The A38 Derby Junctions Development Consent Order 2023

• (11) In relation to any dispute arising under this paragraph the reference in article 48 (arbitration) to the Institution of Civil Engineers is to be read as a reference to the Institution of Engineering and Technology.

40

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

41

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

42

• (1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail—

• (a) by reason of the construction or maintenance of a specified work or a protective work or the failure of it;

• (b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work or a protective work,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or protective work or any such failure, act or omission and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision will not (if it was done without negligence on the part of Network Rail or its employees, contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

• (2) Network Rail must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior written consent of the undertaker.

• (3) The sums payable by the undertaker under sub-paragraph (1) shall if relevant include a sum equivalent to the relevant costs.

• (4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

• (5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

• (6) In this paragraph—

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

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

43

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable pursuant to this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 42) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

44

In the assessment of any sums payable to Network Rail under this Part of this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

45

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

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

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

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

46

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

47

The undertaker must give written notice to Network Rail where any application is proposed to be made by the undertaker for the Secretary of State’s consent under article 10 (consent to transfer benefit of order) and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

• (a) the nature of the application to be made;

• (b) the extent of the geographical area to which the application relates; and

• (c) the name and address of the person acting for the Secretary of State to whom the application is to be made.

48

The undertaker must no later than 28 days from the date that the plans and documents referred to in article 46 (certification of plans etc.) are certified by the Secretary of State provide a set of those plans and documents to Network Rail in a format specified by Network Rail.

PART 5 — FOR THE PROTECTION OF CADENT GAS LIMITED

Application

49

The following provisions apply for the protection of Cadent, unless otherwise agreed in writing between the undertaker and Cadent.

Interpretation

50

In this Part of this Schedule—

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

• “apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by Cadent for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of Cadent for the purposes of transmission, distribution and/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(1) 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;

• “Cadent” means Cadent Gas Limited and/or its successors in title and/or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

• “commence” has the same meaning as in article 2(1) of the Order and commencement shall be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms commence and commencement include operations consisting of archaeological investigations, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions, establishment of working areas and compounds, and delivery of construction materials, plant and equipment;

• “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 and/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;

• “facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;

• “functions” includes powers and duties;

• “ground mitigation scheme” means a scheme approved by Cadent (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, shall require the undertaker to submit for Cadent’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” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Cadent including retain, lay, construct, inspect, protect, use, access, replace, renew or remove;

• “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;

• “rights” includes restrictive covenants, and in relation to decommissioned apparatus, the surrender of rights, release of liabilities and transfer of decommissioned apparatus; 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 55(2) or otherwise; or may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 55(2) or otherwise.

On Street Apparatus

51

• (1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provision of Part 3 of the 1991 Act, except—

• (a) paragraphs 52 (apparatus of Cadent in stopped up streets), 57 (retained apparatus: protection of Cadent), 58 (expenses) and 59 (indemnity); and

• (b) where sub-paragraph (2) applies, paragraph 55 (removal of apparatus) and 56 (facilities and rights for alternative apparatus).

• (2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but is not wholly replaced within the existing public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.

Apparatus of Cadent in stopped up streets

52

• (1) Where any street is stopped up under article 16 (permanent stopping up and restriction of use of streets and private means of access), if Cadent has any apparatus in the street or accessed via that street Cadent is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to Cadent, or procure the granting to Cadent of, legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph shall affect any right of the undertaker or of Cadent to require the removal of that apparatus under paragraph 55.

• (2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up and restriction of use of streets), Cadent will be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as it would have been entitled to do immediately before such temporary stopping up or diversion in respect of any apparatus which at the time of the stopping up or diversion was in that highway

• (3) The protective provisions in this Part of this Schedule apply and take precedence over article 36(2) to (7) (apparatus and rights of statutory undertakers in stopped up streets), which shall not apply to Cadent.

Protective works to buildings

53

• (1) The undertaker must exercise the powers conferred by article 21 (protective works to buildings), so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent (such consent not to be unreasonably withheld or delayed) and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of Cadent or any interruption in the supply of gas by Cadent, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and, subject to sub-paragraph (2), must—

• (a) pay compensation to Cadent for any loss sustained by it; and

• (b) indemnify Cadent against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by Cadent, by reason of any such damage or interruption.

