 1
1/1b	Construction works relating to improvements to the A12 westbound carriageway.	Work No. 4
1/1c	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/1d	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/2	Construction works relating to improvements to the A12 eastbound carriageway.	Work No. 1
1/7	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/8a	Construction works relating to the diversion of an existing underground high pressure gas pipeline.	Work No. 29
1/11	To establish an environmental bund and construction compound and to undertake associated construction activities.	Work No. 18 and, in respect of the construction compound, all works
1/14	Construction works relating to the provision of accommodation works for Maylands Golf Course.	Work No. 32
1/15	Construction works relating to the establishment of a new attenuation pond with associated drainage works and the realignment of a stretch of Weald Brook.	Work Nos. 21B, 22 and 23C
1/16	Construction works relating to the realignment of stretches of Weald Brook.	Work Nos. 23A and 23B
1/17	Construction works relating to the new loop road.	Work No. 6
1/21a	Construction works relating to the realignment of stretches of Weald Brook.	Work Nos. 23A and 23B
1/26	Construction working area for alterations to the existing egress from Grove Farm.	Work No. 15
1/28a	Construction working area for alterations to the existing egress from Grove Farm.	Work No. 15
Land Plans – Sheet 3 of 4	Land Plans – Sheet 3 of 4	Land Plans – Sheet 3 of 4
3/2	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip and a new gantry.	Work Nos. 7, 8 and 10
3/3	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip and a new gantry.	Work Nos. 7, 8 and 10
3/6	Construction working area for a new gantry.	Work No. 10
3/7	Construction working area for a new gantry.	Work No. 10
3/16	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip, and a new private means of access.	Work Nos. 8 and 14
3/18	To establish an ecological mitigation area.	Work No. 25
3/19	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip, and a new private means of access.	Work Nos. 8 and 14
3/21	Construction works relating to the provision of accommodation works for Maylands Golf Course and to establish an ecological mitigation area.	Work Nos. 25 and 32
3/23	Construction works relating to the provision of accommodation works for Maylands Golf Course.	Work No. 32

SCHEDULE 9 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS

Application

1

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 undertaker concerned.

Interpretation

2

In this Part of this Schedule—

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

• “apparatus” means— in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989¹¹⁴), belonging to or maintained by that undertaker; in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986¹¹⁵ for the purposes of gas supply; in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply; and in the case of a sewerage undertaker— any drain or works vested in the undertaker under the Water Industry Act 1991¹¹⁶; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4)¹¹⁷ (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104¹¹⁸ (agreements to adopt sewer, drain or sewage disposal works, at a future date) of that Act, and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

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

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

On street apparatus

3

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

Apparatus in stopped up streets

4

• (1) Where any street is stopped up under article 15 (permanent stopping up of streets), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus in the street as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

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

Protective works to buildings

5

The undertaker, in the case of the powers conferred by article 21 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6

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

Removal of apparatus

7

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility 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 utility undertaker in accordance with sub-paragraphs (2) to (6).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order 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 must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article 53 (arbitration).

• (5) The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 53, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the 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) If the utility undertaker fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved, provided that the undertaker has first taken all reasonable steps to contact the relevant representatives of the utility undertaker in order to elicit such a response.

• (8) Any deemed approval under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.

Facilities and rights for alternative apparatus

8

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance of the utility undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker or in default of agreement settled by arbitration in accordance with article 53 (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.

Retained apparatus

9

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

• (2) Those works must be executed only in accordance with the plan submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the 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 under sub-paragraph (1) is submitted to it.

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

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

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

Expenses and costs

10

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2).

• (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, 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 53 (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 utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

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

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

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

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

11

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

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

• (b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,

by reason or in consequence of any such damage or interruption.

• (2) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless a utility undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and professional 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 with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.

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

Co-operation

12

Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

13

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

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

14

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

15

In this Part of this Schedule—

• “the 2003 Act” means the Communications Act 2003¹¹⁹;

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

• “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act¹²⁰;

• “electronic communications code network” means— so much of an electronic communications network or infrastructure 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 (application of the electronic communications code) of the 2003 Act; and an electronic communications network which the undertaker is providing or proposing to provide;

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

• “infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and

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

16

The exercise of the powers conferred by article 37 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

17

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

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

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

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

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

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

• (4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 53 (arbitration).

• (5) This Part of this Schedule does not apply to—

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

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

• (6) 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 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

18

• (1) The following provisions will apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

• (2) In this part of this Schedule—

• “the Agency” means the Environment Agency;

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

• “drainage work” means any main river and includes any land which provides or is expected to provide flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

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

• “main river” means all watercourses shown as such on the statutory main river maps held by the Agency and the Department for Environment Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;

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

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 8 metres of a drainage work or is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse or other surface waters or ground water; cause obstruction to the free passage of fish or damage to any fishery; affect the conservation, distribution or use of water resources; or affect the conservation value of the main river and habitats in its immediate vicinity;

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

19

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

• (2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 28.

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

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

• (b) in the case of a refusal must be accompanied by a statement of grounds of refusal;

• (c) is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and

• (d) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

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

20

Without limiting paragraph 19, the requirements which the Agency may have under that paragraph include conditions requiring the undertaker, at its own expense, to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

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

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

by reason of any specified work.

21

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 20, must be constructed—

• (a) without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and

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

and the Agency will be entitled by its officer to watch and inspect the construction of such works.

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

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

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

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

• (6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency will not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 28.

22

• (1) Subject to sub-paragraph (6) the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

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

• (3) Subject to sub-paragraph (5), if, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing will be recoverable from the undertaker.

• (4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with these protective provisions the Agency may serve written notice requiring the undertaker to cease all or part of the specified works and the undertaker must cease the specified works or part thereof until it has obtained the consent or complied with the condition unless the cessation of the specified works or part thereof would cause greater damage than compliance with the written notice.

• (5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency will not, except in the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 28.

• (6) This paragraph does not apply to—

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

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

23

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

24

If by reason of construction of the specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction.

25

• (1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

• (2) If by reason of—

• (a) the construction of any specified work; or

• (b) the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

• (3) If within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and any expenditure incurred by the Agency in so doing will be recoverable from the undertaker.

• (4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker any reasonable expenditure incurred in so doing provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

26

The undertaker must repay to the Agency all reasonable costs, charges and expenses which the Agency may reasonably incur—

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

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

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

27

• (1) The undertaker must make reasonable compensation for costs and losses which may be reasonably incurred or suffered by the Agency by reason of—

• (a) the construction of any specified works comprised within the authorised works; or

• (b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction of the authorised works.

• (2) In sub-paragraph (1)—

• “costs” includes— expenses and charges; staff costs and overheads; legal costs;

• “losses” includes physical damage.

• (3) The undertaker must make reasonable compensation for liabilities, claims and demands arising out of or in connection with the authorised works or otherwise out of the matters referred to in sub-paragraph (1)(a) and (b).

• (4) In sub-paragraph (3)—

• “claims” and “demands” include as applicable— costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand; any interest element of sums claimed or demanded; and

• “liabilities” includes— contractual liabilities; tortious liabilities (including liabilities for negligence or nuisance); liabilities to pay statutory compensation or for breach of statutory duty; and liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).

• (5) The Agency must give to the undertaker reasonable notice of any such claim or demand.

• (6) The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom.

• (7) The Agency must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

• (8) The Agency must, at all times, take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.