• (2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of Cadent or its contractors or workmen; and Cadent will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement, admission of liability or compromise thereof shall be made by Cadent, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Acquisition of land

54

• (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 appropriate or acquire any interest in land of Cadent, or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of Cadent, 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 Cadent and the undertaker) that is 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 Cadent or affect the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure or secure the consent to 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 Cadent 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 Cadent or other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule shall prevail.

• (4) Any agreement or consent granted by Cadent under paragraph 57 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

• (5) As a condition of an agreement between the parties under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement or other interest of Cadent in such decommissioned apparatus and release Cadent from all liabilities in respect of such decommissioned apparatus from the date of such surrender.

• (6) Where the undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 55 do not apply, the undertaker must, unless Cadent agrees otherwise:

• (a) retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; or

• (b) (where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.

Removal of apparatus

55

• (1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 54, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and, the facilities and rights referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of Cadent and 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 Cadent advance 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 Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 56(1)) the necessary facilities and rights—

• (a) for the construction of alternative apparatus; and

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

• (3) If 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, Cadent 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 assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) 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 Cadent and the undertaker.

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

Facilities and rights for alternative apparatus

56

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

• (2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (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 Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed then the terms and conditions to which those facilities and rights are subject in the matter may be referred to arbitration in accordance with paragraph 63 (arbitration) and the arbitrator may make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of Cadent

57

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

• (2) The plan to be submitted to Cadent 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 specified works until Cadent has given written approval of the plan so submitted.

• (4) Any approval of Cadent under sub-paragraph (3)—

• (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 or delayed and Cadent must meaningfully engage with the undertaker within 28 days of the date of submission of the plan under sub-paragraph (1).

• (5) Cadent 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) Specified works must only be executed in accordance with—

• (a) the plan, submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and Cadent; and

• (b) all conditions imposed under sub-paragraph (4)(a), and Cadent is entitled to watch and inspect the execution of those works.

• (7) Where Cadent 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 pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.

• (8) If Cadent, 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 49 to 51 and 54 to 56 apply as if the removal of the apparatus had been required by the undertaker under paragraph 55(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 specified 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) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works—

• (a) the undertaker must implement an appropriate ground mitigation scheme; and

• (b) Cadent retains the right to carry out further necessary protective works for the safeguarding of its apparatus and can recover any such costs in accordance with paragraph 58.

• (11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works and must comply with the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances.

• (12) In this paragraph “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works reasonably believes to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

58

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand all charges, costs and expenses reasonably anticipated (subject to Cadent first providing to the undertaker a detailed design and estimate which is to be agreed between the parties) or reasonably incurred by Cadent 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 Cadent in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—

• (i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 55(3) if it elects to do so; or

• (ii) exercising any compulsory purchase powers under this Order transferred to or benefitting Cadent;

• (b) in connection with the cost of the carrying out of 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 carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

• (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; and

• (g) any watching brief pursuant to paragraph 57(6).

• (2) There will 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 paragraph 63 (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 Cadent by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) 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 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 Cadent in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Cadent 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

59

• (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 (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) 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 carrying out 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 Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker must—

• (a) bear and pay on demand accompanied by an invoice or claim from Cadent, the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and

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

• (2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief does not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Cadent fails to carry out and execute 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 Cadent, its officers, servants, contractors or agents;

• (b) any part of the authorised development carried out by Cadent in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 10 (consent to transfer benefit of Order); and

• (c) any indirect or consequential loss of any third party arising from any such damage or interruption, which is not reasonably foreseeable.

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

• (5) Cadent 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 applies and if reasonably requested to do so by the undertaker Cadent must provide an explanation of how the claim has been minimised.

Enactments and agreements

60

Except where this Part of this Schedule provides otherwise, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent 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

61

• (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or Cadent requires the removal of apparatus under paragraph 55(2) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 57, 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 works and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose.

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

Access

62

If in consequence of the agreement reached in accordance with paragraph 54(1) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

63

Save for differences or disputes arising under paragraph 55(2) and 55(4) any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 48 (arbitration).

Notices

64

Notwithstanding article 47 (service of notices) any plans submitted to Cadent by the undertaker pursuant to paragraph 57(1) must be sent via email to Cadent Gas Limited Plant Protection at plantprotection@cadentgas.com as well as via post to Plant Protection, Cadent Gas Limited, Brick Kiln Street, Hinckley, Leicestershire, LE10 0NA, or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker in writing.

SCHEDULE 10 — DOCUMENTS TO BE CERTIFIED

(1)	(2)	(3)
Document	Document Reference/revision and date	Examination or other Reference
Book of reference – Regulation 5(2)(d)	Document 4.3(b) – 17 November 2020
Classification of Roads Plans	Document 2.9(a) - 19 December 2019	REP3-001
Crown Land Plans - Regulation 5(2)(n) and 5(4)	Document 2.4(a) - 19 November 2019	REP2-004
Engineering Section Drawings – Regulations 5(2)(o), 5(4) and 6(2)	Document 2.10 - 23 April 2019	APP-014
Environmental Statement, excluding chapters 7, 8, 12; figures 7.1A and 7,5; and appendices 2.1, 2.2, 7.2, 8.20, 13.2A and 13.2B – Regulation 5(2)(a)	Documents 6.1, 6.2 and 6.3 - 23 April 2019	APP-039 to APP-240, excluding APP-045, APP-046, APP-050, APP-085, APP-091, APP-159, APP-160, APP-177, APP-217, APP-229 and APP-230
Environmental Statement, chapters 7(a), 8(a), 12(a); appendices 2.2(a), 7.2(a), 8.20(a), 13.2A(a) and 13.2B(a); and figures 7.1(a) and 7.5(a) – Regulation 5(2)(a)	Documents 6.1, 6.2 and 6.3 Chapter 7(a) – November 2019 Chapter 8(a) – 26 March 2020 Chapter 12(a) – 26 March 2020 Appendix 2.2(a) – June 2020 Appendix 7.2(a) – 26 March 2020 Appendix 8.20(a) – 26 March 2020 Appendix 13.2A(a)- 26 March 2020 Appendix 13.2B(a) – 3 February 2020 Figure 7.1A(a) – 19 November 2019 Figure 7.5(a) – 26 March 2020	REP2-008, REP9-009, REP9-011, REP-14-[tbc], REP2-010, REP9-013, REP9-014, REP9-015, REP9-017 and REP9-018
Environmental Statement Addendum	Document 6.14	REP14-010
General Arrangement Plans - Regulation 5(2)(o)	Document 2.6(b) – 19 November 2019	REP2-006
Hedgerows Plans – Regulation 8(1)(c)(ii)	Document 8.50 – 19 December 2019	REP3-021
Land Plans - Regulation 5(2)(i) and 5(4)	Document 2.2(c) – 17 November 2020
Location Plans - Regulation 5(2)(d)	Document 2.1 – 23 April 2019	APP-005
Outline Environmental Management Plan	Document 6.12(f) – 18 June 2020	REP14-008
Special Category Land Plans	Document 2.3(b) – 17 November 2020
Streets Rights of Way and Access Plans – Regulations 5(2)(k), 5(4) and 6(2)	Document 2.7(b) – 10 March 2020	REP7-002
Traffic Management Plan	Document 7.4(c) – 18 June 2020	REP14-011
Traffic Regulations Measures Plans	Document 2.8(a) – 3 February 2020	REP4-003
Works Plans - Regulation 5(2)(j) and 5(4)	Document 2.5(b) – 19 November 2019	REP2-005

Signed

Signed by authority of the Secretary of State for Transport

Natasha Kopala — Head of the Transport and Works Act Orders Unit — Department for Transport — 17th August 2023

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

The Order authorises Highways England to undertake alterations to and realignment and grading of three junctions on the A38 known as Kingsway, Markeaton and Little Eaton and to carry out all associated works.

The Order permits Highways England to acquire, compulsorily or by agreement, land and rights in land and to use the land for this purpose.

The Order also makes provision in connection with the maintenance of the authorised development.

A copy of the plans, engineering section drawings, book of reference and environmental statement mentioned in this Order and certified in accordance with article 46 (certification of plans etc.) may be inspected free of charge during working hours at Highways England, Floor 5, Two Colmore Square, 38 Colmore Circus, Birmingham B4 6BN.

Footnotes

[^f00001]: 2008 c. 29. Parts 1 to 7 were amended by Chapter 6 of Part 6 of the Localism Act 2011 (c. 20).

[^f00002]: S.I. 2009/2264, amended by S.I. 2010/439, S.I. 2010/602, S.I. 2012/635, S.I. 2012/2654, S.I. 2012/2732, S.I. 2013/522, S.I. 2013/755, S.I. 2014/469. S.I. 2014/2381, S.I. 2015/377, S.I. 2015/1682, S.I. 2017/524, S.I. 2017/572, S.I. 2018/378, 2019/734; modified by S.I. 2012/1659.

[^f00003]: S.I. 2010/103, amended by S.I. 2012/635.

[^f00004]: Section 115 was amended by section 160 of the Housing and Planning Act 2016 (c. 22).

[^f00005]: Part 1 of Schedule 5 was amended by paragraph 4 of Part 1 of Schedule 8 and Part 2 of Schedule 22 to the Marine and Coastal Access Act 2009 (c. 23), paragraph 71 of Part 1 of Schedule 13 to the Localism Act 2011.

[^f00006]: 1961 c. 33.

[^f00007]: 1965 c. 56.

[^f00008]: 1980 c. 66.

[^f00009]: 1981 c. 66.

[^f00010]: 1984 c. 27.

[^f00011]: 1990 c. 8.

[^f00012]: 1991 c. 22.

[^f00013]: 2008 c. 29.

[^f00014]: Section 56(4) was amended by paragraph 10(2) of Schedule 7 to the Planning and Compensation Act 1991 (c. 34).

[^f00015]: The definition of “cycle track” was amended by section 1 of the Cycle Tracks Act 1984 (c. 38) and paragraph 21(2) of Schedule 3 to the Road Traffic (Consequential Provisions) Act 1988 (c. 54).

[^f00016]: Section 32(1) was amended by S.I. 2011/1210.

[^f00017]: The definition of “local highway authority” was amended by section 1(6) and paragraph 60(1) and (2)(a) of Schedule 1 to the Infrastructure Act 2015 (c. 7).

[^f00018]: 1981 c. 67. The definition of “owner” was amended by paragraph 9 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34). There are other amendments to section 7 which are not relevant to this Order.

[^f00019]: Section 48 was amended by section 124 of the Local Transport Act 2008 (c. 26).

[^f00020]: See section 49, as amended by section 1(6) of, and paragraphs 113 and 117(a) of Part 2 of Schedule 1 to the Infrastructure Act 2015.

[^f00021]: Section 121A was inserted by section 168(1) of, and paragraph 70 of Schedule 8 to, the 1991 Act; and amended by section 271 of the Greater London Authority Act 1999 (c. 29), section 1(6) of, and paragraphs 70 and 95 of Schedule 1 to, the Infrastructure Act 2015, and S.I. 1999/1920 and S.I. 2001/1400.

[^f00022]: Section 10 was amended by section 22(2) of the 1991 Act, paragraph 22 of Schedule 2 to the 2008 Act and section 1(6) of, and paragraph 10 of Schedule 1 to, the Infrastructure Act 2015.

[^f00023]: Section 19(1) was amended by section 1(6) of, and paragraph 15 of Schedule 1 to, the Infrastructure Act 2015.

[^f00024]: 1991 c. 57. Paragraph 5 was amended by section 100(1) and (2) of the Natural Environment and Rural Communities Act 2006 (c. 16), section 84 of, and paragraph 3 of Schedule 11 to, the Marine and Coastal Access Act 2009 (c. 23), paragraphs 40 and 49 of Schedule 2 to the Flood and Water Management Act 2010 (c. 29) and S.I. 2013/755. Paragraph 6 was amended by paragraph 26 of Schedule 15 to the Environment Act 1995 (c. 25), section 224 of, and paragraphs 20 and 24 of Schedule 16, and Part 5(B) of Schedule 22 to, the Marine and Coastal Access Act 2009 and S.I. 2013/755. Paragraph 6A was inserted by section 103(3) of the Environment Act 1995.

[^f00025]: 1991 c. 59. Section 23 was amended by paragraph 192(2) of Schedule 22 to the Environment Act 1995, paragraphs 25 and 32 to the Flood and Water Management Act 2010 and S.I. 2013/755.

[^f00026]: Section 32 was amended by S.I. 2013/755.

[^f00027]: Section 66 was amended by paragraphs 25 and 38 of Schedule 2 to the Flood and Water Management Act 2010 and section 86 of the Water Act 2014 (c. 21).

[^f00028]: 2017 c. 20.

[^f00029]: S.I. 2016/1154. Regulation 12 was amended by S.I. 2018/110.

[^f00030]: S.I. 2013/1781.

[^f00031]: S.I. 2015/107.

[^f00032]: The definition of “drainage” was substituted by section 100(2) of the Environment Act 1995.

[^f00033]: Section 64 was amended by Schedule 17 to the Local Government Act 1985 (c. 51) and Schedule 9 to the 1991 Act.

[^f00034]: Section 184 was amended by sections 35, 37, 38 and 46 of the Criminal Justice Act 1982 (c. 48), section 4 of, and paragraph 45(11) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11); and section 168 of, and paragraph 9 of Part 1 of Schedule 8 and Schedule 9 to, the 1991 Act.

[^f00035]: Section 56 was amended by sections 40 and 43 of and paragraph 1 of Schedule 1 to the Traffic Management Act 2004 (c.18).

[^f00036]: Section 56A was inserted by section 44 of the Traffic Management Act 2004.

[^f00037]: Section 58 was amended by section 51 of the Traffic Management Act 2004.

[^f00038]: Section 58A was inserted by section 52(1) of the Traffic Management Act 2004.

[^f00039]: Schedule 3A was inserted by section 52(2) of, and Schedule 4 to, the Traffic Management Act 2004.

[^f00040]: Sections 54, 55, 57, 60, 68 and 69 were amended by section 40(1) and (2) of, and Schedule 1 to the Traffic Management Act 2004.

[^f00041]: Section 54 was also amended by section 49(1) of the Traffic Management Act 2004.

[^f00042]: Section 55 was also amended by sections 49(2) and 51(9) of the Traffic Management Act 2004.

[^f00043]: Section 57 was also amended by section 52(3) of the Traffic Management Act 2004.

[^f00044]: Section 59 was amended by section 42 of the Traffic Management Act 2004.

[^f00045]: Section 10(2) was amended by section 22(2)(a) of the 1991 Act, and by section 1(6) of, and paragraphs 1 and 10(1) and (2) of Schedule 1 to, the Infrastructure Act 2015 (c. 7).

[^f00046]: 2003 c. 21. Schedule 3A was inserted by section 4(2) of, and Schedule 1 to, the Digital Economy Act 2017 (c. 30).

[^f00047]: 1991 c. 56.

[^f00048]: 2000 c. 26.

[^f00049]: 2004 c. 18.

[^f00050]: Section 32 was amended by section 102 of, and Schedule 17 to, the Local Government Act 1985 (c. 51) and section 168(1) of, and paragraph 39 of Schedule 8 to, the 1991 Act.

[^f00051]: 2004 c. 18.

[^f00052]: 1991 c. 56. Section 106 was amended by sections 35(1) and (8) and 43(2) of, and Schedule 2 to, the Competition and Service (Utilities) Act 1992 (c. 43) and sections 36(2) and 99 of the Water Act 2003 (c. 37) and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29).

[^f00053]: S.I. 2016/1154. Regulation 12 was amended by S.I. 2018/110.

[^f00054]: 1991 c. 57.

[^f00055]: Section 152 was amended by S.I. 2009/1307.

[^f00056]: 1981 c. 67.

[^f00057]: Section 11(1) was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1) and sections 186(1) and (2), 187 and 188 of the Housing and Planning Act 2016 (c. 22).

[^f00058]: Section 152 was amended by S.I. 2009/1307.

[^f00059]: Section 138 was amended by section 23(1) and (4) of the Growth and Infrastructure Act 2013 (c. 27) and S.I. 2017/1285.

[^f00060]: Section 125 was amended by section 190 of, and paragraph 17 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22).

[^f00061]: Section 4A was inserted by section 202(1) of the Housing and Planning Act 2016.

[^f00062]: Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

[^f00063]: Schedule 2A was inserted by section 199(1) of, and paragraph 3 of Schedule 17 to, the Housing and Planning Act 2016.

[^f00064]: Section 5 was amended by paragraphs 4 and 6 of Schedule 15 to the Housing and Planning Act 2016.

[^f00065]: Section 5A was inserted by section 182(2) of the Housing and Planning Act 2016.

[^f00066]: Section 5B was inserted by section 202(2) of Schedule 3 to the Housing and Planning Act 2016.

[^f00067]: Section 118 was amended by paragraphs 1 and 59 of Schedule 13, and Part 20 of Schedule 25, to the Localism Act 2011 (c.20) and section 92(4) of the Criminal Justice and Courts Act 2015 (c. 2).

[^f00068]: Section 6 was amended by section 4 of, and paragraph 52(2) of Schedule 2 to the Planning (Consequential Provisions) Act 1990 (c. 11) and paragraph 7 of Schedule 15 to the Housing and Planning Act 2016.

[^f00069]: Section 134 was amended by section 142 of, and Part 21 of Schedule 25 to, the Localism Act 2011 and S.I. 2017/16.

[^f00070]: Section 7 was amended by paragraphs 1 and 3 of Schedule 18 to the Housing and Planning Act 2016.

[^f00071]: Schedule A1 was inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016.

[^f00072]: Section 153(4A) was inserted by section 200(1) and (2) of the Housing and Planning Act 2016.

[^f00073]: Section 11 was amended by section 34(1) of, and paragraph 14(3) of Schedule 4 to, the Acquisition of Land Act 1981 (c.67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act (c. 71) section 14 of, paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186, 187 and 188 of, and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 and S.I. 2009/1307.

[^f00074]: Section 13 was amended by section 62(3) and 139 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00075]: 2003 c. 21. There are amendments to section 151(1) that are not relevant to this Order.

[^f00076]: 1981 c. 69.

[^f00077]: S.I. 2017/1012.

[^f00079]: Section 206(1) was amended by section 192(8) of, and paragraphs 7 and 11 of Schedule 8 to the 2008 Act.

[^f00080]: 1990 c. 43. There are amendments to this subsection which are not relevant to this Order.

[^f00081]: Section 82(2) was amended by section 5(2) of the Noise and Statutory Nuisance Act 1993 (c. 40). There are other amendments to the subsection that are not relevant to this Order.

[^f00082]: 1974 c. 40.

[^f00083]: Section 61(9) was amended by section 162 of, and paragraph 15(1) and (3) of Schedule 3 to, the Environmental Protection Act 1990 (c. 43). There are other amendments to this subsection which are not relevant to this Order.

[^f00084]: 1978 c. 30.

[^f00085]: 1857 c. 81. Section 25 was substituted by section 2 of the Church of England (Miscellaneous Provisions) Measure 2014 (No. 1) and amended by section 96(1) of, and paragraph 1 in Schedule 3 to, the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (No. 3).

[^f00086]: Section 22 was substituted by article 3 of S.I. 2013/1883 and amended by section 1(6) of, and paragraph 153 of Schedule 1 to, the Infrastructure Act 2015 (c. 7).

[^f00087]: Section 115(2) was amended by section 160(1) and (3) of the Housing and Planning Act 2016 (c. 22).

[^f00088]: 1990 c. 43. Section 78A was inserted by section 57 of the Environment Act 1995 (c. 25) and amended by section 86(2) of the Water Act 2003 (c. 37).

[^f00089]: 1971 c. 80.

[^f00090]: S.I. 2017/1012.

[^f00091]: 1971 c. 80.

[^f00092]: 1973 c. 26.

[^f00093]: Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

[^f00094]: Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

[^f00095]: Section 11B was inserted by section 187(3) of the Housing and Planning Act 2016.

[^f00096]: Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23) and paragraphs 2 and 4 of Schedule 16 to the Housing and Planning Act 2016.

[^f00097]: Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00098]: Section 20 was amended by paragraph 4 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.

[^f00099]: 1989 c. 29. The definition of “electrical plant” (in section 64) was amended by paragraphs 24 and 38(1) and (3) of Schedule 6 to the Utilities Act 2000 (c. 27).

[^f00100]: 1991 c. 56.

[^f00101]: Section 102(4) was amended by section 96(1)(c) of the Water Act 2003 (c. 37) and section 56 of, and paragraph 90 of Schedule 7 to, the Water Act 2014 (c. 21).

[^f00102]: Section 104 was amended by sections 96(4) and 101(2) of, and Part 3 of Schedule 9 to, the Water Act 2003, section 42(3) of the Flood and Water Management Act 2010 (c. 29) and section 11(1) and (2) of, and paragraphs 2 and 91 of Schedule 7 to the Water Act 2014.

[^f00103]: 2003 c. 21.

[^f00104]: Section 106 was amended by section 4(3) to (9) of the Digital Economy Act 2017 (c. 30).

[^f00105]: 1993 c. 43.

[^f00106]: 2006 c. 46.